[Federal Register Volume 78, Number 144 (Friday, July 26, 2013)]
[Proposed Rules]
[Pages 45116-45135]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18028]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2011-0868; EPA-R05-OAR-2012-0463; FRL-9837-8]


Approval and Promulgation of Air Quality Implementation Plans and 
Designation of Areas for Air Quality Planning Purposes; Ohio; 
Redesignation of Cleveland-Akron-Lorain Area to Attainment of the 1997 
Annual Standard and 2006 24-Hour Standard for Fine Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State of Ohio's requests to 
redesignate the Cleveland-Akron-Lorain area (Cleveland Area) to 
attainment for the 1997 annual and 2006 24-hour National Ambient Air 
Quality Standards (NAAQS or standards) for fine particulate matter 
(PM2.5). EPA's proposed approval involves several additional 
related actions. EPA is proposing to determine that the Cleveland area 
has attained the 1997 annual and 2006 24-hour PM2.5 
standards. EPA is proposing to approve, as revisions to the Ohio state 
implementation plan (SIP), the state's plans for maintaining the 1997 
annual and 2006 24-hour PM2.5 standards in the area. EPA is 
proposing to approve the ammonia, Volatile Organic Compound (VOC), 
nitrogen oxide (NOX), direct PM2.5, and sulfur 
dioxide (SO2) emission inventories submitted by the State as 
meeting the comprehensive emissions inventory requirement of the Clean 
Air Act (CAA). Finally, EPA finds adequate and is proposing to approve 
Ohio's NOX and direct PM2.5 Motor Vehicle 
Emission Budgets (MVEBs) for 2015 and 2022 for the Cleveland area. In 
the course of proposing to approve Ohio's request to redesignate the 
Cleveland area, EPA addresses a number of additional issues, including 
the effects of two decisions of the United States Court of Appeals for 
the District of Columbia (D.C. Circuit or Court): The Court's August 
21, 2012, decision to vacate and remand to EPA the Cross-State Air 
Pollution Rule (CSAPR) and the Court's January 4, 2013, decision to 
remand to EPA two final rules implementing the 1997 PM2.5 
standard.

DATES: Comments must be received on or before August 26, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Nos. EPA-R05-
OAR-2011-0868 and EPA-R05-OAR-2012-0463, by one of the following 
methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: Aburano.Douglas@epa.gov.
    3. Fax: (312) 408-2279.
    4. Mail: Doug Aburano, Chief, Attainment Planning and Maintenance 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand delivery: Doug Aburano, Chief, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, 18th floor, Chicago, 
Illinois 60604. Such deliveries are only accepted during the Regional 
Office normal hours of operation, and special arrangements should be 
made for deliveries of boxed information. The Regional Office official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID Nos. EPA-R05-OAR-
2011-0868 and EPA-R05-OAR-2012-0463. 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. For additional instructions

[[Page 45117]]

on submitting comments, go to Section I of this document, ``What Should 
I Consider as I Prepare My Comments for EPA?''
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
We recommend that you telephone Kathleen D'Agostino, Environmental 
Engineer, at (312) 886-1767 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Engineer, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
dagostino.kathleen@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. What is the background for the proposal?
III. What are the criteria for redesignation to attainment?
IV. What is EPA's analysis of the State's request?
    A. Attainment Determination and Redesignation
    1. The Area Has Attained the 1997 Annual and 2006 24-Hour 
PM2.5 NAAQS (Section 107(d)(3)(E)(i))
    2. The Area Has Met All Applicable Requirements Under Section 
110 and Part D; and the Area Has a Fully Approved SIP Under Section 
110(k) (Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
    3. The Improvement in Air Quality 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 (Section 
107(d)(3)(E)(iii))
    4. The Area Has a Fully Approved Maintenance Plan Pursuant to 
Section 175A of the CAA (Section 107(d)(3)(E)(iv))
    B. Comprehensive Emissions Inventories
    C. Ohio's MVEBs
V. Summary of Proposed Actions
VI. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background for the proposal?

    Fine particulate pollution can be emitted directly from a source 
(primary PM2.5) or formed secondarily through chemical 
reactions in the atmosphere involving precursor pollutants emitted from 
a variety of sources. Sulfates are a type of secondary particulate 
formed from SO2 emissions from power plants and industrial 
facilities. Nitrates, another common type of secondary particulate, are 
formed from combustion emissions of NOX from power plants, 
mobile sources and other combustion sources.
    The first air quality standards for PM2.5 were 
promulgated on July 18, 1997, at 62 FR 38652. EPA promulgated an annual 
standard at a level of 15 micrograms per cubic meter ([mu]g/m\3\) of 
ambient air, based on a three year average of annual mean 
PM2.5 concentrations at each monitoring site. In the same 
rulemaking, EPA promulgated a 24-hour PM2.5 standard at 65 
[mu]g/m\3\, based on a three year average of the 98th percentile of 24-
hour PM2.5 concentrations at each monitoring site.
    On January 5, 2005, at 70 FR 944, EPA published air quality area 
designations for the 1997 annual PM2.5 standard based on air 
quality data for calendar years 2001-2003. In that rulemaking, EPA 
designated the Cleveland area as nonattainment for the 1997 
PM2.5 air quality standards (70 FR 995). EPA defined the 
Cleveland nonattainment area to include Cuyahoga, Lake, Lorain, Medina, 
Portage, and Summit Counties and Ashtabula Township in Ashtabula 
County.
    On October 17, 2006, at 71 FR 61144, EPA retained the annual 
PM2.5 standard at 15 [mu]g/m\3\ (2006 annual 
PM2.5 standard), but revised the 24-hour standard to 35 
[mu]g/m\3\, based again on the three year average of the 98th 
percentile of 24-hour PM2.5 concentrations at each monitor.
    On November 13, 2009, at 74 FR 58688, EPA published air quality 
area designations for the 2006 24-hour PM2.5 standard. In 
that rulemaking, EPA designated the Cleveland area as nonattainment for 
the 2006 24-hour PM2.5 standard and defined the area to 
include Cuyahoga, Lake, Lorain, Medina, Portage, and Summit Counties. 
The Ashtabula Township in Ashtabula County was not included as part of 
the 2006 24-hour PM2.5 Cleveland nonattainment area. 
Ashtabula County was designated as unclassifiable/attainment.
    In response to legal challenges of the 2006 annual PM2.5 
standard, the D.C. Circuit remanded this standard to EPA for further 
consideration. See American Farm Bureau Federation and National Pork 
Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). On 
December 14, 2012, EPA finalized a rule revising the PM2.5 
annual standard to 12 [mu]g/m\3\ based on current scientific evidence 
regarding the protection of public health. EPA is not addressing the 
2012 annual PM2.5 standard in this proposal.
    On September 14, 2011, at 76 FR 56641, EPA issued a final 
determination that the Cleveland area attained the 1997 annual 
PM2.5 standard by the applicable attainment date of April 5, 
2010, based on certified ambient monitoring data for the 2007-2009 
monitoring period.
    On October 5, 2011, the Ohio Environmental Protection Agency (Ohio 
EPA) submitted a request to EPA to redesignate the Cleveland area to 
attainment for the 1997 annual PM2.5 NAAQS, and to approve 
the SIP revision containing an emissions inventory, maintenance plan 
and MVEBs for the area. On May 30, 2012, Ohio EPA submitted a similar 
request for the 2006 24-hour PM2.5 standard. In a 
supplemental submission to EPA on April 30, 2013, Ohio provided ammonia 
and VOC emissions inventories to

[[Page 45118]]

supplement the comprehensive emissions inventories submitted as part of 
the redesignation requests.
    In this proposed redesignation, EPA takes into account two recent 
decisions of the D.C. Circuit. In the first of the two Court decisions, 
the D.C. Circuit, on August 21, 2012, issued EME Homer City Generation, 
L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), which vacated and remanded 
CSAPR and ordered EPA to continue administering the Clean Air 
Interstate Rule (CAIR) ``pending . . . development of a valid 
replacement.'' EME Homer City at 38. The D.C. Circuit denied all 
petitions for rehearing on January 24, 2013. In the second decision, on 
January 4, 2013, in Natural Resources Defense Council v. EPA, the D.C. 
Circuit remanded to EPA the ``Final Clean Air Fine Particle 
Implementation Rule'' (72 FR 20586, April 25, 2007) and the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR 
28321, May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013).

III. What are the criteria for redesignation to attainment?

    The CAA sets forth the requirements for redesignating a 
nonattainment area to attainment. Specifically, section 107(d)(3)(E) of 
the CAA allows redesignation provided that: (1) The Administrator 
determines that the area has attained the applicable NAAQS; (2) the 
Administrator has fully approved the applicable SIP for the area under 
section 110(k) of the CAA; (3) the Administrator determines that the 
improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from the implementation of the 
applicable SIP, Federal emission control regulations, and other 
permanent and enforceable emission reductions; (4) the Administrator 
has fully approved a maintenance plan for the area meeting the 
requirements of section 175A of the CAA; and, (5) the state containing 
the area has met all requirements applicable to the area for purposes 
of redesignation under section 110 and part D of the CAA.

IV. What is EPA's analysis of the State's request?

A. Attainment Determination and Redesignation

    As noted above, on September 14, 2011, EPA determined that the 
Cleveland area had attained the 1997 annual PM2.5 standard 
by the applicable attainment date. EPA is proposing to determine that 
the Cleveland area continues to attain the 1997 annual standard and is 
attaining 2006 24-hour PM2.5 standard with certified 2010-
2012 monitoring data. EPA is also proposing to approve Ohio's 
maintenance plans for the area and to determine that the area has met 
all other applicable redesignation criteria under CAA section 
107(d)(3)(E). The basis for EPA's proposed approval of the 
redesignation requests is as follows:
1. The Area Has Attained the 1997 Annual and 2006 24-Hour 
PM2.5 NAAQS (Section 107(d)(3)(E)(i))
    In this action EPA is proposing to determine that the Cleveland 
area continues to attain the 1997 annual PM2.5 NAAQS. An 
area may be considered to be attaining the 1997 annual PM2.5 
NAAQS if there are no violations, as determined in accordance with 40 
CFR 50.7 and part 50, appendix N, based on three complete consecutive 
calendar years of quality-assured air quality monitoring data. To 
attain this standard, the three year average of annual means must not 
exceed 15.0 [mu]g/m\3\ at all relevant monitoring sites in the subject 
area. Under 40 CFR part 50, appendix N 4.1, a year of PM2.5 
data meets completeness requirements when at least 75 percent of the 
scheduled sampling days for each quarter have valid data.
    The redesignation request includes monitoring data for the 2008-
2010 time period. Certified monitoring data are also now available for 
the 2009-2011 and 2010-2012 time periods. Table 1, below, provides a 
summary of the PM2.5 annual air quality monitoring data for 
the years 2008-2012. Table 2, below, provides the three year average of 
annual means for the 2008-2010, 2009-2011 and 2010-2012 time periods.

                                            Table 1--Annual Mean PM2.5 Concentrations for the Cleveland Area
                                                                      [[mu]g/m\3\]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Yearly annual mean
                         County                               Monitor    -------------------------------------------------------------------------------
                                                                               2008            2009            2010            2011            2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cuyahoga................................................     39-035-0034            10.9            10.2            10.9            10.0             9.3
                                                             39-035-0038            14.1            12.8            14.0            12.6            12.3
                                                             39-035-0045            13.7            11.8            13.3            11.9            11.4
                                                             39-035-0060            14.1            12.3            13.7            12.5            12.8
                                                             39-035-0065            14.6            12.4            13.2            12.6            12.3
                                                             39-035-1002            12.0            10.9            11.3            10.4             9.7
Lake....................................................     39-085-0007  ..............            10.4            10.4             9.4             9.0
                                                             39-085-3002            11.5  ..............  ..............  ..............  ..............
Lorain..................................................     39-093-3002            11.4             9.9            10.4             9.4             9.5
Medina..................................................     39-103-0003            11.8            10.8            10.8  ..............  ..............
                                                             39-103-0004  ..............  ..............  ..............            11.0             9.3
Portage.................................................     39-133-0002            12.1            11.1            11.2            10.5             9.3
Summit..................................................     39-153-0017            13.8            12.6            13.4            11.8            10.8
                                                             39-153-0023            12.9            11.4            12.5            11.1            10.0
--------------------------------------------------------------------------------------------------------------------------------------------------------


           Table 2--Three Year Average of the Annual Mean PM2.5 Concentrations for the Cleveland Area
                                                  [[mu]g/m\3\]
----------------------------------------------------------------------------------------------------------------
                     County                           Monitor        2008-2010       2009-2011       2010-2012
----------------------------------------------------------------------------------------------------------------
Cuyahoga........................................     39-035-0034            10.7            10.4            10.1
                                                     39-035-0038            13.6            13.1            13.0
                                                     39-035-0045            12.9            12.3            12.2
                                                     39-035-0060            13.4            12.8            13.0

[[Page 45119]]

 
                                                     39-035-0065            13.4            12.7            12.7
                                                     39-035-1002            11.4            10.9            10.5
Lake............................................     39-085-0007            10.8            10.1             9.6
                                                     39-085-3002  ..............  ..............  ..............
Lorain..........................................     39-093-3002            10.6             9.9             9.7
Medina..........................................     39-103-0003            11.1  ..............  ..............
                                                     39-103-0004  ..............  ..............  ..............
Portage.........................................     39-133-0002            11.5            10.9            10.3
Summit..........................................     39-153-0017            13.3            12.6            12.0
                                                     39-153-0023            12.3            11.7            11.2
----------------------------------------------------------------------------------------------------------------

    Two monitors were operated in Lake County during the 2008-2012 time 
period. Site 39-085-3002 shut down on December 31, 2008 and site 39-
085-0007 began operating on January 1, 2009. EPA approved the 
combination of these monitors for purposes of calculating the design 
value.
    The data in Tables 1 and 2 show that all relevant PM2.5 
monitors in the Cleveland PM2.5 nonattainment area have 
recorded PM2.5 concentrations attaining the 1997 annual 
PM2.5 standard during the 2008-2010, 2009-2011, and 2010-
2012 time periods. On September 14, 2011, EPA determined that the 
Cleveland area had attained the 1997 annual PM2.5 standard 
by the applicable attainment date.
    Site 39-103-0003 in Medina County ceased operation on December 31, 
2010, collecting complete data for all quarters in 2008-2010. Site 39-
103-0004 began operation on September 1, 2009. However, because the 
site only began submitting data to EPA's Air Quality System in 2011, 
three years of data are not available for evaluation. Because the 
monitor in Medina County has historically recorded one of the lowest 
PM2.5 concentrations in the area, we are confident that EPA 
can rely on the other monitors in the area to determine that the area 
continues to attain the standard for the 2010-2012 time period. 
Therefore, based on complete, quality assured and certified 
PM2.5 monitoring data for the most recent, 2010-2012, time 
period, EPA concludes that the Cleveland area continues to attain the 
1997 annual PM2.5 standard.
    In this action EPA is proposing to determine that the Cleveland 
area has attained the 2006 24-hour PM2.5 NAAQS based on 
complete quality assured, certified data for the 2010-2012 monitoring 
period. An area may be considered to be attaining the 2006 24-hour 
PM2.5 NAAQS if there are no violations, as determined in 
accordance with 40 CFR 50.13 and part 50, appendix N, based on three 
complete consecutive calendar years of quality-assured air quality 
monitoring data. To attain this standard, the three year average of the 
98th percentile 24-hour concentration must not exceed 35 [mu]g/m\3\ at 
all relevant monitoring sites in the subject area. Under 40 CFR part 
50, appendix N 4.1, a year of PM2.5 data meets completeness 
requirements when at least 75 percent of the scheduled sampling days 
for each quarter have valid data.
    The redesignation request includes monitoring data for the 2008-
2010 time period. Certified monitoring data are also now available for 
the 2009-2011 and 2010-2012 time periods. Table 3, below, provides a 
summary of the PM2.5 24-hour air quality monitoring data for 
the years 2008-2012. Table 4, below, provides the three year average of 
98th percentile 24-hour concentrations for the 2008-2010, 2009-2011 and 
2010-2012 time periods.

                                      Table 3--98th Percentile 24-Hour PM2.5 Concentrations for the Cleveland Area
                                                                     [[micro]g/m\3\]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              98th percentile 24-hour concentrations
                         County                               Monitor    -------------------------------------------------------------------------------
                                                                               2008            2009            2010            2011            2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cuyahoga................................................     39-035-0034            31.5            24.7            26.8            22.6            19.5
                                                             39-035-0038            39.4            29.9            30.5            29.7            28.8
                                                             39-035-0045            35.3            23.5            32.7            25.2            24.5
                                                             39-035-0060            36.9            28.9            30.9            26.5            33.5
                                                             39-035-0065            33.8            28.9            27.3            27.0            23.3
                                                             39-035-1002            30.1            20.5            26.5            23.9            19.9
Lake....................................................     39-085-0007  ..............            19.8            26.9            23.3            19.4
                                                             39-085-3002            28.0  ..............  ..............  ..............  ..............
Lorain..................................................     39-093-3002            32.1            21.5            24.4            23.1            22.0
Medina..................................................     39-103-0003            30.3            25.7            28.8  ..............  ..............
                                                             39-103-0004  ..............  ..............  ..............            25.0            19.1
Portage.................................................     39-133-0002            29.4            23.8            31.9            23.2            18.2
Summit..................................................     39-153-0017            37.6            29.2            32.7            26.4            20.3
                                                             39-153-0023            32.7            24.8            30.2            24.8            19.8
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 45120]]


     Table 4--Three Year Average of the 98th Percentile 24-Hour PM2.5 Concentrations for the Cleveland Area
                                                 [[micro]g/m\3\]
----------------------------------------------------------------------------------------------------------------
                     County                           Monitor        2008-2010       2009-2011       2010-2012
----------------------------------------------------------------------------------------------------------------
Cuyahoga........................................     39-035-0034              28              25              23
                                                     39-035-0038              33              30              29
                                                     39-035-0045              31              27              27
                                                     39-035-0060              32              29              30
                                                     39-035-0065              30              28              26
                                                     39-035-1002              26              24              23
Lake............................................     39-085-0007              25              23              23
                                                     39-085-3002              25  ..............  ..............
Lorain..........................................     39-093-3002              26              23              23
Medina..........................................     39-103-0003              28  ..............  ..............
                                                     39-103-0004  ..............  ..............  ..............
Portage.........................................     39-133-0002              28              26              24
Summit..........................................     39-153-0017              33              29              26
                                                     39-153-0023              29              27              25
----------------------------------------------------------------------------------------------------------------

    The data in Tables 3 and 4 show all relevant PM2.5 
monitors in the Cleveland PM2.5 nonattainment area have 
recorded PM2.5 concentrations attaining the 2006 24-hour 
PM2.5 NAAQS during the 2008-2010, 2009-2011, and 2010-2012 
time periods. As with the annual standard, EPA combined data from two 
monitors in Lake County as Ohio requested. Both of these sites 
collected complete monitoring data during the quarters the monitors 
were operated.
    As noted previously, two monitors were also operated in Medina 
County during the 2008-2012 time period. Site 39-103-0003 ceased 
operation on December 31, 2010, collecting complete data for all 
quarters in 2008-2010. Site 39-103-0004 began operation on September 1, 
2009, began submitting data to EPA's Air Quality System in 2011, and 
does not have three years of data available for evaluation. Because the 
monitor in Medina County has historically recorded one of the lowest 
PM2.5 concentrations in the area, we are confident that EPA 
can rely on the other monitors in the area to determine that the area 
is attaining the standard for the 2010-2012 time period.
    Data for monitoring site 39-035-0060 are incomplete in 2009. 
However, data for the other sites in Cuyahoga County are complete and 
well below the 24-hour standard, with the highest 98th percentile 24-
hour concentration being 29.9 [mu]g/m\3\ at site 39-035-0038, the 
historical design value site. In addition, complete, quality-assured 
and certified PM2.5 monitoring data at site 39-035-0060 for 
the most recent, 2010-2012, time period, show attainment of the 2006 
24-hour PM2.5 standard. Therefore, based on complete, 
quality-assured and certified PM2.5 monitoring data for the 
most recent, 2010-2012, time period, EPA concludes that the Cleveland 
area is attaining the 2006 24-hour PM2.5 standard.
2. The Area Has Met All Applicable Requirements Under Section 110 and 
Part D; and the Area Has a Fully Approved SIP Under Section 110(k) 
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
    We have determined that Ohio's SIP meets all applicable SIP 
requirements for purposes of redesignation for the Cleveland area under 
section 110 of the CAA (general SIP requirements) and all SIP 
requirements currently applicable for purposes of redesignation under 
part D of title I of the CAA, in accordance with section 
107(d)(3)(E)(v). In addition, with the exception of the emissions 
inventory under section 172(c)(3), we have approved all applicable 
requirements of the Ohio SIP for purposes of redesignation, in 
accordance with section 107(d)(3)(E)(ii). As discussed below, in this 
action EPA is proposing to approve Ohio's 2005 and 2008 emissions 
inventories as meeting the section 172(c)(3) comprehensive emissions 
inventory requirement.
    In making these determinations, we have ascertained which SIP 
requirements are applicable to the area for purposes of redesignation, 
and have determined that there are SIP measures meeting those 
requirements and that they are fully approved under section 110(k) of 
the CAA.
a. The Cleveland Area Has Met All Applicable Requirements for Purposes 
of Redesignation Under Section 110 and Part D of the CAA
i. Section 110 General SIP Requirements
    Section 110(a) of title I of the CAA contains the general 
requirements for a SIP. Section 110(a)(2) provides that the 
implementation plan submitted by a state must have been adopted by the 
state after reasonable public notice and hearing, and, among other 
things, must: (1) Include enforceable emission limitations and other 
control measures, means or techniques necessary to meet the 
requirements of the CAA; (2) provide for establishment and operation of 
appropriate devices, methods, systems, and procedures necessary to 
monitor ambient air quality; (3) provide for implementation of a source 
permit program to regulate the modification and construction of any 
stationary source within the areas covered by the plan; (4) include 
provisions for the implementation of part C, Prevention of Significant 
Deterioration (PSD) and part D, New Source Review (NSR) permit 
programs; (5) include criteria for stationary source emission control 
measures, monitoring, and reporting; (6) include provisions for air 
quality modeling; and, (7) provide 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 measures 
to prevent sources in a state from significantly contributing to air 
quality problems in another state. EPA holds that the requirements 
linked with a particular nonattainment area's designation are the 
relevant measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state. Thus, we conclude that these requirements should not 
be construed to be applicable requirements for purposes of 
redesignation.
    Further, we conclude that the other section 110 elements described 
above

[[Page 45121]]

that are not connected with nonattainment plan submissions and not 
linked with an area's attainment status are also not applicable 
requirements for purposes of redesignation. A state remains subject to 
these requirements after an area is redesignated to attainment. We 
conclude that only the section 110 and part D requirements that are 
linked with a particular area's designation are the relevant measures 
which we may consider in evaluating a redesignation request. This 
approach is consistent with EPA's existing policy on applicability of 
conformity and oxygenated fuels requirements for redesignation 
purposes, as well as with section 184 ozone transport requirements. See 
Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-
53176, October 10, 1996) and (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 1-hour ozone 
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, 
Pennsylvania 1-hour ozone redesignation (66 FR 50399, October 19, 
2001).
    We have reviewed the Ohio SIP and have concluded that it meets the 
general SIP requirements under section 110 of the CAA to the extent 
they are applicable for purposes of redesignation. EPA has previously 
approved provisions of Ohio's SIP addressing section 110 requirements, 
including provisions addressing particulate matter, at 40 CFR 52.1870. 
On December 5, 2007, and September 4, 2009, Ohio made submittals 
addressing ``infrastructure SIP'' elements required by section 
110(a)(2) of the CAA. EPA approved elements of Ohio's submittals on 
July 13, 2011, at 76 FR 41075. The requirements of section 110(a)(2), 
however, are statewide requirements that are not linked to the 
PM2.5 nonattainment status of the Cleveland area. Therefore, 
EPA believes that these SIP elements are not applicable requirements 
for purposes of review of the state's PM2.5 redesignation 
requests.
ii. Part D Requirements
    EPA is proposing to determine that, upon approval of the base year 
emissions inventories discussed in section IV.B. of this rulemaking, 
the Ohio SIP will meet the applicable SIP requirements for the 
Cleveland area applicable for purposes of redesignation under part D of 
the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, 
sets forth the basic nonattainment requirements applicable to all 
nonattainment areas. Subpart 4 of part D, found in sections 185-190 of 
the CAA, provides more specific requirements for particulate matter 
nonattainment areas.
(1) Subpart 1
(a) Section 172 Requirements
    For purposes of evaluating these redesignation requests, the 
applicable section 172 SIP requirements for the Cleveland area are 
contained in sections 172(c)(1)-(9). A thorough discussion of the 
requirements contained in section 172 can be found in the General 
Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
    Section 172(c)(1) requires the plans for all nonattainment areas to 
provide for the implementation of all Reasonably Available Control 
Measures (RACM) as expeditiously as practicable and to provide for 
attainment of the primary NAAQS. EPA interprets this requirement to 
impose a duty on all nonattainment areas to consider all available 
control measures and to adopt and implement such measures as are 
reasonably available for implementation in each area as components of 
the area's attainment demonstration. Because attainment has been 
reached, no additional measures are needed to provide for attainment, 
and section 172(c)(1) requirements are no longer considered to be 
applicable as long as the area continues to attain the standard until 
redesignation. See 40 CFR 51.1004(c).
    The Reasonable Further Progress (RFP) requirement under section 
172(c)(2) is defined as progress that must be made toward attainment. 
This requirement is not relevant for purposes of this redesignation 
because the Cleveland area is monitoring attainment of the 1997 annual 
and 2006 24-hour PM2.5 NAAQS. Id. The requirement to submit 
the section 172(c)(9) contingency measures is similarly not applicable 
for purposes of this redesignation. Id.
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate, and current inventory of actual emissions. 
Ohio submitted 2005 and 2008 emissions inventories along with their 
redesignation request and supplemented the inventories on April 30, 
2013. As discussed below in section IV.B., EPA is proposing to approve 
the 2005 and 2008 emission inventories as meeting the section 172(c)(3) 
emissions inventory requirement for the Cleveland area.
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources in an 
area, and 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 approved Ohio's current NSR 
program on January 10, 2003 (68 FR 1366). Nonetheless, since PSD 
requirements will apply after redesignation, the area need not have a 
fully-approved NSR program for purposes of redesignation, provided that 
the area demonstrates maintenance of the NAAQS without part D NSR. 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.'' Ohio has demonstrated that 
the Cleveland area will be able to maintain the standard without part D 
NSR in effect; therefore, the state need not have a fully approved part 
D NSR program prior to approval of the redesignation request. The 
state's PSD program will become effective in the Cleveland area upon 
redesignation to attainment. See 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).
    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached, no additional measures are needed to provide for 
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted above, we find that the Ohio 
SIP meets the section 110(a)(2) requirements applicable for purposes of 
redesignation.
(b) Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally-supported or funded activities, 
including highway projects, conform to the air quality planning goals 
in the applicable SIPs. The requirement to determine conformity applies 
to transportation plans, programs, and projects developed, funded, or 
approved under Title 23 of the U.S. Code and the Federal Transit Act 
(transportation conformity) as well as to all other Federally-supported 
or funded projects (general conformity).

[[Page 45122]]

    Section 176(c) of the CAA was amended by provisions contained in 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU), which was signed into law on August 10, 
2005 (Pub. L. 109-59). Among the changes Congress made to this section 
of the CAA were streamlined requirements for state transportation 
conformity SIPs. State transportation conformity regulations must be 
consistent with Federal conformity regulations and address three 
specific requirements related to consultation, enforcement and 
enforceability. EPA believes that it is reasonable to interpret the 
transportation conformity SIP requirements as not applying for purposes 
of evaluating the redesignation request under section 107(d) for two 
reasons.
    First, the requirement to submit SIP revisions to comply with the 
transportation conformity provisions of the CAA continues to apply to 
areas after redesignation to attainment since such areas would be 
subject to a section 175A maintenance plan. Second, EPA's Federal 
conformity rules require the performance of conformity analyses in the 
absence of Federally-approved state rules. Therefore, because areas are 
subject to the transportation conformity requirements regardless of 
whether they are redesignated to attainment and, because they must 
implement conformity under Federal rules if state rules are not yet 
approved, EPA believes it is reasonable to view these requirements as 
not applying for purposes of evaluating a redesignation request. See 
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this 
interpretation. See also 60 FR 62748, 62749-62750 (Dec. 7, 1995) 
(Tampa, Florida).
    EPA approved Ohio's general conformity SIP on March 11, 1996 (61 FR 
9646) and Ohio's transportation conformity SIP on and May 30, 2000 (65 
FR 34395), and April 27, 2007 (72 FR 20945). Ohio is in the process of 
updating its approved transportation conformity SIP, and EPA will 
review its provisions when they are submitted.
    Ohio has submitted onroad MVEBs for the Cleveland area of 1,371.35 
tons per year (tpy) and 880.89 tpy primary PM2.5 and 
35,094.70 tpy and 17,263.65 tpy NOX for the years 2015 and 
2022, respectively. The area must use the MVEBs from the maintenance 
plan in any conformity determination that is made on or after the 
effective date of the adequacy finding and maintenance plan approval.
(2) Effect of the January 4, 2013, D.C. Circuit Decision Regarding 
PM2.5 Implementation Under Subpart 4
(a) Background
    As discussed above, on January 4, 2013, in Natural Resources 
Defense Council v. EPA, the D.C. Circuit 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 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. Although the Court's ruling did not directly address the 2006 
PM2.5 standard, EPA is taking into account the Court's 
position on subpart 4 and the 1997 PM2.5 standard in 
evaluating redesignations for the 2006 standard.
(b) Proposal on This Issue
    EPA is proposing to determine that the Court's January 4, 2013, 
decision does not prevent EPA from redesignating the Cleveland area to 
attainment. Even in light of the 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 Cleveland redesignation requests and disregards the provisions of 
its 1997 PM2.5 implementation rule recently remanded by the 
Court, the state's requests for redesignation of this area still 
qualify for approval. EPA's discussion takes into account the effect of 
the Court's ruling on the area's maintenance plans, which EPA views as 
approvable when subpart 4 requirements are considered.
(i) Applicable Requirements for Purposes of Evaluating the 
Redesignation Requests
    With respect to the 1997 PM2.5 Implementation Rule, the 
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 Ohio's redesignation requests for the 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 CAA 
section 107(d)(3)(E), and thus EPA is not required to consider subpart 
4 requirements with respect to the Cleveland redesignation. Under its 
longstanding interpretation of the CAA, EPA has interpreted section 
107(d)(3)(E) to mean, as a threshold matter, that the part D provisions 
which are ``applicable'' and which must be approved in order for EPA to 
redesignate an area include only those which came due prior to a 
state's submittal of a complete redesignation request. See ``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 Ohio submitted 
its redesignation requests, requirements under subpart 4

[[Page 45123]]

were not due, and indeed, were not yet known to apply.
---------------------------------------------------------------------------

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

    EPA's view that, for purposes of evaluating the Cleveland 
redesignation, the subpart 4 requirements were not due at the time the 
state submitted the redesignation requests is in keeping with the EPA's 
interpretation of subpart 2 requirements for subpart 1 ozone areas 
redesignated subsequent to the D.C. Circuit's decision in South Coast 
Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South 
Coast, the 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).
    EPA's interpretation derives from the provisions of CAA Section 
107(d)(3). 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 the 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 
Court's January 4, 2013, decision in NRDC v. EPA compound the 
consequences of imposing requirements that come due after the 
redesignation requests are submitted. The state submitted its 
redesignation requests on October 5, 2011, and May 30, 2012, but the 
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 the state's fully-completed and pending redesignation 
requests to comply now with requirements of subpart 4 that the Court 
announced only in its January, 2013, decision on the 1997 
PM2.5 implementation rule, would be to give retroactive 
effect to such requirements when the state had no notice that it was 
required to meet them. The D.C. Circuit 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 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 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 Court rejected this view, stating that 
applying it ``would likely impose large costs on states, which would 
face fines and suits for not implementing air pollution prevention 
plans . . . even though they were not on notice at the time.'' Id. at 
68. Similarly, it would be unreasonable to penalize the state of Ohio 
by rejecting its redesignation requests for an area that is already 
attaining the 1997 and 2006 PM2.5 standards and that met all 
applicable requirements known to be in effect at the time of the 
requests. For EPA now to reject the redesignation requests solely 
because the state did not expressly address subpart 4 requirements of 
which it had no notice, would inflict the same unfairness condemned by 
the Court in Sierra Club v. Whitman.
---------------------------------------------------------------------------

    \2\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit 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).
---------------------------------------------------------------------------

(ii) Subpart 4 Requirements and Ohio's Redesignation Requests
    Even if EPA were to take the view that the Court's January 4, 2013, 
decision requires that, in the context of pending redesignations for 
the 1997 and 2006 PM2.5 standards, subpart 4 requirements 
were due and in effect at the time the state submitted its 
redesignation requests, EPA proposes to determine that the Cleveland 
area still qualifies for redesignation to attainment. As explained 
below, EPA believes that the redesignation request for the Cleveland 
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 Cleveland 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

[[Page 45124]]

for PM10 \3\ nonattainment areas, and under the 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 PM-10 
requirements.'' 57 FR 13538 (April 16, 1992). The subpart 1 
requirements include, among other things, provisions for attainment 
demonstrations, reasonably available control measures (RACM), RFP, 
emissions inventories, and contingency measures.
---------------------------------------------------------------------------

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

    For the purposes of this redesignation, in order to identify any 
additional requirements which would apply under subpart 4, we are 
considering the Cleveland 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 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:

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

    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.

``General Preamble for the Interpretation of Title I of the Clean Air 
Act Amendments of 1990''; (57 FR 13498, 13564, April 16, 1992).
    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 Court's January 
4, 2013, decision in NRDC v. EPA to mean that attainment-related 
requirements specific to subpart 4 should be imposed retroactively \6\ 
and thus are now past due, those requirements do not apply to an area 
that is attaining the 1997 and 2006 PM2.5 standards, for the 
purpose of evaluating a pending request to redesignate the area to 
attainment. EPA has consistently enunciated this interpretation of 
applicable requirements under section 107(d)(3)(E) since the General 
Preamble was published more than twenty years ago. Courts have 
recognized the scope of EPA's authority to interpret ``applicable 
requirements'' in the redesignation context. See Sierra Club v. EPA, 
375 F.3d 537 (7th Cir. 2004).
---------------------------------------------------------------------------

    \6\ As EPA has explained above, we do not believe that the 
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.
    Elsewhere in this notice, EPA proposes to determine that the area 
has attained the 2006 PM2.5 standard and continues to attain 
the 1997 PM2.5 standard. Under its longstanding

[[Page 45125]]

interpretation, EPA is proposing to determine here that the area meets 
the attainment-related plan requirements of subparts 1 and 4.
    Thus, EPA is proposing to conclude that the requirements to submit 
an attainment demonstration under 189(a)(1)(B), a RACM determination 
under section 172(c)(1) and section 189(a)(1)(c), a RFP demonstration 
under 189(c)(1), and contingency measure requirements under section 
172(c)(9) are satisfied for purposes of evaluating the redesignation 
requests.
(iii) Subpart 4 and Control of PM2.5 Precursors
    The D.C. Circuit 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 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, CAA section 
189(e) specifically provides that control requirements for major 
stationary sources of direct PM10 shall also apply to 
PM10 precursors from those sources, except where EPA 
determines that major stationary sources of such precursors ``do not 
contribute significantly to PM10 levels which exceed the 
standard in the area.''
    EPA's 1997 PM2.5 implementation rule, remanded by the 
D.C. Circuit, 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 ammonia] as . . . PM2.5 attainment plan 
precursor[s] and to evaluate sources of VOC [and ammonia] emissions in 
the State for control measures.'' EPA intended these to be rebuttable 
presumptions. EPA established these presumptions at the time because of 
uncertainties regarding the emission inventories for these pollutants 
and the effectiveness of specific control measures in various regions 
of the country in reducing PM2.5 concentrations. EPA also 
left open the possibility for such regulation of VOC and ammonia in 
specific areas where that was necessary.
    The 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 volatile organic compounds and 
ammonia are not PM2.5 precursors, as subpart 4 expressly 
governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
    Elsewhere in the Court's opinion, however, the Court observed:

    Ammonia is a precursor to fine particulate matter, making it a 
precursor to both PM2.5 and PM10. For a 
PM10 nonattainment area governed by subpart 4, a 
precursor is presumptively regulated. See 42 U.S.C. 7513a(e) 
[section 189(e)].

Id. at 21, n.7.

    For a number of reasons, EPA believes that its proposed 
redesignation of the Cleveland area is consistent with the Court's 
decision on this aspect of subpart 4. First, while the Court, citing 
section 189(e), stated that ``for a PM10 area governed by 
subpart 4, a precursor is `presumptively regulated,' '' the Court 
expressly declined to decide the specific challenge to EPA's 1997 
PM2.5 implementation rule provisions regarding ammonia and 
VOC as precursors. The 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 requests, and disregards the implementation rule's 
rebuttable presumptions regarding ammonia and VOC as PM2.5 
precursors (and any similar provisions reflected in the guidance for 
the 2006 PM2.5 standard), 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 the Cleveland area EPA believes that doing so is consistent 
with proposing redesignation of the area for the 1997 and 2006 
PM2.5 standards. The Cleveland area has attained the 
standards without any specific additional controls of VOC and ammonia 
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 ammonia 
and VOC. Thus we must address here whether additional controls of 
ammonia and VOC from major stationary sources are required under 
section 189(e) of subpart 4 in order to redesignate the area for the 
1997 PM2.5 standard. As explained below, we do not believe 
that any additional controls of ammonia 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). 57 FR 13542. EPA in this proposal proposes to determine that 
the SIP has met the provisions of section 189(e) with respect to 
ammonia and VOCs as precursors. This proposed determination is based on 
our findings that (1) the Cleveland area contains no major stationary 
sources of ammonia, 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 area, which is attaining the 1997 
annual PM2.5 standard and the 2006 24-hour standard, at 
present ammonia and VOC precursors from major stationary sources do not 
contribute significantly to levels exceeding the 1997 PM2.5 
standard in the Cleveland area. See 57 FR 13539-42.
---------------------------------------------------------------------------

    \8\ The Cleveland area has reduced VOC emissions through the 
implementation of various control programs including VOC Reasonably 
Available Control Technology regulations 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

[[Page 45126]]

continue to maintain the standard. Thus, even if we regard the Court's 
January 4, 2013, decision as calling for ``presumptive regulation'' of 
ammonia 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 Ohio 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 Cleveland area has already attained the 1997 
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 Court's decision is construed to impose an 
obligation, in evaluating these redesignation requests, to consider 
additional precursors under subpart 4, it would not affect EPA's 
approval here of Ohio's requests for redesignation of the Cleveland 
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 Court as precluding 
redesignation of the Cleveland area to attainment for the 1997 annual 
and 2006 24-hour PM2.5 NAAQS at this time.
---------------------------------------------------------------------------

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

    In sum, even if Ohio were required to address precursors for the 
Cleveland 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).
(iv) Maintenance Plan and Evaluation of Precursors
    A discussion of the impact of the Court's decision on the 
maintenance plan required under sections 175A and 107(d)(3)(E)(iv) can 
be found in section IV.A.4.d. below.
b. The Cleveland Area Has a Fully Approved Applicable SIP Under Section 
110(k) of the CAA
    Upon final approval of Ohio's comprehensive 2005 and 2008 emissions 
inventories, EPA will have fully approved the Ohio SIP for the 
Cleveland area under section 110(k) of the CAA for all requirements 
applicable for purposes of redesignation. EPA may rely on prior SIP 
approvals in approving a redesignation request (See page 3 of the 
Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. 
Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 
426 (6th Cir. 2001)) plus any additional measures it may approve in 
conjunction with a redesignation action. See 68 FR 25413, 25426 (May 
12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and 
submitted, and EPA has fully approved, provisions addressing various 
required SIP elements under particulate matter standards. In this 
action, EPA is proposing to approve Ohio's 2005 and 2008 emissions 
inventories for the Cleveland area as meeting the requirement of 
section 172(c)(3) of the CAA. No Cleveland area SIP provisions are 
currently disapproved, conditionally approved, or partially approved.
3. The Improvement in Air Quality 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. (Section 107(d)(3)(E)(iii))
    EPA finds that Ohio has demonstrated that the observed air quality 
improvement in the Cleveland 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 showing, Ohio EPA has calculated the change in 
emissions between 2005, one of the years in the period during which the 
Cleveland area monitored nonattainment, and 2008, one of the years in 
the period during which the Cleveland area monitored attainment. The 
reduction in emissions and the corresponding improvement in air quality 
over this time period can be attributed to a number of regulatory 
control measures that the Cleveland area and upwind areas have 
implemented in recent years.
a. Permanent and Enforceable Controls Implemented
    The following is a discussion of permanent and enforceable measures 
that have been implemented in the area:
i. Consent Decrees
    Some of the emissions reductions resulting from the consent decrees 
occurred during the attainment period, while other reductions will aid 
in maintenance of the standards.
    A March 18, 2005, consent decree with Ohio Edison Company required 
the Eastlake Power Plant, located in Eastlake, Ohio, to reduce 
NOX emissions by 11,000 tpy beginning in 2007. Beginning in 
September 2011, the Eastlake plant was only be used for emergency power 
purposes. The facility is now scheduled to completely shut down in 
2015.
    A December 9, 2005, consent decree required Saint Gobain 
Performance Plastics Corporation to pay, in addition to a civil 
penalty, $12,000 to Ohio EPA's Clean Diesel School Bus Program Fund.
    A September 30, 2011, consent agreement and final order requires 
Potters Industries, Inc. to retrofit a fleet, fleets, or portion 
thereof, of diesel buses or diesel vehicles contracted for public use, 
located within 50 miles of Cleveland. Potters Industries is required to 
spend a minimum of $50,000 and complete the project by May 18, 2012.
    A May 11, 2012, consent order and final judgement between Ohio and 
Procex, Ltd. requires several actions by Procex, including implementing 
the following no later than November 30, 2012: (1) An air pollution 
capture system for the collection of particulate emissions from 
emissions units P003, P005, and P007, and associated operations; (2) 
ductwork and an exhaust fan to transfer the collected emissions from 
the air pollution capture system for all four emissions units to air 
pollution

[[Page 45127]]

control equipment; and, (3) air pollution control equipment that meets 
a total hourly particulate emissions limit of 1.65 pounds/hour. Procex 
is also required to contribute $2,000 to Ohio EPA's Clean Diesel School 
Bus Program Fund by April 30, 2014.
    A September 28, 2012, consent agreement and final order order with 
Charter Manufacturing Company, Inc. requires the following which had 
already been completed by Charter Manufacturing: (1) By August 2010, 
modification of the existing canopy area to better contain and evacuate 
emissions; (2) by June 1, 2012, submission to EPA of a protocol to 
performance test the melt shop baghouse; (3) by July 1, 2012, 
performance testing of the melt shop baghouse; and, (4) by August 15, 
2012, submission to EPA of a report of the performance testing results. 
In addition, Charter Manufacturing is required to: (1) Submit an 
application to Ohio EPA requesting the conditions and emission rates 
associated with stainless steel production be removed from title V and 
other air permits; (2) comply with the melt shop baghouse pressure drop 
operational and monitoring requirements specified in the administrative 
consent order; and, (3) keep the door at the west end of the melt shop 
closed, except for times when a scrap car needs to enter or exit the 
melt shop.
ii. Federal Emission Control Measures
    Reductions in fine particle precursor emissions have occurred 
statewide and in upwind areas 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:
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards. These emission control requirements result in lower VOC, 
NOX, and SO2 emissions from new cars and light 
duty trucks. The Federal rules were phased in between 2004 and 2009. 
The EPA has estimated that, by the time post-2009 vehicles have 
entirely replaced pre-2009 vehicles, the following vehicle 
NOX emission reductions will have occurred nationwide: 
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 to 95 percent). Some of 
the emissions reductions resulting from new vehicle standards occurred 
during the 2008-2010 attainment period; however additional reductions 
will continue to occur throughout the maintenance period 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. Gasoline sold in the region including Ohio prior to 
implementation of the Tier 2 sulfur content limits had an average 
sulfur content of 276 ppm.\11\
---------------------------------------------------------------------------

    \11\ See Regulatory Impact Analysis--Control of Air Pollution 
from New Motor Vehicles: Tier 2 Motor Vehicle Emissions Standards 
and Gasoline Sulfur Control Requirements, December 1999, EPA420-R-
99-023, p. IV-42.
---------------------------------------------------------------------------

    Heavy-Duty Diesel Engine Rule. This rule, which EPA issued in July 
2000, limited the sulfur content of diesel fuel beginning in 2004. A 
second phase took effect in 2007 which reduced fine particle 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 primary 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 content diesel. The reductions in fuel sulfur content 
occurred by the 2008-2010 attainment period. Some of the emissions 
reductions resulting from new vehicle standards occurred during the 
2008-2010 attainment period, however additional reductions will 
continue to occur throughout the maintenance period as the fleet of 
older heavy duty diesel engines turns over. The reduction in fuel 
sulfur content also yielded an immediate reduction in sulfate particle 
emissions from all diesel vehicles.
    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 equipment, which established engine emission 
standards to be phased in between 2008 and 2014. The rule also required 
reductions to 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. The 
combined engine and fuel rules will reduce NOX and PM 
emissions from large nonroad diesel engines by over 90 percent, 
compared to current nonroad engines using higher sulfur content diesel. 
The reduction in fuel sulfur content yielded an immediate reduction in 
sulfate particle emissions from all diesel vehicles. In addition, some 
emissions reductions from the new engine emission standards were 
realized over the 2008-2010 time period, although most of the 
reductions will occur over the maintenance period as the fleet of older 
nonroad diesel engines turns over.
    Nonroad Large Spark-Ignition Engine and Recreational Engine 
Standards. In November 2002, EPA promulgated emission standards for 
groups of previously unregulated nonroad engines. These engines include 
large spark-ignition engines such as those used in forklifts and 
airport ground-service equipment; recreational vehicles using spark-
ignition engines such as off-highway motorcycles, all-terrain vehicles, 
and snowmobiles; and recreational marine diesel engines. Emission 
standards from large spark-ignition engines were implemented in two 
tiers, with Tier 1 starting in 2004 and Tier 2 in 2007. Recreational 
vehicle emission standards are being phased in from 2006 through 2012. 
Marine Diesel engine standards were phased in from 2006 through 2009. 
With full implementation of all of the nonroad spark-ignition engine 
and recreational engine standards, an overall 72 percent reduction in 
VOC, 80 percent reduction in NOX and 56 percent reduction in 
carbon monoxide (CO) emissions are expected by 2020. Some of these 
emission reductions occurred by the 2008-2010 attainment period and 
additional emission reductions will occur during the maintenance period 
as the fleet turns over.
iii. Control Measures Implemented in Ohio and in Upwind Areas
    Given the significance of sulfates and nitrates in the Cleveland 
area, the area's air quality is strongly affected by regulation of 
SO2 and NOX emissions from power plants.
    NOX SIP Call. On October 27, 1998 (63 FR 57356), EPA issued a 
NOX SIP Call requiring the District of Columbia and 22 
states to reduce emissions of NOX. Affected states were 
required to comply with Phase I of the SIP Call beginning in 2004, and 
Phase II beginning in 2007. Emission reductions resulting from 
regulations developed in response to the NOX SIP Call are 
permanent and enforceable.
    CAIR and CSAPR. EPA promulgated CSAPR (76 FR 48208, August 8, 
2011), to replace CAIR, which has been in place since 2005. See 76 FR 
59517. CAIR requires significant reductions in emissions of 
SO2 and NOX from electric generating units to 
limit the interstate transport of these pollutants and the ozone and 
fine particulate matter they form in the atmosphere. See 76 FR 70093. 
The D.C. Circuit 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

[[Page 45128]]

benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 
(D.C. Cir. 2008).
    On December 30, 2011, the D.C. Circuit 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 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 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 issued a decision to vacate 
CSAPR. In that decision, it also ordered EPA to continue administering 
CAIR ``pending the promulgation of a valid replacement.'' EME Homer 
City, 696 F.3d at 38. The D.C. Circuit denied all petitions for 
rehearing on January 24, 2013. EPA and other parties filed petitions 
for certiorari to the U.S. Supreme Court. On June 24, 2013, the Supreme 
Court granted certiorari and agreed to review the D.C. Circuit's 
decision in EME Homer City. The Supreme Court's grant of certiorari, by 
itself, does not alter the status of CAIR or CSAPR. At this time, CAIR 
remains in place.
    In light of these unique circumstances and for the reasons 
explained below, to the extent that attainment is due to emission 
reductions associated with CAIR, EPA is here proposing to determine 
that those reductions are sufficiently permanent and enforceable for 
purposes of CAA sections 107(d)(3)(E)(iii) and 175A. EPA therefore 
proposes to approve the redesignation requests and the related SIP 
revisions for the Cleveland area, including Ohio's plan for maintaining 
attainment of the PM2.5 standard.
    As directed by the D.C. Circuit, CAIR remains in place and 
enforceable until substituted by a valid replacement rule. Ohio 
submitted a CAIR SIP which was approved by EPA on February 1, 2008 (73 
FR 6034). On July 15, 2009 Ohio submitted revisions to its CAIR SIP, 
which EPA approved on September 25, 2009 (74 FR 48857). In its 
redesignation requests, Ohio notes that in 2008 and 2009 facilities 
began preparing for and implementing control programs to address CAIR 
and consent decrees. Thus, it is likely that some of the emissions 
reductions that lead to monitored attainment of the 1997 annual and 
2006 24-hour PM2.5 standards in the Cleveland area were due 
to sources beginning to comply with CAIR requirements. The quality-
assured, certified monitoring data used to demonstrate the area's 
attainment of the 1997 annual and 2006 24-hour PM2.5 NAAQS 
by the attainment deadline was also impacted by CAIR.
    To the extent that Ohio is relying on CAIR in its maintenance plan, 
the directive from the D.C. Circuit 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 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, 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 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 
contributions to downwind nonattainment and prevent interference with 
maintenance in downwind areas.
    Further, in vacating CSAPR and requiring EPA to continue 
administering CAIR, the D.C. Circuit emphasized that the consequences 
of vacating CAIR ``might be more severe now in light of the reliance 
interests accumulated over the intervening four years.'' EME Homer 
City, 696 F.3d at 38. The accumulated reliance interests include the 
interests of states who reasonably assumed they could rely on 
reductions associated with CAIR which brought certain nonattainment 
areas into attainment with the NAAQS. If EPA were prevented from 
relying on reductions associated with CAIR in redesignation actions, 
states would be forced to impose additional, redundant reductions on 
top of those achieved by CAIR. EPA believes this is precisely the type 
of irrational result the court sought to avoid by ordering EPA to 
continue administering CAIR. For these reasons also, EPA believes it is 
appropriate to allow states to rely on CAIR, and the existing emissions 
reductions achieved by CAIR, as sufficiently permanent and enforceable 
for purposes such as redesignation. Following promulgation of the 
replacement rule, EPA will review SIPs as appropriate to identify 
whether there are any issues that need to be addressed.
b. Emission Reductions
    Ohio developed annual emissions inventories for NOX, 
primary PM2.5, and SO2 for 2005, one of the years 
the Cleveland area monitored nonattainment of the 1997 annual and 2006 
24-hour PM2.5 standards, and 2008, one of the years the area 
monitored attainment of the standards.
    The emission inventories submitted by Ohio EPA were developed with 
the assistance of the Lake Michigan Air Directors Consortium (LADCO). 
The main purpose of LADCO is to provide technical assessments for and 
assistance to its member states on problems of air quality. LADCO's 
primary geographic focus is the area encompassed by its member states 
(Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin) and any 
areas which affect air quality in its member states.
    The 2005 nonattainment inventory was developed as described below. 
Point source emissions for 2005 were compiled by Ohio EPA using source 
specific data reported by facilities through the state's STARShip 
database program. The data are reported by facilities annually and 
include emissions, process rates, operating schedules, emissions 
control data and other relevant information. Ohio EPA quality assured 
the database files and submitted the data to LADCO for emissions 
processing through the Emissions Modeling System (EMS). LADCO used the 
Electric Generating Unit (EGU) inventory compiled by EPA's Acid Rain 
Program, based on facility reported emissions as measured by continuous 
emissions monitors.
    Area source sector emissions were calculated using surrogate 
emissions factors based on energy usage, population, employment 
records, or other reliable data. Ohio EPA used Emission Inventory 
improvement Program methodologies or selected other methodologies which 
are shared by other states. The decision of which methodology to use 
was largely based on Ohio's data availability.
    Nonroad source sector emissions estimates were generated using 
EPA's National Mobile Inventory Model (NMIM), with the following 
modifications: Emission factors were added for diesel tampers/rammers; 
the PM2.5 ratios in the SCC table were revised to correctly 
calculate PM2.5 diesel emissions; and, gasoline parameters, 
including Reid Vapor Pressure (RVP), Oxygenate content and sulfur 
content, were revised using updates provided by the state and E.H.

[[Page 45129]]

Pechan and Associates. Marine, aircraft and rail nonroad emissions were 
calculated separately. Contractors were employed by LADCO to estimate 
emissions for commercial marine vessels and railroads. Ohio developed 
aircraft emissions estimates using AP-42 emission factors and landing 
and take-off data provided by the Federal Aviation Administration.
    Onroad mobile source emissions estimates were developed using the 
EPA's MOVES2010 model.
    The 2008 attainment year inventory was developed as follows. Point 
source emissions for 2008 were compiled from Ohio's STARShip database. 
Onroad emissions projections were based on EPA's MOVES2010 model. Area 
and nonroad emissions were grown from the 2005 inventory using LADCO's 
growth factors.
    NOX, primary PM2.5, and SO2 
emissions data are shown in Table 5 below.

                Table 5--Comparison of 2005 and 2008 NOX, Primary PM2.5, and SO2 Emission Totals by Source Sector in Tons per Year (tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     2005                             2008                     Net change 2005-2008
                        Sector                        --------------------------------------------------------------------------------------------------
                                                         PM2.5       NOX        SO2       PM2.5       NOX        SO2       PM2.5       NOX        SO2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point................................................      1,916     29,699    147,256      2,003     29,280    111,991         87       -419    -35,265
Area.................................................      2,380     10,419        954      2,433     10,527        945         53        108         -9
Nonroad..............................................      1,888     29,286      3,154      1,656     26,148      1,828       -233     -3,138     -1,326
Onroad...............................................      3,022     86,522      1,854      2,556     69,731        556       -466    -16,791     -1,299
                                                      --------------------------------------------------------------------------------------------------
    Total............................................      9,206    155,927    153,218      8,648    135,687    115,319       -558    -20,240    -37,899
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 5 shows that the Cleveland area reduced primary 
PM2.5, NOX, and SO2 emissions by 558 
tpy, 20,240 tpy, and 37,899 tpy, respectively, between 2005 and 2008. 
Based on the information summarized above, Ohio has adequately 
demonstrated that the improvement in air quality is due to permanent 
and enforceable emissions reductions.
    On April 30, 2013, Ohio submitted supplemental information 
regarding emissions of VOC and ammonia. This information is reviewed 
below. However, EPA believes that the improvement in air quality is 
attributable to the PM2.5, NOX, and 
SO2 emission reductions described above and is not 
significantly affected by any changes in VOC or ammonia emissions.
4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section 
175A of the CAA (Section 107(d)(3)(E)(iv))
    In conjunction with Ohio's requests to redesignate the Cleveland 
nonattainment area to attainment status, Ohio EPA submitted SIP 
revisions to provide for maintenance of the 1997 annual and 2006 24-
hour PM2.5 NAAQS in the area through 2022.
a. What is required in a maintenance plan?
    Section 175A of the CAA sets forth the required elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. Under section 175A, the plan must demonstrate continued 
attainment of the applicable NAAQS for at least ten years after EPA 
approves a redesignation to attainment. Eight years after 
redesignation, the state must submit a revised maintenance plan which 
demonstrates that attainment will continue to be maintained for ten 
years following the initial ten year maintenance period. To address the 
possibility of future NAAQS violations, the maintenance plan must 
contain contingency measures with a schedule for implementation as EPA 
deems necessary to assure prompt correction of any future 
PM2.5 violations.
    The September 4, 1992, John Calcagni memorandum provides additional 
guidance on the content of a maintenance plan. The memorandum states 
that a maintenance plan should address the following items: The 
attainment emissions inventories, a maintenance demonstration showing 
maintenance for the ten years of the maintenance period, a commitment 
to maintain the existing monitoring network, factors and procedures to 
be used for verification of continued attainment of the NAAQS, and a 
contingency plan to prevent or correct future violations of the NAAQS.
b. Attainment Inventory
    The Ohio EPA developed annual emissions inventories for 
NOX, direct PM2.5, and SO2 for 2008, 
one of the years the area monitored attainment of the 1997 annual and 
2006 24-hour PM2.5 standard, as described in section 
IV.A.3.b. The use of an annual inventory is appropriate for both the 
annual and 24-hour standard because 24-hour exceedances occur in all 
four quarters. The attainment level of emissions is summarized in Table 
5, above.
c. Demonstration of Maintenance
    Along with the redesignation requests, Ohio EPA submitted revisions 
to the Ohio PM2.5 SIP to include maintenance plans for the 
Cleveland area, as required by section 175A of the CAA. Section 175A 
requires a state seeking redesignation to attainment to submit a SIP 
revision to provide for the maintenance of the NAAQS in the area ``for 
at least 10 years after the redesignation.'' EPA has interpreted this 
as a showing of maintenance ``for a period of ten years following 
redesignation.'' Calcagni Memorandum, p. 9. Where the emissions 
inventory method of showing maintenance is used, its purpose is to show 
that emissions during the maintenance period will not increase over the 
attainment year inventory. Calcagni Memorandum, pp. 9-10.
    As discussed in detail in the section below, Ohio's maintenance 
plan submissions expressly document that the area's emissions 
inventories will remain below the attainment year inventories through 
2022. In addition, for the reasons set forth below, EPA believes that 
the state's submissions, in conjunction with additional supporting 
information, further demonstrate that the area will continue to 
maintain the PM2.5 standard at least through 2023. Thus, if 
EPA finalizes its proposed approval of the redesignation requests and 
maintenance plans in 2013, it is based on a showing, in accordance with 
section 175A, that the state's maintenance plans provide for 
maintenance for at least ten years after redesignation.
    Ohio's plans demonstrate maintenance of the 1997 annual and 2006 
24-hour PM2.5 NAAQS through 2022 by showing that current and 
future emissions of NOX, directly emitted PM2.5 
and SO2 for the area remain at or below attainment year 
emission levels.

[[Page 45130]]

A maintenance demonstration need not be based on modeling. See Wall v. 
EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F.3d 537 
(7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 
68 FR 25413, 25430-25432 (May 12, 2003). As discussed below, a 
comparison of current and future emissions inventories for VOC and 
ammonia show significant reductions in VOC emissions and relatively 
constant emissions of ammonia, which further support a finding that the 
area will continue to maintain the standard.
    For NOX, directly emitted PM2.5, and 
SO2, Ohio is using emissions inventory projections for the 
years 2015 and 2022 to demonstrate maintenance. The projected emissions 
were estimated by Ohio EPA, with assistance from LADCO, The Ohio 
Department of Transportation (ODOT) and the Northeast Ohio Areawide 
Coordinating Agency (NOACA).
    LADCO has developed growth and control files for point, area and 
nonroad categories. These files were used along with LADCO's 2009 and 
2018 emission inventories to develop the 2015 and 2022 emissions 
estimates. NOACA and ODOT developed onroad emissions projections using 
the MOVES model.
    As discussed in section IV.3.a. above, many of the control programs 
that helped to bring the area into attainment of the standard will 
continue to achieve additional emission reductions over the maintenance 
period. These control programs include Tier 2 emission standards for 
vehicles and gasoline sulfur standards, the heavy-duty diesel engine 
rule, the nonroad diesel rule, and the nonroad large spark-ignition 
engine and recreation engine standards. In addition, implementation of 
CAIR was assumed in the projections. Emissions data for all sources by 
source sector are shown in Tables 6 through 8, below.

  Table 6--Comparison of 2008, 2015, and 2022 NOX Emission Totals by Source Sector (tpy) for the Cleveland Area
----------------------------------------------------------------------------------------------------------------
                                                                    Net change                      Net change
             Sector                    2008            2015          2008-2015         2022          2008-2022
----------------------------------------------------------------------------------------------------------------
Point...........................          29,280          26,285          -2,995          24,921          -4,359
Area............................          10,527          10,612              84          10,705             178
Nonroad.........................          26,148          17,479          -8,669           9,156         -16,992
Onroad..........................          69,731          30,517         -39,214          15,012         -54,719
                                 -------------------------------------------------------------------------------
    Total.......................         135,687          84,892         -50,795          59,794         -75,893
----------------------------------------------------------------------------------------------------------------


     Table 7--Comparison of 2008, 2015, and 2022 Direct PM2.5 Emission Totals by Source Sector (tpy) for the
                                                 Cleveland Area
----------------------------------------------------------------------------------------------------------------
                                                                    Net change                      Net change
                                       2008            2015          2008-2015         2022          2008-2022
----------------------------------------------------------------------------------------------------------------
Point...........................           2,003           2,111             108           2,242             239
Area............................           2,433           2,421             -12           2,417             -16
Nonroad.........................           1,656           1,187            -469             711            -944
Onroad..........................           2,556           1,192          -1,364             766          -1,790
                                 -------------------------------------------------------------------------------
    Total.......................           8,648           6,911          -1,737           6,136          -2,512
----------------------------------------------------------------------------------------------------------------


  Table 8--Comparison of 2008, 2015, and 2022 SO2 Emission Totals by Source Sector (tpy) for the Cleveland Area
----------------------------------------------------------------------------------------------------------------
                                                                    Net change                      Net change
             Sector                    2008            2015          2008-2015         2022          2008-2022
----------------------------------------------------------------------------------------------------------------
Point...........................         111,991          85,877         -26,114          57,024         -54,967
Area............................             945             916             -28             888             -56
Nonroad.........................           1,828             887            -940             409          -1,419
Onroad..........................             556             185            -371             164            -392
                                 -------------------------------------------------------------------------------
    Total.......................         115,319          87,866         -27,453          58,486         -56,834
----------------------------------------------------------------------------------------------------------------

    Tables 6-8 show that emissions of NOX, direct 
PM2.5, and SO2 are projected to decrease by 
50,795 tpy, 1,737 tpy, and 27,453 tpy, respectively, between 2008 and 
2015. In addition, Tables 6-8 show that emissions of NOX, 
direct PM2.5, and SO2 are projected to decrease 
by 75,893 tpy, 2,512 tpy, and 56,834 tpy, respectively, between 2008 
and 2022.
    The rate of decline in emissions of PM2.5, 
NOX, and SO2 from the attainment year 2008 
through 2022 indicates that emissions inventory levels not only 
significantly decline between 2008 and 2022, but that the reductions 
will continue in 2023 and beyond. The average annual rate of decline is 
7,256 tpy for NOX, 179 tpy for direct PM2.5, and 
4,060 tpy for SO2. These rates of decline are consistent 
with monitored and projected air quality trends, emissions reductions 
achieved through emissions controls and regulations that will remain in 
place beyond 2023. Furthermore, fleet turnover in onroad and nonroad 
vehicles that will continue to occur after 2022 will continue to 
provide additional significant emission reductions.
    In addition, as Tables 2 and 4 demonstrate, monitored 
PM2.5 design value concentrations in the Cleveland area are 
well below the NAAQS in the years beyond 2008, an attainment year for 
the area. Further, those values are

[[Page 45131]]

trending downward as time progresses. Based on the future projections 
of emissions in 2015 and 2022 showing significant emissions reductions 
in direct PM2.5, NOX, and SO2, it is 
very unlikely that monitored PM2.5 values in 2023 and beyond 
will show violations of the NAAQS. Additionally, the 2010-2012 design 
values of 13.0 and 30 [mu]g/m\3\ (for the annual and the 24-hour 
standards, respectively) provide a sufficient margin in the unlikely 
event emissions rise slightly in the future.
    Based on the information summarized above, Ohio has adequately 
demonstrated maintenance of the PM2.5 standard for a period 
extending ten years from the date that EPA may be expected to complete 
rulemaking on the state's redesignation request.
d. Maintenance Plan and Evaluation of Precursors
    After evaluating the effect of the Court's remand of EPA's 
implementation rule, a rule that included presumptions against 
consideration of VOC and ammonia as PM2.5 precursors, EPA in 
this proposal is also considering the impact of the decision on the 
maintenance plans required under sections 175A and 107(d)(3)(E)(iv). To 
begin with, EPA notes that the area has attained the 1997 annual and 
2006 24-hour PM2.5 standards and that the state has shown 
that attainment of that standard is due to permanent and enforceable 
emission reductions.
    Based on its review of Ohio's maintenance plan and related 
information, EPA believes that the primary influences on future air 
quality in the Cleveland area will be emissions of NOX, 
directly emitted PM2.5, and SO2. EPA therefore 
proposes to determine that the state's maintenance plans show continued 
maintenance of the standards by tracking the levels of the pollutants 
whose control brought about attainment of the PM2.5 
standards in the Cleveland area. Nevertheless, pursuant to the Court's 
January 4, 2013, decision, EPA is further assessing the potential role 
of VOC and ammonia in achieving continued maintenance in this area. As 
explained below, based upon documentation provided by the state and 
supporting information, EPA believes that the prospective trends in 
emissions of VOC and ammonia are consistent with a finding of continued 
maintenance of the standards in the Cleveland area.
    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 ammonia emissions throughout the Cleveland area are relatively 
low, estimated to be less than 13,200 tons per year. See Table 9 below. 
This amount of ammonia emissions is 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, NOX, SO2, direct 
PM2.5 and VOC emissions are expected to decrease over the 
maintenance period, and ammonia emissions are projected to increase 
only slightly. Thus, future emissions levels are not expected to 
interfere with or undermine the state's maintenance demonstrations.
    Ohio's maintenance plans show that emissions of NOX, 
direct PM2.5, and SO2 are projected to decrease 
by 75,893 tpy, 2,512 tpy, and 56,834 tpy, respectively, over the 
maintenance period. See Tables 6-8 above. 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 32,376 tpy, with ammonia emissions increasing by only 93 
tpy. While the RIA emissions inventories are only projected out to 
2020, there is no reason to believe that these trends would not 
continue through 2023.
    Given that the Cleveland area is already attaining the 1997 annual 
and 2006 24-hour PM2.5 NAAQS, even with the current level of 
emissions from sources in the area, the overall downward trend in 
emissions would be consistent with continued attainment. Indeed, 
projected emissions reductions for the precursors that the state is 
addressing for purposes of the 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 
VOC and ammonia emissions were to increase unexpectedly between 2020 
and 2025, 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 annual or 2006 
24-hour PM2.5 standards during the maintenance period.

                 Table 9--Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Cleveland Area \12\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                VOC                                           Ammonia
                                                         -----------------------------------------------------------------------------------------------
                         Sector                                                             Net change                                      Net change
                                                               2007            2020          2007-2020         2007            2020          2007-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...................................................           7,205           7,122             -83              31             165             134
Area....................................................          35,944          36,222             278          11,803          12,336             533
Nonroad.................................................          28,017          13,362         -14,655              23              25               3
Onroad..................................................          29,558          11,642         -17,917           1,234             657            -576
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................         100,724          68,348         -32,376          13,090          13,184              93
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In addition,  available air quality modeling analyses show 
continued maintenance of the 1997 annual standard during the 
maintenance period. Based on 2010-2012 air quality data, the current 
design values for the area is 13.0 [mu]g/m\3\, which is well below the 
1997 annual PM2.5 NAAQS of 15 [mu]g/m\3\. Moreover, the 
modeling analysis conducted for the RIA for the 2012 PM2.5 
NAAQS indicates that the annual design value for this area is expected 
to continue to decline through 2020. In the RIA analysis, the 2020 
modeled annual design value for the Cleveland area is 10.7 [mu]g/m\3\. 
Given that overall precursor emissions are projected to decrease 
through 2022, it is reasonable to conclude that monitored 
PM2.5 levels in this area will also continue to decrease 
through the maintenance period.
---------------------------------------------------------------------------

    \12\ These emissions estimates were taken from the emissions 
inventories developed for the RIA for the 2012 PM2.5 
NAAQS.
---------------------------------------------------------------------------

    Thus, EPA believes that there is ample justification to conclude 
that the Cleveland area maintenance plans

[[Page 45132]]

should be approved, even taking into consideration the emissions of 
other precursors potentially relevant to PM2.5. After 
consideration of the D.C. Circuit's January 4, 2013, decision, and for 
the reasons set forth in this notice, EPA proposes to approve the 
state's maintenance plans.
e. Monitoring Network
    Ohio currently operates twelve monitors for purposes of determining 
attainment with the 1997 annual and 2006 24-hour PM2.5 
standard in the Cleveland area. Ohio EPA has committed to continue to 
operate and maintain these monitors and will consult with EPA prior to 
making any changes to the existing monitoring network. Ohio EPA remains 
obligated to continue to quality assure monitoring data in accordance 
with 40 CFR part 58 and enter all data into the AQS in accordance with 
Federal guidelines.
f. Verification of Continued Attainment
    Continued attainment of the PM2.5 NAAQS in the Cleveland 
area depends, in part, on the state's efforts toward tracking 
indicators of continued attainment during the maintenance period. 
Ohio's plans for verifying continued attainment of the 1997 annual and 
24-hour PM2.5 standards in the Cleveland area consists of 
continued ambient PM2.5 monitoring in accordance with the 
requirements of 40 CFR part 58. Ohio EPA will also continue to develop 
and submit periodic emission inventories as required by the Federal 
Consolidated Emissions Reporting Rule (codified at 40 CFR part 51 
Subpart A) to track future levels of emissions.
g. Contingency Plan
    The contingency plan provisions are designed to promptly correct or 
prevent a violation of the NAAQS that might occur after redesignation 
of an area to attainment. Section 175A of the CAA requires that a 
maintenance plan include such contingency measures as EPA deems 
necessary to ensure that the state will promptly correct a violation of 
the NAAQS that occurs after redesignation. The maintenance plan should 
identify the contingency measures to be adopted, a schedule and 
procedure for adoption and implementation of the contingency measures, 
and a time limit for action by the state. The state should also 
identify specific indicators to be used to determine when the 
contingency measures need to be adopted and implemented. The 
maintenance plan must include a requirement that the state will 
implement all measures with respect to control of the pollutant(s) that 
were contained in the SIP before redesignation of the area to 
attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Ohio has adopted 
contingency plans for the Cleveland area to address possible future 
1997 annual and 2006 24-hour PM2.5 air quality problems. 
Ohio's contingency plans include Warning Level Responses and Action 
Level Responses. An initial Warning Level Response is triggered when 
either 1) the weighted annual mean is equal to or greater than 15.5 
[mu]g/m\3\ within the maintenance area in a single calendar year or 2) 
a 98th percentile 24-hour PM2.5 concentration of 35.5 [mu]g/
m\3\ or greater occurs within a single year in the maintenance area. If 
a Warning Level Response is triggered, a study will be conducted to 
determine whether emissions appear to be increasing; whether the trend, 
if any, is likely to continue; and, if so what control measures are 
necessary to reverse the trend. Should it be determined through the 
warning level study that action is necessary to reverse the noted 
trend, Ohio will follow the same procedures for control selection and 
implementation as for an Action Level Response.
    An Action Level Response will be prompted by any one of the 
following: A two year average of the weighted annual means of 15.0 
[mu]g/m\3\ or greater; a violation of the 1997 annual PM2.5 
standard; a two year average of the 98th percentile 24-hour 
PM2.5 concentration of 35.0 [mu]g/m\3\ or greater; or, a 
violation of the 24-hour PM2.5 standard. If an Action Level 
Response is triggered, Ohio EPA will determine what additional control 
measures are needed to assure future attainment of the PM2.5 
standards. Selected measures are to be in place within 18 months from 
the close of the calendar year that prompted the action level. Ohio EPA 
will determine if significant new regulations not currently included as 
part of the maintenance provisions will be implemented in a timely 
manner so as to constitute the state's response. If such a 
determination is made, Ohio will submit to EPA an analysis to 
demonstrate the proposed measures are adequate to return the area to 
attainment. Ohio EPA included the following list of potential 
contingency measures:

    i. Diesel reduction emission strategies;
    ii. Alternative fuel (e.g., liquid propane and compressed 
natural gas) and diesel retrofit programs for fleet vehicle 
operations;
    iii. Tighter NOX, SO2, or PM2.5 
emissions offsets for new and modified major sources;
    iv. Impact crushers located at recycle scrap yards--upgrade wet 
suppression;
    v. Concrete manufacturing--upgrade wet suppression; and,
    vi. Additional NOX RACT statewide.

    EPA believes that Ohio's contingency plan satisfies the pertinent 
requirements of section 175A(d).
h. Provisions for Future Updates of the Annual PM2.5 
Maintenance Plan
    As required by section 175A(b) of the CAA, Ohio commits to submit 
to EPA updated maintenance plans eight years after redesignation of the 
Cleveland area to attainment of the 1997 annual and 2006 24-hour 
PM2.5 standards to cover an additional ten-year period 
beyond the initial ten year maintenance period. As required by section 
175A of the CAA, Ohio has committed to retain the control measures 
contained in the SIP prior to redesignation, and to submit to EPA for 
approval as a SIP revision, any changes to its rules or emission limits 
applicable to SO2, NOX, or direct 
PM2.5 sources as required for maintenance of the 1997 annual 
and 2006 24-hour PM2.5 standard in the Cleveland area.
    EPA has concluded that the maintenance plan adequately addresses 
the five basic components of a maintenance plan: Attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and a contingency plan.

B. Comprehensive Emissions Inventories

    As discussed above in section IV.A.2.a.ii., section 173(c)(3) of 
the CAA requires areas to submit a comprehensive, accurate and current 
emissions inventory. As part of the redesignation request, Ohio 
submitted 2005 and 2008 emissions inventories for NOX, 
primary PM2.5, and SO2. These emissions 
inventories are discussed in section IV.A.3.b., above, and the data are 
shown in Table 5.
    On April 30, 2013, Ohio submitted 2007/2008 ammonia and VOC 
emissions inventories to supplement the comprehensive emissions 
inventories submitted as part of the redesignation requests. These 
emissions inventories were developed by LADCO, in conjunction with its 
member states, as described below.
    To generate point source emissions estimates, LADCO ran the EMS 
model using STARShip data provided by Ohio. For area sources, LADCO ran 
the EMS model using the 2008 National Emissions Inventory (NEI) data 
provided by Ohio. LADCO followed Eastern Regional Technical Advisory 
Committee (ERTAC) recommendations on area sources when preparing the 
data. Agricultural ammonia emissions were not taken from NEI; instead

[[Page 45133]]

emissions were based on Carnegie Mellon University's Ammonia Emission 
Inventory for the Continental United States (CMU). Specifically, the 
CMU 2002 annual emissions were grown to reflect 2007 conditions. A 
process-based ammonia emissions model developed for LADCO was then used 
to develop temporal factors to reflect the impact of average 
meteorology on livestock emissions.
    Onroad mobile source emissions were generated using EPA's 
MOVES2010a emissions model. Nonroad mobile source emissions were 
generated using the NMIM2008 emissions model. LADCO also accounted for 
three other nonroad categories not covered by the NMIM model: 
Commercial marine vessels, aircraft, and railroads. Marine emissions 
were based on reports prepared by Environ entitled ``LADCO Nonroad 
Emissions Inventory Project for Locomotive, Commercial Marine, and 
Recreational Marine Emission Sources, Final Report, December 2004'' and 
``LADCO 2005 Commercial Marine Emissions, Draft, March 2, 2007.'' 
Aircraft emissions were provided by Ohio and calculated using AP-42 
emission factors and landing and take-off data provided by the Federal 
Aviation Administration. Rail emissions were based on the 2008 
inventory developed by ERTAC.
    EPA notes that the emissions inventory developed by LADCO is 
documented in ``Regional Air Quality Analyses for Ozone, 
PM2.5, and Regional Haze: Base C Emissions Inventory'' 
(September 12, 2011). Ammonia and VOC emissions data are shown in Table 
10 below.

  Table 10--2007/2008 VOC and Ammonia Emission Totals for the Cleveland
                          Area by Source Sector
                                  [tpy]
------------------------------------------------------------------------
                      Sector                         Ammonia      VOC
------------------------------------------------------------------------
Point.............................................         65      6,627
Area..............................................     13,329     36,530
Nonroad...........................................         23     27,721
Onroad............................................      1,384     29,285
                                                   ---------------------
    Total.........................................     14,801    100,163
------------------------------------------------------------------------

    EPA has concluded that the emissions inventories provided by the 
state are complete and as accurate as possible given the input data 
available for the relevant source categories. EPA also believes that 
these inventories provide information about VOC and ammonia as 
PM2.5 precursors in the context of evaluating redesignation 
of the Cleveland area under subpart 4. Therefore, we are proposing to 
approve the 2007/2008 ammonia and VOC emissions inventories submitted 
by the state, in conjunction with the 2005 and 2008 NOX, 
direct PM2.5, and SO2 emissions inventories, as 
fully meeting the comprehensive inventory requirement of section 
172(c)(3) of the CAA for the Cleveland area for the 1997 annual and 
2006 24-hour PM2.5 standards.

C. Ohio's MVEBs

1. How are MVEBs developed?
    Under the CAA, states are required to submit, at various times, 
control strategy SIP revisions and maintenance plans for 
PM2.5 nonattainment areas and for areas seeking 
redesignations to attainment of the PM2.5 standard. These 
emission control strategy SIP revisions (e.g., RFP and attainment 
demonstration SIP revisions) and maintenance plans create MVEBs based 
on onroad mobile source emissions for criteria pollutants and/or their 
precursors to address pollution from onroad transportation sources. The 
MVEBs are the portions of the total allowable emissions that are 
allocated to highway and transit vehicle use that, together with 
emissions from other sources in the area, will provide for attainment, 
RFP or maintenance, as applicable.
    Under 40 CFR part 93, a MVEB for an area seeking a redesignation to 
attainment is established for the last year of the maintenance plan. 
The MVEB serves as a ceiling on emissions from an area's planned 
transportation system. The MVEB concept is further explained in the 
preamble to the November 24, 1993, transportation conformity rule (58 
FR 62188).
    Under section 176(c) of the CAA, transportation plans and 
transportation improvement programs (TIPs) must be evaluated to 
determine if they conform with the area's SIP. Conformity to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing air quality violations, or delay timely 
attainment of the NAAQS or any required interim milestone. If a 
transportation plan or TIP does not conform, most new transportation 
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 assuring conformity of such 
transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment 
strategies, rate-of-progress plans, and maintenance plans, EPA must 
affirmatively find ``adequate'' or approve for use in determining 
transportation conformity before the MVEBs can be used. Once EPA 
affirmatively approves or finds the submitted MVEBs to be adequate for 
transportation conformity purposes, the MVEBs must be used by state and 
Federal agencies in determining whether transportation plans and TIPs 
conform to the SIP as required by section 176(c) of the CAA. EPA's 
substantive criteria for determining the adequacy of MVEBs are set out 
in 40 CFR 93.118(e)(4). Additionally, to approve a motor vehicle 
emissions budget EPA must complete a thorough review of the SIP, in 
this case the PM2.5 maintenance plan, and conclude that the 
SIP will achieve its overall purpose, in this case providing for 
maintenance of the 1997 annual PM2.5 standard.
    EPA's process for determining adequacy of a MVEB consists of three 
basic steps: (1) Providing public notification of a SIP submission; (2) 
providing the public the opportunity to comment on the MVEB during a 
public comment period; and, (3) EPA taking action on the MVEB. The 
process for determining the adequacy of submitted SIP MVEBs is codified 
at 40 CFR 93.118.
2. What is a safety margin?
    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. As shown in Table 6, 
NOX emissions in the Cleveland area are projected to have 
safety margins of 50,795 tpy and 75,893 tpy in 2015 and 2022, 
respectively (the difference between the attainment year, 2008, 
emissions and the projected 2015 and 2022 emissions for all sources in 
the Cleveland area). Table 7 shows direct PM2.5 emissions in 
the Cleveland area are projected to have safety margins of 1,737 tpy 
and 2,512 tpy in 2015 and 2022, respectively. Even if emissions reached 
the full level of the safety margin, the area would still demonstrate 
maintenance since emission levels would equal those in the attainment 
year.
    The transportation conformity rule allows areas to allocate all or 
a portion of a ``safety margin'' to the area's motor vehicle emissions 
budgets. (40 CFR 93.124(a))
3. What are the MVEBs for the Cleveland area?
    The maintenance plans submitted by Ohio for the Cleveland area 
contain primary PM2.5 and NOX MVEBs for the area 
for the years 2015 and 2022. Ohio EPA has determined the 2015 MVEBs for 
the Cleveland area to be 1,371.35 tpy

[[Page 45134]]

for primary PM2.5 and 35,094.70 tpy for NOX. Ohio 
EPA has determined the 2022 MVEBs for the Cleveland area to be 880.89 
tpy for primary PM2.5 and 17,263.65 tpy for NOX. 
Ohio EPA allocated 178.87 tpy and 4,477.57 tpy to the 2015 primary 
PM2.5 and NOX MVEBs, respectively, to provide for 
mobile source growth. Similarly, Ohio EPA allocated 114.90 tpy and 
2,251.78 tpy to the 2022 primary PM2.5 and NOX 
MVEBs, respectively.
    The transportation conformity rule allows areas to allocate all or 
a portion of a ``safety margin'' to the area's motor vehicle emissions 
budgets. (40 CFR 93.124(a)) The state is not requesting allocation to 
the MVEBs of the entire available safety margins reflected in the 
demonstration of maintenance. Therefore, even though the state has 
submitted MVEBs that exceed the projected onroad mobile source 
emissions for 2015 and 2022 contained in the demonstration of 
maintenance, the increase in onroad mobile source emissions that can be 
considered for transportation conformity purposes is well within the 
safety margins of the PM2.5 maintenance demonstration. 
Further, once allocated to mobile sources, these safety margins will 
not be available for use by other sources.
    Ohio did not provide emission budgets for SO2, VOCs, and 
ammonia because it concluded, consistent with the presumptions 
regarding these precursors in the conformity rule at 40 CFR 
93.102(b)(2)(v), which predated and was not disturbed by the litigation 
on the PM2.5 implementation rule, that emissions of these 
precursors from motor vehicles are not significant contributors to the 
area's PM2.5 air quality problem.
    EPA issued conformity regulations to implement the 1997 
PM2.5 NAAQS in July 2004 and May 2005 (69 FR 40004, July 1, 
2004 and 70 FR 24280, May 6, 2005, respectively). Those actions were 
not part of the final rule recently remanded to EPA by the Court of 
Appeals for the District of Columbia in NRDC v. EPA, No. 08-1250 (Jan. 
4, 2013), in which the Court remanded to EPA the implementation rule 
for the PM2.5 NAAQS because it concluded that EPA must 
implement that NAAQS pursuant to the PM-specific implementation 
provisions of subpart 4 of part D of title I of the CAA, rather than 
solely under the general provisions of subpart 1. That decision does 
not affect EPA's proposed approval of the Cleveland area MVEBs.
    First, as noted above, EPA's conformity rule implementing the 1997 
PM2.5 NAAQS was a separate action from the overall 
PM2.5 implementation rule addressed by the Court and was not 
considered or disturbed by the decision. Therefore, the conformity 
regulations were not at issue in NRDC v. EPA.\13\ In addition, as 
discussed in section III.B., the Cleveland area is attaining the 1997 
annual and 2006 24-hour standards for PM2.5 with 2010-2012 
design values of 13.0 [mu]g/m\3\ and 30 [mu]g/m\3\, respectively, which 
are well below the 1997 annual PM2.5 NAAQS of 15 [mu]g/m\3\ 
and the 2006 24-hour PM2.5 NAAQS of 35 [mu]g/m\3\. The 
modeling analysis conducted for the RIA for the 2012 PM NAAQS indicates 
that the design value for this area is expected to continue to decline 
through 2020. Further, the state's maintenance plan shows continued 
maintenance through 2022 by demonstrating that NOX, 
SO2, and direct PM2.5 emissions continue to 
decrease through the maintenance period. For VOC and ammonia, RIA 
inventories for 2007 and 2020 show that both onroad and total emissions 
for these pollutants are expected to decrease, supporting the state's 
conclusion, consistent with the presumptions regarding these precursors 
in the conformity rule, that emissions of these precursors from motor 
vehicles are not significant contributors to the area's 
PM2.5 air quality problem and the MVEBs for these precursors 
are unnecessary. With regard to SO2, the 2005 final 
conformity rule (70 FR 24280) based its presumption concerning onroad 
SO2 motor vehicle emissions budgets on emissions inventories 
that show that SO2 emissions from onroad sources constitute 
a ``de minimis'' portion of total SO2 emissions. As can be 
seen from the data presented in Table 8, onroad emissions in 2022 are 
less than 0.3% of total SO2 emissions in the area. In 
addition, onroad SO2 emissions decrease throughout the 
maintenance period.
---------------------------------------------------------------------------

    \13\ The 2004 rulemaking addressed most of the transportation 
conformity requirements that apply in PM2.5 nonattainment 
and maintenance areas. The 2005 conformity rule included provisions 
addressing treatment of PM2.5 precursors in MVEBs. See 40 
CFR 93.102(b)(2). While none of these provisions were challenged in 
the NRDC case, EPA also notes that the Court declined to address 
challenges to EPA's presumptions regarding PM2.5 
precursors in the PM2.5 implementation rule. NRDC v. EPA, 
at 27, n. 10.
---------------------------------------------------------------------------

    The availability of the SIP submissions with these 2015 and 2022 
MVEBs was announced for public comment on EPA's Adequacy Web site on 
October 6, 2011, for the 1997 annual PM2.5 standard and 
August 9, 2012, for the 2006 24-hour PM2.5 standard, at: 
http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA 
public comment periods on adequacy of the 2015 and 2022 MVEBs for the 
Cleveland area closed on November 7, 2011, and September 10, 2012, for 
the 1997 annual and 2006 24-hour PM2.5 standards, 
respectively. No adverse comments on the submittals were received 
during the adequacy comment period.
    EPA has reviewed the submitted budgets for 2015 and 2022, including 
the added safety margins using the conformity rule's adequacy criteria 
found at 40 CFR 93.118(e)(4) and the conformity rule's requirements for 
safety margins found at 40 CFR 93.124(a). EPA has determined that the 
area can maintain attainment of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS for the relevant maintenance period with onroad 
mobile source emissions at the levels of the MVEBs since total 
emissions will still remain under attainment year emission levels. EPA 
is therefore finding adequate and proposing to approve the MVEBs 
submitted by Ohio EPA for use in determining transportation conformity 
in the Cleveland area.

V. Summary of Proposed Actions

    EPA is proposing to determine that the Cleveland area is attaining 
the 1997 annual and 2006 24-hour PM2.5 standards and that 
the area has met the requirements for redesignation under section 
107(d)(3)(E) of the CAA. EPA is thus proposing to approve the requests 
from Ohio EPA to change the legal designations of the Cleveland area 
from nonattainment to attainment for the 1997 annual and 2006 24-hour 
PM2.5 standards. EPA is proposing to approve Ohio's 
PM2.5 maintenance plans for the Cleveland area as revisions 
to the Ohio SIP because the plans meet the requirements of section 175A 
of the CAA. EPA is proposing to approve 2005 and 2008 emissions 
inventories for primary PM2.5, NOX, and 
SO2, and 2007/2008 emissions inventories for VOC and ammonia 
as satisfying the requirement in section 172(c)(3) of the CAA for a 
comprehensive, current emission inventory. Finally, EPA finds adequate 
and is proposing to approve 2015 and 2022 primary PM2.5 and 
NOX MVEBs for the Cleveland area. These MVEBs will be used 
in future transportation conformity analyses for the area.

VI. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of a maintenance plan under section 107(d)(3)(E) 
are actions that affect the status of a geographical area and do not 
impose any additional regulatory requirements on sources beyond those

[[Page 45135]]

imposed by state law. A redesignation to attainment does not in and of 
itself create any new requirements, but rather results in the 
applicability of requirements contained in the CAA for areas that have 
been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, these proposed actions do not impose additional 
requirements beyond those imposed by state law and the CAA. For that 
reason, these proposed actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     are 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.);
     do 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);
     do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     are 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
     do 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 does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because a determination of attainment is an action that affects the 
status of a geographical area and does not impose any new regulatory 
requirements on tribes, impact any existing sources of air pollution on 
tribal lands, nor impair the maintenance of ozone national ambient air 
quality standards in tribal lands.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: July 12, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013-18028 Filed 7-25-13; 8:45 am]
BILLING CODE 6560-50-P