[Federal Register Volume 79, Number 86 (Monday, May 5, 2014)]
[Proposed Rules]
[Pages 25540-25555]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10212]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2013-0690; FRL-9910-36-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia's Redesignation Request and the Associated Maintenance 
Plan of the West Virginia Portion of the Martinsburg-Hagerstown, WV-MD 
Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State of West Virginia's request to redesignate to 
attainment the West Virginia portion of the Martinsburg-Hagerstown, WV-
MD nonattainment area (Martinsburg Area or Area) for the 1997 annual 
fine particulate matter (PM2.5) national ambient air quality 
standard (NAAQS). EPA is also proposing to determine that the 
Martinsburg Area continues to attain the 1997 annual PM2.5 
NAAQS. In addition, EPA is proposing to approve as a revision to the 
West Virginia State Implementation Plan (SIP), the associated 
maintenance plan to show maintenance of the 1997 annual 
PM2.5 NAAQS through 2025 for the Area. The maintenance plan 
includes the 2017 and 2025 PM2.5 and nitrogen oxides 
(NOX) mobile vehicle emissions budgets (MVEBs) for Berkeley 
County, West Virginia for the 1997 annual PM2.5 NAAQS which 
EPA is proposing to approve for transportation conformity purposes. 
Furthermore, EPA is proposing to approve as a revision to the West 
Virginia SIP, the 2007 base year emissions inventory for the Area for 
the 1997 annual PM2.5 NAAQS. These actions are being taken 
under the Clean Air Act (CAA).

DATES: Written comments must be received on or before June 4, 2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0690 by one of the following methods:

[[Page 25541]]

    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2013-0690, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0690. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the West Virginia Department of Environmental 
Protection, Division of Air Quality, 601 57th Street SE., Charleston, 
West Virginia 24304.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. EPA's Requirements
    A. Criteria for Redesignation to Attainment
    B. Requirements of a Maintenance Plan
III. Summary of Proposed Actions
IV. Effects of Recent Court Decisions on Proposed Actions
    A. Effect of the August 21, 2012 D.C. Circuit Court Decision 
Regarding EPA's CSAPR
    B. Effect of the January 4, 2013 D.C. Circuit Court Decision 
Regarding the PM2.5 Implementation Under Subpart 4 of 
Part D of Title I of the CAA
V. EPA's Analysis of West Virginia's SIP Submittal
    A. Redesignation Request
    B. Maintenance Plan
    C. Transportation Conformity
VI. Proposed Actions
VII. Statutory and Executive Order Reviews

I. Background

    The first air quality standards for PM2.5 were 
established on July 18, 1997 (62 FR 38652). EPA promulgated an annual 
standard at a level of 15 micrograms per cubic meter ([mu]g/m\3\), 
based on a three-year average of annual mean PM2.5 
concentrations (the 1997 annual PM2.5 standard). In the same 
rulemaking, EPA promulgated a 24-hour standard of 65 [mu]g/m\3\ based 
on a three-year average of the 98th percentile of 24-hour 
concentrations.
    On January 5, 2005 (70 FR 944, 1014), EPA published air quality 
area designations for the 1997 PM2.5 NAAQS. In that 
rulemaking action, EPA designated the Martinsburg Area as nonattainment 
for the 1997 annual PM2.5 NAAQS. The Martinsburg Area is 
comprised of Berkeley County in West Virginia (the West Virginia 
portion of the Area) and Washington County in Maryland. See 40 CFR 
81.321 (Maryland) and 40 CFR 81.349 (West Virginia).
    On October 17, 2006 (71 FR 61144), EPA retained the annual average 
standard at 15 [mu]g/m\3\ but revised the 24-hour standard to 35 [mu]g/
m\3\, based again on the three-year average of the 98th percentile of 
the 24-hour concentrations (the 2006 annual PM2.5 standard). 
On November 13, 2009 (74 FR 58688), EPA published designations for the 
2006 24-hour PM2.5 standard, which became effective on 
December 14, 2009. In that rulemaking action, EPA designated the 
Martinsburg Area as attainment for the 2006 24-hour PM2.5 
NAAQS. See 74 FR 58737 and 40 CFR 81.321 (Maryland) and also see 74 FR 
58775 and 40 CFR 81.349 (West Virginia).
    In response to legal challenges of the annual standard promulgated 
in 2006, the D.C. Circuit Court remanded the 2006 annual standard to 
EPA for further consideration. See American Farm Bureau Federation and 
National Pork Producers Council, et. al. v. EPA, 559 F.3d 512 (D.C. 
Cir. 2009). However, given that the 1997 annual and the 2006 annual 
PM2.5 standards are essentially identical, attainment of the 
1997 annual PM2.5 standard would also indicate attainment of 
the remanded 2006 annual PM2.5 standard. Since the 
Martinsburg Area is designated nonattainment for the annual NAAQS 
promulgated in 1997, today's proposed rulemaking action addresses the 
redesignation to attainment only for this standard.
    On November 20, 2009 (74 FR 60199), EPA determined that the 
Martinsburg Area had attained the 1997 annual PM2.5 NAAQS. 
Pursuant to 40 CFR 51.1004(c) and based on this determination, the 
requirements for the Martinsburg Area to submit an attainment 
demonstration and associated reasonably available control measures 
(RACM), a reasonable further progress (RFP) plan, contingency measures, 
and other planning SIP revisions related to the attainment of the 1997 
annual PM2.5 NAAQS were suspended until such time as: (1) 
The Area is redesignated to attainment for the standard, at which time 
the requirements no longer apply; or (2) EPA determines that the Area 
has again violated the standard, at which time such plans are required 
to be submitted. On January 20, 2012 (77 FR 1411), EPA also determined 
that the Martinsburg Area had attained the 1997 annual PM2.5 
NAAQS by the applicable date of April 5, 2010.
    On August 5, 2013, the State of West Virginia through the West 
Virginia Department of Environmental Protection (WVDEP) formally 
submitted a request to redesignate the West Virginia portion of the 
Martinsburg Area from nonattainment to attainment for the 1997 annual 
PM2.5 NAAQS. Concurrently, WVDEP submitted a maintenance 
plan for the Area as a SIP revision to ensure continued attainment 
throughout the Area over the next 10

[[Page 25542]]

years. The maintenance plan also includes a 2007 base year emissions 
inventory for PM2.5, NOX, sulfur dioxide 
(SO2), volatile organic compounds (VOC) and ammonia 
(NH3) for the1997 annual PM2.5 NAAQS in order to 
meet the emissions inventory requirement of section 172(c)(3) of the 
CAA. In addition, the maintenance plan includes the 2017 and 2025 
PM2.5 and NOX MVEBs used for transportation 
conformity purposes for Berkeley County, West Virginia for the 1997 
annual PM2.5 NAAQS.
    In this proposed rulemaking action, EPA takes into account two 
decisions of the United States Court of Appeals for the District of 
Columbia (D.C. Circuit Court). In the first of the two D.C. Circuit 
Court decisions, the D.C. Circuit Court, on August 21, 2012, issued EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), which 
vacated and remanded the Cross-State Air Pollution Control Rule (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 Court denied all petitions for rehearing 
on January 24, 2013. EPA and other parties filed for certiorari to the 
Supreme Court, and on June 24, 2013, the Supreme Court granted 
certiorari on EPA's petition for appeal of EME Homer City Generation. 
See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 
2012), cert. granted, 570 U.S.--(2013). Nonetheless, EPA intends to 
continue to act in accordance with the EME Homer City opinion. In the 
second decision, on January 4, 2013, in Natural Resources Defense 
Council (NRDC) v. EPA, the D.C. Circuit Court remanded to EPA the 
``Final Clean Air Fine Particle Implementation Rule'' (72 FR 20586, 
April 25, 2007) and the ``Implementation of the New Source Review (NSR) 
Program for Particulate Matter Less than 2.5 Micrometers 
(PM2.5)'' final rule (73 FR 28321, May 16, 2008). 706 F.3d 
428 (D.C. Cir. 2013).

II. EPA's Requirements

A. Criteria for Redesignation to Attainment

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
allows for redesignation providing that: (1) EPA determines that the 
area has attained the applicable NAAQS; (2) EPA has fully approved the 
applicable implementation plan for the area under section 110(k) of the 
CAA; (3) EPA determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions;
    (4) EPA has fully approved a maintenance plan for the area as 
meeting the requirements of section 175A of the CAA; and (5) the state 
containing such area has met all requirements applicable to the area 
under section 110 and part D of the CAA. Each of these requirements are 
discussed in section V. of today's proposed rulemaking action.
    EPA has provided guidance on redesignation in the ``SIPs; General 
Preamble for the Implementation of Title I of the CAA Amendments of 
1990,'' (57 FR 13498, April 16, 1992) (the ``General Preamble'') and 
has provided further guidance on processing redesignation requests in 
the following documents: (1) ``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, September 4, 1992 (hereafter 
referred to as the ``1992 Calcagni Memorandum''); (2) ``SIP Actions 
Submitted in Response to CAA Deadlines,'' Memorandum from John 
Calcagni, Director, Air Quality Management Division, October 28, 1992; 
and (3) ``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994.

B. Requirements of a Maintenance Plan

    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A of the CAA, the plan must demonstrate continued 
attainment of the applicable NAAQS for at least 10 years after approval 
of a redesignation of an area to attainment. Eight years after the 
redesignation, the state must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation, as EPA deems 
necessary to assure prompt correction of any future PM2.5 
violations.
    The 1992 Calcagni Memorandum provides additional guidance on the 
content of a maintenance plan. The memorandum states that a maintenance 
plan should address the following provisions: (1) An attainment 
emissions inventory; (2) a maintenance demonstration showing 
maintenance for 10 years; (3) a commitment to maintain the existing 
monitoring network; (4) verification of continued attainment; and (5) a 
contingency plan to prevent or correct future violations of the NAAQS.
    Under the CAA, states are required to submit, at various times, 
control strategy SIP revisions and maintenance plans for nonattainment 
areas and for areas seeking redesignation to attainment for a given 
NAAQS. 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 the relevant criteria 
pollutants and/or their precursors, where appropriate, to address 
pollution from onroad transportation sources. The MVEBs are the 
portions of the total allowable emissions that are allocated to onroad 
vehicle use that, together with emissions from all other sources in the 
area, will provide attainment, RFP, or maintenance, as applicable. The 
budget serves as a ceiling on emissions from an area's planned 
transportation system. 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 maintenance plan for the West Virginia portion of the 
Martinsburg Area, that comprises Berkeley County in West Virginia, 
includes the 2017 and 2025 PM2.5 and NOX MVEBs 
for transportation conformity purposes. The transportation conformity 
determination for the Area is further discussed in section V.C. of 
today's proposed rulemaking action and a technical support document 
(TSD) dated January 28, 2014, available on line at www.regulations.gov, 
Docket ID No. EPA-OAR-R03-2013-0690.

III. Summary of Proposed Actions

    EPA is proposing to take several rulemaking actions related to the 
redesignation of the West Virginia portion of the Martinsburg Area to 
attainment for the 1997 annual PM2.5 NAAQS. EPA is proposing 
to find that the Area meets the requirements for redesignation for the 
1997 annual PM2.5 NAAQS under section 107(d)(3)(E) of the 
CAA. EPA is thus proposing to approve West Virginia's request to change 
the legal definition for the West Virginia portion of the Martinsburg 
Area from nonattainment to attainment for the 1997 annual 
PM2.5 NAAQS. This action does not impact the legal 
definition of the Maryland portion of

[[Page 25543]]

the Area. EPA is taking separate action to redesignate the Maryland 
portion.
    EPA is also proposing to approve the associated maintenance plan 
for the West Virginia portion of the Martinsburg Area as a revision to 
the West Virginia SIP for the 1997 annual PM2.5 NAAQS, 
including the 2017 and 2025 PM2.5 and NOX MVEBs 
of the Area. The approval of the maintenance plan is one of the CAA 
criteria for redesignation of the Area to attainment for the 1997 
annual PM2.5 NAAQS. West Virginia's maintenance plan is 
designed to ensure continued attainment in the West Virginia portion of 
the Martinsburg Area for 10 years after redesignation for the 1997 
annual PM2.5 NAAQS.
    EPA previously determined that the Martinsburg Area has attained 
the 1997 annual PM2.5 NAAQS. Therefore, EPA is proposing to 
find that the Area continues to attain the standard. See 74 FR 60199, 
November 20, 2009 and 77 FR 1411, January 10, 2012. EPA is also 
proposing to approve the 2007 comprehensive emissions inventory that 
includes PM2.5, SO2, NOX, VOC, and 
NH3 for the West Virginia portion of the Area as a revision 
to the West Virginia SIP for the 1997 annual PM2.5 NAAQS in 
order to meet the requirements of section 172(c)(3) of the CAA. EPA's 
analysis of the proposed actions is provided in section V. of today's 
proposed rulemaking action.

IV. Effects of Recent Court Decisions on Proposed Actions

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

1. Background
    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 (EGUs) 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 Court initially vacated CAIR, North Carolina v. EPA, 531 
F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA 
without vacatur to preserve the environmental benefits provided by 
CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
    On December 30, 2011, the D.C. Circuit Court issued an order 
addressing the status of CSAPR and CAIR in response to motions filed by 
numerous parties seeking a stay of CSAPR pending judicial review. In 
that order, the D.C. Circuit Court stayed CSAPR pending resolution of 
the petitions for review of that rule in EME Homer City Generation, 
L.P. v. EPA (No. 11-1302 and consolidated cases). The D.C. Circuit 
Court also indicated that EPA was expected to continue to administer 
CAIR in the interim until judicial review of CSAPR was completed.
    On August 21, 2012, the D.C. Circuit Court issued 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 (D.C. Circ. 2012). The D.C. Circuit 
Court denied all petitions for rehearing on January 24, 2013. EPA and 
other parties have filed petitions for certiorari to the U.S. Supreme 
Court. On June 24, 2013 the Supreme Court granted EPA's petition for 
certiorari. Nonetheless, EPA intends to continue to act in accordance 
with the EME Homer City opinion.
2. Proposal on This Issue
    In light of these unique circumstances and for the reasons 
explained subsequently, to the extent that attainment is due to 
emission reductions associated with CAIR, EPA is here proposing to 
determine that those reductions are sufficiently permanent and 
enforceable for purposes of sections 107(d)(3)(E)(iii) and 175A of the 
CAA. EPA, therefore, proposes to approve the redesignation request and 
the related SIP revisions for the West Virginia portion of the 
Martinsburg Area (Berkeley County, West Virginia), including West 
Virginia's plan for maintaining attainment of the 1997 annual 
PM2.5 NAAQS in the Area.
    As directed by the D.C. Circuit Court, CAIR remains in place and 
enforceable until substituted by a valid replacement rule. West 
Virginia's SIP revision lists CAIR as a control measure that was 
approved by EPA on August 6, 2009 (74 FR 38536) and became state-
effective on May 1, 2008 for the purpose of reducing SO2 and 
NOX emissions. CAIR was thus in place and getting emission 
reductions when the Martinsburg Area monitored attainment of the 1997 
annual PM2.5 NAAQS. The quality-assured, quality-controlled, 
certified monitoring data used to demonstrate the Area's attainment of 
the 1997 annual PM2.5 NAAQS was also impacted by CAIR.
    To the extent that West Virginia is relying on CAIR in its 
maintenance plan, the recent directive from the D.C. Circuit Court in 
EME Homer City ensures that the reductions associated with CAIR will be 
permanent and enforceable for the necessary time period. EPA has been 
ordered by the D.C. Circuit Court to develop a new rule to address 
interstate transport to replace CSAPR, and the opinion makes clear that 
after promulgating that new rule, EPA must provide states an 
opportunity to draft and submit SIPs to implement that rule. Thus, CAIR 
will remain in place until: (1) EPA has promulgated a final rule 
through a notice-and-comment rulemaking process; (2) states have had an 
opportunity to draft and submit SIPs; (3) EPA has reviewed the SIPs to 
determine if they can be approved; and (4) EPA has taken action on the 
SIPs, including promulgating a Federal Implementation Plan (FIP) if 
appropriate. The D.C. Circuit Court's clear instruction to EPA that it 
must continue to administer CAIR until a valid replacement exists 
provides an additional backstop. By definition, any rule that replaces 
CAIR and meets the D.C. Circuit Court's direction would require upwind 
states to have SIPs that eliminate significant contributions to 
downwind nonattainment and prevent interference with maintenance in 
downwind areas.
    Further, in vacating CSAPR and requiring EPA to continue 
administering CAIR, the D.C. Circuit Court emphasized that the 
consequences of vacating CAIR ``might be more severe now in light of 
the reliance interests accumulated over the intervening four years.'' 
EME Homer City, 696 F.3d at 38. The accumulated reliance interests 
include the interests of states 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 D.C. Circuit Court sought to avoid by ordering 
EPA to continue administering CAIR. For these reasons also, EPA 
believes it is appropriate to allow states to rely on CAIR, and the 
existing emissions reductions achieved by CAIR, as sufficiently 
permanent and enforceable for purposes such as redesignation. Following 
promulgation of the replacement rule, EPA will review SIP revisions as 
appropriate to identify whether there are any issues that need to be 
addressed.

[[Page 25544]]

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

1. Background
    On January 4, 2013, in NRDC v. EPA, the D.C. Circuit Court remanded 
to EPA the ``Final Clean Air Fine Particle Implementation Rule'' (72 FR 
20586, April 25, 2007) and the ``Implementation of the NSR Program for 
PM2.5'' final rule (73 FR 28321, May 16, 2008) 
(collectively, ``1997 PM2.5 Implementation Rule''). 706 F.3d 
428 (D.C. Cir. 2013). The D.C. Circuit Court found that EPA erred in 
implementing the 1997 annual PM2.5 NAAQS pursuant to the 
general implementation provisions of subpart 1 of Part D of Title I of 
the CAA (subpart 1), rather than the particulate-matter-specific 
provisions of subpart 4 of Part D of Title I (subpart 4).
    Prior to the January 4, 2013 decision, the states had worked 
towards meeting the air quality goals of the 1997 PM2.5 
NAAQS in accordance with EPA regulations and guidance derived from 
subpart 1 of Part D of Title I of the CAA. Subsequent to this decision, 
EPA took this history into account and responded to the D.C. Circuit 
Court's remand by proposing to set a new deadline for any remaining 
submissions that may be required for a moderate nonattainment area that 
are due to the applicability of subpart 4 of Part D of Title I of the 
CAA.
    On November 21, 2013 (78 FR 69806), EPA issued a proposed rule, 
Identification of Nonattainment Classification and Deadlines for 
Submission of SIP Provisions for the 1997 PM2.5 NAAQS (the 
PM2.5 Subpart 4 Classification and Deadline Rule) 
identifying the classification under subpart 4 for areas currently 
designated nonattainment for the 1997 PM2.5 standards, the 
deadlines for states to submit NSR and attainment-related SIP elements 
required for these areas pursuant to subpart 4, and the EPA guidance 
that is currently available regarding subpart 4 requirements. If 
finalized, this rule will set a deadline for states to submit 
attainment plans and meet other subpart 4 requirements. The proposed 
rule identified December 31, 2014 as the deadline for the states to 
submit any additional attainment-related SIP elements that may be 
needed to meet the applicable requirements of subpart 4 for areas 
currently designated nonattainment for the 1997 PM2.5 NAAQS 
and to submit SIPs addressing the nonattainment NSR requirements in 
subpart 4. Since West Virginia submitted a request to redesignate the 
West Virginia portion of the Martinsburg Area from nonattainment to 
attainment on August 5, 2013 and the proposed PM2.5 Subpart 
4 Classification and Deadline Rule identifies a December 31, 2014 
deadline, West Virginia is not required at this time to meet the 
applicable requirements of subpart 4.
2. Proposal on This Issue
    EPA is proposing to determine that the D.C. Circuit Court's January 
4, 2013 decision does not prevent EPA from redesignating the West 
Virginia portion of the Martinsburg Area to attainment for the 1997 
annual PM2.5 NAAQS. Even in light of the D.C. Circuit 
Court's decision, redesignation for this Area is appropriate under the 
CAA and EPA's longstanding interpretations of the CAA's provisions 
regarding redesignation. EPA first explains its longstanding 
interpretation that requirements that are imposed, or that become due, 
after a complete redesignation request is submitted for an area that is 
attaining the standard, are not applicable for purposes of evaluating a 
redesignation request. Second, EPA then shows that, even if EPA applies 
the subpart 4 requirements to the West Virginia redesignation request 
and disregards the provisions of its 1997 PM2.5 
Implementation Rule recently remanded by the D.C. Circuit Court, the 
State's request for redesignation of the Area still qualifies for 
approval. EPA's discussion takes into account the effect of the D.C. 
Circuit Court's ruling and EPA's proposed PM2.5 Subpart 4 
Classification and Deadline Rule on the Area's maintenance plan, which 
EPA views as approvable when subpart 4 requirements are considered.
a. Applicable Requirements for Purposes of Evaluating the Redesignation 
Request
    With respect to the 1997 PM2.5 Implementation Rule, the 
D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for 
implementing the PM2.5 NAAQS solely in accordance with the 
provisions of subpart 1, and remanded that matter to EPA, so that it 
could address implementation of the 1997 annual PM2.5 NAAQS 
under subpart 4 of Part D of the CAA, in addition to subpart 1. For the 
purposes of evaluating West Virginia's redesignation request for the 
West Virginia portion of the Martinsburg Area, to the extent that 
implementation under subpart 4 would impose additional requirements for 
areas designated nonattainment, EPA believes that those requirements 
are not ``applicable'' for the purposes of section 107(d)(3)(E) of the 
CAA, and thus EPA is not required to consider subpart 4 requirements 
with respect to the redesignation of the West Virginia portion of the 
Martinsburg Area. Under its longstanding interpretation of the CAA, EPA 
has interpreted section 107(d)(3)(E) to mean, as a threshold matter, 
that the part D provisions which are ``applicable'' and which must be 
approved in order for EPA to redesignate an area include only those 
which came due prior to a state's submittal of a complete redesignation 
request. See 1992 Calcagni Memorandum. See also ``SIP Requirements for 
Areas Submitting Requests for Redesignation to Attainment of the Ozone 
and Carbon Monoxide (CO) NAAQS on or after November 15, 1992,'' 
Memorandum from Michael Shapiro, Acting Assistant Administrator, Air 
and Radiation, September 17, 1993 (Shapiro memorandum); Final 
Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 
1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-
27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 
2004) (upholding EPA's redesignation rulemaking applying this 
interpretation and expressly rejecting Sierra Club's view that the 
meaning of ``applicable'' under the statute is ``whatever should have 
been in the plan at the time of attainment rather than whatever 
actually was in the plan and already implemented or due at the time of 
attainment'').\1\ In this case, at the time that West Virginia 
submitted its redesignation request for the 1997 PM2.5 
NAAQS, the requirements under subpart 4 were not due.
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    \1\ Applicable requirements of the CAA that come due subsequent 
to the area's submittal of a complete redesignation request remain 
applicable until a redesignation is approved, but are not required 
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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    EPA's view that, for purposes of evaluating the redesignation of 
the West Virginia portion of the Martinsburg Area, the subpart 4 
requirements were not due at the time West Virginia submitted the 
redesignation request is in keeping with the EPA's interpretation of 
subpart 2 requirements for subpart 1 ozone areas redesignated 
subsequent to the D.C. Circuit Court's decision in South Coast Air 
Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South 
Coast, the D.C. Circuit Court found that EPA was not permitted to 
implement the 1997 8-hour ozone standard solely under subpart 1, and 
held that EPA was required under the statute to implement the standard 
under the ozone-specific requirements of subpart 2 as well. Subsequent 
to the

[[Page 25545]]

South Coast decision, in evaluating and acting upon redesignation 
requests for the 1997 8-hour ozone standard that were submitted to EPA 
for areas under subpart 1, EPA applied its longstanding interpretation 
of the CAA that ``applicable requirements,'' for purposes of evaluating 
a redesignation, are those that had been due at the time the 
redesignation request was submitted. See, e.g., Proposed Redesignation 
of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 
22050, April 27, 2010). In those rulemaking actions, EPA therefore, did 
not consider subpart 2 requirements to be ``applicable'' for the 
purposes of evaluating whether the area should be redesignated under 
section 107(d)(3)(E) of the CAA.
    EPA's interpretation derives from the provisions of section 
107(d)(3) of the CAA. Section 107(d)(3)(E)(v) states that, for an area 
to be redesignated, a state must meet ``all requirements `applicable' 
to the area under section 110 and part D.'' Section 107(d)(3)(E)(ii) 
provides that EPA must have fully approved the ``applicable'' SIP for 
the area seeking redesignation. These two sections read together 
support EPA's interpretation of ``applicable'' as only those 
requirements that came due prior to submission of a complete 
redesignation request.
    First, holding states to an ongoing obligation to adopt new CAA 
requirements that arose after the state submitted its redesignation 
request, in order to be redesignated, would make it problematic or 
impossible for EPA to act on redesignation requests in accordance with 
the 18-month deadline Congress set for EPA action in section 
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a 
continuing flow of requirements with no reasonable limitation, states, 
after submitting a redesignation request, would be forced continuously 
to make additional SIP submissions that in turn would require EPA to 
undertake further notice-and-comment rulemaking actions to act on those 
submissions. This would create a regime of unceasing rulemaking that 
would delay action on the redesignation request beyond the 18-month 
timeframe provided by the CAA for this purpose.
    Second, a fundamental premise for redesignating a nonattainment 
area to attainment is that the area has attained the relevant NAAQS due 
to emission reductions from existing controls. Thus, an area for which 
a redesignation request has been submitted would have already attained 
the NAAQS as a result of satisfying statutory requirements that came 
due prior to the submission of the request. Absent a showing that 
unadopted and unimplemented requirements are necessary for future 
maintenance, it is reasonable to view the requirements applicable for 
purposes of evaluating the redesignation request as including only 
those SIP requirements that have already come due. These are the 
requirements that led to attainment of the NAAQS. To require, for 
redesignation approval, that a state also satisfy additional SIP 
requirements coming due after the state submits its complete 
redesignation request, and while EPA is reviewing it, would compel the 
state to do more than is necessary to attain the NAAQS, without a 
showing that the additional requirements are necessary for maintenance.
    In the context of this redesignation, the timing and nature of the 
D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA and EPA's 
November 21, 2013 proposed PM2.5 Subpart 4 Classification 
and Deadline Rule, compound the consequences of imposing requirements 
that come due after the redesignation request is submitted. West 
Virginia submitted its redesignation request for the 1997 annual 
PM2.5 NAAQS on August 5, 2013 for the West Virginia portion 
of the Martinsburg Area, which is prior to the deadline by which the 
Area is required to meet the applicable requirements pursuant to 
subpart 4.
    To require West Virginia's fully-completed and pending 
redesignation request for the 1997 annual PM2.5 NAAQS to 
comply now with requirements of subpart 4 that the D.C. Circuit Court 
announced only in January 2013 and for which the deadline to comply has 
not yet come, would be to give retroactive effect to such requirements 
and provide West Virginia a unique and earlier deadline for compliance 
solely on the basis of submitting a redesignation request for the West 
Virginia portion of the Martinsburg Area. The D.C. Circuit Court 
recognized the inequity of this type of retroactive impact in Sierra 
Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),\2\ where it upheld the 
D.C. Circuit Court's ruling refusing to make retroactive EPA's 
determination that the Area did not meet its attainment deadline. In 
that case, petitioners urged the D.C. Circuit Court to make EPA's 
nonattainment determination effective as of the date that the statute 
required, rather than the later date on which EPA actually made the 
determination. The D.C. Circuit Court rejected this view, stating that 
applying it ``would likely impose large costs on States, which would 
face fines and suits for not implementing air pollution prevention 
plans . . . even though they were not on notice at the time.'' Id. at 
68. Similarly, it would be unreasonable to penalize the State of West 
Virginia by rejecting its redesignation request for an area that is 
already attaining the 1997 annual PM2.5 NAAQS and that met 
all applicable requirements known to be in effect at the time of the 
requests. For EPA now to reject the redesignation request solely 
because West Virginia did not expressly address subpart 4 requirements 
which have not yet come due and for which it had little to no notice, 
would inflict the same unfairness condemned by the D.C. Circuit Court 
in Sierra Club v. Whitman.
---------------------------------------------------------------------------

    \2\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit Court decision that addressed retroactivity in a 
quite different context, where, unlike the situation here, EPA 
sought to give its regulations retroactive effect. National 
Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. 
Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert 
denied 132 S. Ct. 571 (2011).
---------------------------------------------------------------------------

b. Subpart 4 Requirements and West Virginia Redesignation Request
    Even if EPA were to take the view that the D.C. Circuit Court's 
January 4, 2013 decision requires that, in the context of pending 
redesignations for the 1997 annual PM2.5 NAAQS, subpart 4 
requirements were due and in effect at the time West Virginia submitted 
its redesignation request, EPA proposes to determine that the West 
Virginia portion of the Martinsburg Area still qualifies for 
redesignation to attainment for the 1997 annual PM2.5 NAAQS. 
As explained subsequently, EPA believes that the redesignation request 
for the West Virginia portion of the Martinsburg 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 for the 1997 annual PM2.5 NAAQS.
    With respect to evaluating the relevant substantive requirements of 
subpart 4 for purposes of redesignating the West Virginia portion of 
the Martinsburg Area, EPA notes that subpart 4 incorporates components 
of subpart 1 of part D, which contains general air quality planning 
requirements for areas designated as nonattainment. See section 172(c). 
Subpart 4 itself contains specific planning and scheduling requirements 
for coarse particulate matter (PM10) \3\ nonattainment 
areas, and under the D.C. Circuit Court's January 4, 2013 decision in 
NRDC v. EPA, these same statutory

[[Page 25546]]

requirements also apply for PM2.5 nonattainment areas. EPA 
has longstanding general guidance that interprets the 1990 amendments 
to the CAA, making recommendations to states for meeting the statutory 
requirements for SIPs for nonattainment areas. See, the General 
Preamble. In the General Preamble, EPA discussed the relationship of 
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 
1 requirements were to an extent ``subsumed by, or integrally related 
to, the more specific PM10 requirements'' (57 FR 13538, 
April 16, 1992). The subpart 1 requirements include, among other 
things, provisions for attainment demonstrations, RACM, RFP, emissions 
inventories, and contingency measures.
---------------------------------------------------------------------------

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

    For the purposes of this redesignation request, in order to 
identify any additional requirements which would apply under subpart 4, 
consistent with EPA's November 21, 2013 proposed PM2.5 
Subpart 4 Classification and Deadline Rule, EPA is considering the 
Martinsburg Area to be a ``moderate'' PM2.5 nonattainment 
area. As EPA explained in its November 21, 2013 proposed rule, section 
188 of the CAA provides that all areas designated nonattainment areas 
under subpart 4 are initially classified by operation of law as 
``moderate'' nonattainment areas, and 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 NSR program is not 
considered an applicable requirement for redesignation, provided the 
area can maintain the standard with a prevention of significant 
deterioration (PSD) program after redesignation. A detailed rationale 
for this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled, 
``Part D NSR Requirements for Areas Requesting Redesignation to 
Attainment.'' See also rulemakings for Detroit, Michigan (60 FR 12467-
12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 
20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 
23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 
1996).
---------------------------------------------------------------------------

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

    With respect to the specific attainment planning requirements under 
subpart 4,\5\ when EPA evaluates a redesignation request under either 
subpart 1 and/or 4, any area that is attaining the PM2.5 
NAAQS is viewed as having satisfied the attainment planning 
requirements for these subparts. For redesignations, EPA has for many 
years interpreted attainment-linked requirements as not applicable for 
areas attaining the standard. In the General Preamble, EPA stated that: 
``The requirements for RFP will not apply in evaluating a request for 
redesignation to attainment since, at a minimum, the air quality data 
for the area must show that the area has already attained. Showing that 
the State will make RFP towards attainment will, therefore, have no 
meaning at that point.''
---------------------------------------------------------------------------

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

    The General Preamble also explained that: ``[t]he section 172(c)(9) 
requirements are directed at ensuring RFP and attainment by the 
applicable date. These requirements no longer apply when an area has 
attained the standard and is eligible for redesignation. Furthermore, 
section 175A for maintenance plans . . . provides specific requirements 
for contingency measures that effectively supersede the requirements of 
section 172(c)(9) for these areas.'' Id. EPA similarly stated in its 
1992 Calcagni Memorandum that, ``The requirements for reasonable 
further progress and other measures needed for attainment will not 
apply for redesignations because they only have meaning for areas not 
attaining the standard.''
    It is evident that even if we were to consider the D.C. Circuit 
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\ or prior to December 13, 2014 and thus, were due 
prior to West Virginia's redesignation request, those requirements do 
not apply to an area that is attaining the 1997 annual PM2.5 
NAAQS, for the purpose of evaluating a pending request to redesignate 
the area to attainment. EPA has consistently enunciated this 
interpretation of applicable requirements under section 107(d)(3)(E) 
since the General Preamble was published more than twenty years ago. 
Courts have recognized the scope of EPA's authority to interpret 
``applicable requirements'' in the redesignation context. See Sierra 
Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
---------------------------------------------------------------------------

    \6\ As EPA has explained above, we do not believe that the D.C. 
Circuit 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 the1997 annual PM2.5 NAAQS. EPA's prior 
``Clean Data Policy'' rulemakings for the PM10 NAAQS, also 
governed by the requirements of subpart 4, explain EPA's reasoning. 
They describe the effects of a determination of attainment on the 
attainment-related SIP planning requirements of subpart 4. See 
``Determination of Attainment for Coso Junction Nonattainment Area,'' 
(75 FR 27944, May 19, 2010). See also Coso Junction Proposed 
PM10 Redesignation, (75 FR 36023, 36027, June 24, 2010); 
Proposed and Final Determinations of Attainment for San Joaquin 
Nonattainment Area (71 FR 40952, 40954-55, July 19, 2006; and 71 FR 
63641, 63643-47, October 30, 2006). In short, EPA in this context has 
also long concluded that to require states to meet superfluous SIP 
planning requirements is not necessary and not required by the CAA, so 
long as those areas continue to attain the relevant NAAQS. Elsewhere in 
this notice, EPA determined that the Martinsburg Area has attained the 
1997 annual PM2.5 NAAQS. Under its longstanding 
interpretation, EPA is proposing to determine here that the West 
Virginia portion of the Area meets the attainment-related plan 
requirements of subparts 1 and 4 for the 1997 annual PM2.5 
NAAQS. Thus, EPA

[[Page 25547]]

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 this redesignation request.
c. Subpart 4 and Control of PM2.5 Precursors
    The D.C. Circuit Court in NRDC v. EPA remanded to EPA the two rules 
at issue in the case with instructions to EPA to re-promulgate them 
consistent with the requirements of subpart 4. EPA in this section 
addresses the D.C. Circuit Court's opinion with respect to 
PM2.5 precursors. While past implementation of subpart 4 for 
PM10 has allowed for control of PM10 precursors 
such as NOX from major stationary, mobile, and area sources 
in order to attain the standard as expeditiously as practicable, 
section 189(e) of the CAA specifically provides that control 
requirements for major stationary sources of direct PM10 
shall also apply to PM10 precursors from those sources, 
except where EPA determines that major stationary sources of such 
precursors ``do not contribute significantly to PM10 levels 
which exceed the standard in the area.''
    EPA's 1997 PM2.5 Implementation Rule, remanded by the 
D.C. Circuit Court, contained rebuttable presumptions concerning 
certain PM2.5 precursors applicable to attainment plans and 
control measures related to those plans. Specifically, in 40 CFR 
51.1002, EPA provided, among other things, that a state was ``not 
required to address VOC [and NH3] as . . . PM2.5 
attainment plan precursor[s] and to evaluate sources of VOC [and 
NH3] emissions in the State for control measures.'' EPA 
intended these to be rebuttable presumptions. EPA established these 
presumptions at the time because of uncertainties regarding the 
emission inventories for these pollutants and the effectiveness of 
specific control measures in various regions of the country in reducing 
PM2.5 concentrations. EPA also left open the possibility for 
such regulation of VOC and NH3 in specific areas where that 
was necessary.
    The D.C. Circuit Court in its January 4, 2013 decision made 
reference to both section 189(e) and 40 CFR 51.1002, and stated that, 
``In light of our disposition, we need not address the petitioners' 
challenge to the presumptions in [40 CFR 51.1002] that VOCs and 
NH3 are not PM2.5 precursors, as subpart 4 
expressly governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
    Elsewhere in the D.C. Circuit Court's opinion, however, the D.C. 
Circuit Court observed: ``NH3 is a precursor to fine 
particulate matter, making it a precursor to both PM2.5 and 
PM10. For a PM10 nonattainment area governed by 
subpart 4, a precursor is presumptively regulated. See 42 U.S.C. 
7513a(e) [section 189(e)].'' Id. at 21, n.7.
    For a number of reasons, EPA believes that its proposed 
redesignation of the West Virginia portion of the Martinsburg Area for 
the 1997 annual PM2.5 NAAQS are consistent with the D.C. 
Circuit Court's decision on this aspect of subpart 4. First, while the 
D.C. Circuit Court, citing section 189(e), stated that ``for a 
PM10 area governed by subpart 4, a precursor is 
`presumptively' regulated,'' the D.C. Circuit Court expressly declined 
to decide the specific challenge to EPA's 1997 PM2.5 
Implementation Rule provisions regarding NH3 and VOC as 
precursors. The D.C. Circuit Court had no occasion to reach whether and 
how it was substantively necessary to regulate any specific precursor 
in a particular PM2.5 nonattainment area, and did not 
address what might be necessary for purposes of acting upon a 
redesignation request.
    However, even if EPA takes the view that the requirements of 
subpart 4 were deemed applicable at the time the state submitted the 
redesignation request, and disregards the 1997 PM2.5 
Implementation Rule's rebuttable presumptions regarding NH3 
and VOC as PM2.5 precursors, 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 West Virginia portion of the Martinsburg Area, EPA believes 
that doing so is consistent with proposing redesignation of the West 
Virginia portion of the Area for the 1997 annual PM2.5 
NAAQS. The West Virginia portion of the Area has attained the 1997 
annual PM2.5 NAAQS without any specific additional controls 
of NH3 and VOC and emissions from any sources in the Area.
    Precursors in subpart 4 are specifically regulated under the 
provisions of section 189(e), which requires, with important 
exceptions, control requirements for major stationary sources of 
PM10 precursors.\7\ Under subpart 1 and EPA's prior 
implementation rule, all major stationary sources of PM2.5 
precursors were subject to regulation, with the exception of 
NH3 and VOC. Thus we must address here whether additional 
controls of NH3 and VOC from major stationary sources are 
required under section 189(e) of subpart 4 in order to redesignate the 
Area for the 1997 annual PM2.5 NAAQS. As explained 
subsequently, we do not believe that any additional controls of 
NH3 and VOC are required in the context of this 
redesignation.
---------------------------------------------------------------------------

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

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

    \8\ The Martinsburg Area has reduced VOC emissions through the 
implementation of various control programs including VOC Reasonably 
Available Control Technology (RACT) regulations and various on-road 
and non-road motor vehicle control programs.
---------------------------------------------------------------------------

    EPA notes that its 1997 PM2.5 Implementation Rule 
provisions in 40 CFR 51.1002 were not directed at evaluation of 
PM2.5 precursors in the context of redesignation, but at SIP 
plans and control measures required to bring a nonattainment area into 
attainment of the 1997 annual PM2.5 NAAQS. By contrast, 
redesignation to attainment primarily requires the nonattainment area 
to have already

[[Page 25548]]

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

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

    In summary, even if, prior to the date of the redesignation request 
submittal, West Virginia was required to address precursors for the 
Martinsburg Area under subpart 4 rather than under subpart 1, as 
interpreted in EPA's remanded 1997 PM2.5 Implementation 
Rule, EPA would still conclude that the West Virginia portion of the 
Martinsburg Area had met all applicable requirements for purposes of 
redesignation in accordance with section 107(d)(3)(E)(ii) and (v) of 
the CAA.

V. EPA's Analysis of West Virginia's SIP Submittal

    EPA is proposing several rulemaking actions for the West Virginia 
portion of the Martinsburg Area: (1) To redesignate the Area to 
attainment for the 1997 annual PM2.5 NAAQS; (2) to approve 
into the West Virginia SIP, the associated maintenance plan for the 
1997 annual PM2.5 NAAQS; and (3) to approve the 2007 
comprehensive emissions inventory into the West Virginia SIP to satisfy 
section 172(c)(3) of the CAA requirement for the Area, one of the 
criteria for redesignation. EPA's proposed approvals of the 
redesignation request and maintenance plan for the 1997 annual 
PM2.5 NAAQS are based upon EPA's determination that the Area 
continues to attain the 1997 annual PM2.5 NAAQS, which EPA 
is proposing in this rulemaking action, and that all other 
redesignation criteria have been met for the West Virginia portion of 
the Area. In addition, EPA is proposing to approve the 2017 and 2025 
MVEBs for Berkeley County, West Virginia for transportation conformity 
purposes. The following is a description of how the West Virginia's 
August 5, 2013 submittal satisfies the requirements of section 
107(d)(3)(E) of the CAA for the 1997 annual PM2.5 NAAQS.

A. Redesignation Request

1. Attainment
    As noted previously, in the final rulemaking action dated January 
10, 2012 (77 FR 1411), EPA determined that the entire Martinsburg Area 
had attained the 1997 annual PM2.5 NAAQS. This determination 
of attainment was based upon complete, quality-assured and certified 
ambient air quality monitoring data for the period of 2007-2009 showing 
that the Area had attained the 1997 annual PM2.5 NAAQS by 
its applicable attainment date of April 5, 2010. On November 20, 2009 
(74 FR 60199), EPA determined that the Martinsburg Area had clean data 
for the 1997 annual PM2.5 NAAQS. The determination was based 
upon complete, quality assured, and certified ambient air monitoring 
date showing that this Area has monitored attainment of the 1997 annual 
PM2.5 NAAQS based on the 2006-2008 data and data available 
to date for 2012 in EPA's Air Quality System (AQS) database. Further 
discussion of pertinent air quality issues underlying this 
determination was provided in the notice of proposed rulemaking for 
EPA's determination of attainment for this Area, published on September 
29, 2009 (74 FR 49833) for the 1997 annual PM2.5 NAAQS.
    EPA has reviewed the ambient air quality PM2.5 
monitoring data in the Martinsburg Area consistent with the 
requirements contained at 40 CFR part 50, and recorded in EPA's AQS 
database. To support the previous determinations of attainment of the 
Area, EPA has also reviewed more recent data in its AQS database, 
including certified, quality-assured data for the period from 2008-
2010, 2009-2011 and 2010-2012. This data, shown in Table 1, shows that 
the Martinsburg Area continues to attain the 1997 annual 
PM2.5 NAAQS. In addition, as discussed subsequently with 
respect to the maintenance plan, WVDEP has committed to continue 
monitoring ambient PM2.5 concentrations in accordance with 
40 CFR part 58. Thus, EPA is proposing to determine that the 
Martinsburg Area continues to attain the 1997 PM2.5 NAAQS.

[[Page 25549]]



  Table 1--Design Values for the Martinsburg Area for the 1997 Annual PM2.5 NAAQS for 2008-2010, 2009-2011 and
                                          2010-2012 Monitoring Periods
                                                 [In [mu]g/m\3\]
----------------------------------------------------------------------------------------------------------------
                                                                               Annual design values
                           Monitor ID                            -----------------------------------------------
                                                                     2008-2010       2009-2011       2010-2012
----------------------------------------------------------------------------------------------------------------
54-003-0003.....................................................            12.9            11.8            11.6
24-043-0009.....................................................            11.0            10.9            11.0
----------------------------------------------------------------------------------------------------------------

2. The Area Has Met All Applicable Requirements Under Section 110 and 
Subpart 1 of the CAA and Has a Fully Approved SIP Under Section 110(k) 
of the CAA
    In accordance with section 107(d)(3)(E)(v) of the CAA, the SIP 
revisions for the 1997 annual PM2.5 NAAQS for the West 
Virginia portion of the Martinsburg Area must be fully approved under 
section 110(k) of the CAA and all the requirements applicable to the 
Area under section 110 of the CAA (general SIP requirements) and part D 
of Title I of the CAA (SIP requirements for nonattainment areas) must 
be met.
a. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 
110(a)(2) of the CAA include, but are not limited to the following: (1) 
Submittal of a SIP that has been adopted by the state after reasonable 
public notice and hearing; (2) provisions for establishment and 
operation of appropriate procedures needed to monitor ambient air 
quality; (3) implementation of a source permit program; provisions for 
the implementation of Part C requirements (PSD); (4) provisions for the 
implementation of Part D requirements for NSR permit programs; (5) 
provisions for air pollution modeling; and (6) provisions for public 
and local agency participation in planning and emission control rule 
development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain certain 
measures to prevent sources in a state from significantly contributing 
to air quality problems in another state. To implement this provision, 
EPA has required certain states to establish programs to address the 
interstate transport of air pollutants in accordance with the 
NOX SIP Call (63 FR 57356, October 27, 1998), amendments to 
the NOX SIP Call (64 FR 26298, May 14, 1999 and 65 FR 11222, 
March 2, 2000), and CAIR (70 FR 25162, May 12, 2005). However, the 
section 110(a)(2)(D) requirements for a state are not linked with a 
particular nonattainment area's designation and classification in that 
state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classifications are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state. Thus, EPA does not believe that these requirements 
are applicable requirements for purposes of redesignation.
    In addition, EPA believes that the other section 110(a)(2) elements 
of the CAA not connected with nonattainment plan submissions and not 
linked with an area's attainment status are not applicable requirements 
for purposes of redesignation. The Martinsburg Area will still be 
subject to these requirements after it is redesignated. EPA concludes 
that section 110(a)(2) of the CAA and part D requirements which are 
linked with a particular area's designation and classification are the 
relevant measures to evaluate in reviewing a redesignation request, and 
that section 110(a)(2) elements of the CAA not linked in the area's 
nonattainment status are not applicable for purposes of redesignation. 
This approach is consistent with EPA's existing policy on applicability 
of conformity (i.e., for redesignations) and oxygenated fuels 
requirement. See Reading, Pennsylvania, proposed and final rulemakings 
(61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-
Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and 
Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995). See 
also the discussion on this issue in the Cincinnati, Ohio redesignation 
(65 FR 37890, June 19, 2000) and in the Pittsburgh, Pennsylvania 
redesignation (66 FR 53099, October 19, 2001).
    EPA has reviewed the West Virginia SIP and has concluded that it 
meets the general SIP requirements under section 110(a)(2) of the CAA 
to the extent they are applicable for purposes of redesignation. EPA 
has previously approved provisions of West Virginia's SIP addressing 
section 110(a)(2) requirements, including provisions addressing 
PM2.5. See (76 FR 47062, August 4, 2011). These requirements 
are, however, statewide requirements that are not linked to the 
PM2.5 nonattainment status of the Martinsburg Area. 
Therefore, EPA believes that these SIP elements are not applicable 
requirements for purposes of review of West Virginia's PM2.5 
redesignation request.
b. Subpart 4 Requirements
    Subpart 1 sets forth the basic nonattainment plan requirements 
applicable to PM2.5 nonattainment areas. Under section 172 
of the CAA, states with nonattainment areas must submit plans providing 
for timely attainment and meet a variety of other requirements.
    The General Preamble for Implementation of Title I discusses the 
evaluation of these requirements in the context of EPA's consideration 
of a redesignation request. The General Preamble sets forth EPA's view 
of applicable requirements for purposes of evaluating redesignation 
requests when an area is attaining the standard. See 57 FR 13498 (April 
16, 1992).
    As noted previously, EPA has determined that the Martinsburg Area 
has attained the 1997 annual PM2.5 NAAQS. Pursuant to 40 CFR 
51.2004(c), the requirement for West Virginia to submit for the West 
Virginia portion of the Martinsburg Area an attainment demonstration 
and associated RACM, an RFP plan, contingency measures, and other 
planning SIPs related to the attainment of the 1997 annual 
PM2.5 NAAQS are suspended until the Area is redesignated to 
attainment for the standard, or EPA determines that the Area again 
violated the standard, at which time such plans are required to

[[Page 25550]]

be submitted. Since the Area has reached attainment for the 1997 annual 
PM2.5 NAAQS and continues to attain the standard, no 
additional measures are needed to provide for attainment. Therefore, 
the requirements of sections 172(c)(1), 172(c)(2), 172(c)(6), and 
172(c)(9) of the CAA are no longer considered to be applicable for 
purposes of redesignation of the Area for the 1997 annual 
PM2.5 NAAQS.
    Section 172(c)(3) of the CAA requires submission and approval of a 
comprehensive, accurate and current inventory of actual emissions. As a 
result of EPA's determination of attainment of the Area for the 1997 
annual PM2.5 NAAQS, in which certain planning requirements 
were suspended for the standard, the only remaining requirement under 
section 172 of the CAA to be considered for purposes of redesignation 
of the Area is the comprehensive emissions inventory required under 
section 172(c)(3) of the CAA. As part of West Virginia's August 5, 2013 
submittal, the State submitted a 2007 base year emissions inventory for 
the West Virginia portion of the Martinsburg Area for the 1997 annual 
PM2.5 NAAQS which includes emissions estimates that cover 
the general source categories of point sources, nonroad mobile sources, 
area sources and on-road mobile sources. The pollutants that comprise 
the inventory are NOX, VOCs, PM2.5, 
NH3, and SO2.
    In this rulemaking action, EPA is proposing to approve West 
Virginia's 2007 base year emissions inventory in accordance with 
section 172(c)(3) of the CAA. Final approval of the 2007 base year 
emissions inventory will satisfy the emissions inventory requirement 
under section 172(c)(3) of the CAA. For more information on the 
evaluation and EPA's analysis of the 2007 base year emissions 
inventory, see Appendix B of the State submittal and the emissions 
inventory technical support document (TSD) dated January 14, 2014, 
available on line at www.regulations.gov, Docket ID No. EPA-OAR-R03-
2013-0690. A summary of the 2007 base year emissions inventory is shown 
in Table 2.

   Table 2--Summary of the 2007 Base Year Emissions Inventory, Berkeley County, West Virginia in Tons per Year
                                                      [tpy]
----------------------------------------------------------------------------------------------------------------
                                        SO2             NOX            PM2.5            VOC             NH3
----------------------------------------------------------------------------------------------------------------
Point...........................           1,444           1,967             277             231              91
Area............................             300             121             677           1,386             173
Locomotive & Marine (LM)........              34             943              32              63            0.42
Nonroad.........................              26             437              41             389            0.41
Fire............................            0.02            0.07            0.22            0.13            0.01
Onroad..........................              30           5,005             176           1,378              52
                                 -------------------------------------------------------------------------------
    Total.......................           2,462           8,473           1,154           3,447             317
----------------------------------------------------------------------------------------------------------------

    Section 172(c)(4) of the CAA requires the identification and 
quantification of allowable emissions for major new and modified 
stationary sources in an area, and section 172(c)(5) of the CAA 
requires source permits for the construction and operation of new and 
modified major stationary sources anywhere in the nonattainment area. 
EPA has determined that, since the PSD requirements will apply after 
redesignation, areas being redesignated need not comply with the 
requirement that a nonattainment NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
NAAQS without part D NSR. A more detailed rationale for this view is 
described in a memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation, dated October 14, 1994 entitled, ``Part D NSR 
Requirements for Areas Requesting Redesignation to Attainment.'' 
Nevertheless, West Virginia currently has an approved NSR program, 
codified in 45 CSR 19. See 71 FR 64468 (November 2, 2006) (approving 
NSR program into the SIP). See also 77 FR 63736 (October 17, 2012) 
(approving revisions to West Virginia's PSD program). However, West 
Virginia's PSD program for the 1997 annual PM2.5 NAAQS will 
become effective in the Martinsburg Area upon redesignation to 
attainment.
    Section 172(c)(7) of the CAA requires the SIP to meet the 
applicable provisions of section 110(a)(2) of the CAA. As noted 
previously, EPA believes the West Virginia SIP meets the requirements 
of section 110(a)(2) of the CAA that are applicable for purposes of 
redesignation.
    Section 175A of the CAA requires a state seeking redesignation to 
attainment to submit a SIP revision to provide for the maintenance of 
the NAAQS in the area ``for at least 10 years after the 
redesignation.'' In conjunction with its request to redesignate the 
West Virginia portion of the Martinsburg Area to attainment status, 
West Virginia submitted SIP revisions to provide for maintenance of the 
1997 annual PM2.5 NAAQS in the Area for at least 10 years 
after redesignation, throughout 2025. West Virginia is requesting that 
EPA approve this SIP revision as meeting the requirement of section 
175A of the CAA. Once approved, the maintenance plan for the West 
Virginia portion of the Martinsburg Area will ensure that the SIP for 
West Virginia meets the requirements of the CAA regarding maintenance 
of the 1997 annual PM2.5 NAAQS for the Area. EPA's analysis 
of the maintenance plan is provided in section V.B. of today's proposed 
rulemaking action.
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects developed, funded or approved under Title 23 of 
the United States Code (U.S.C.) and the Federal Transit Act 
(transportation conformity) as well as to all other Federally supported 
or funded projects (general conformity). State transportation 
conformity SIP revisions must be consistent with Federal conformity 
regulations relating to consultation, enforcement and enforceability 
which EPA promulgated pursuant to its authority under the CAA. EPA 
interprets the conformity SIP requirements as not applying for purposes 
of evaluating the redesignation request under section 107(d) of the CAA 
because state conformity rules are still required after redesignation 
and Federal conformity rules apply where state rules have not been 
approved. See Wall v. EPA, 265 F.3d 426, (6th Cir. 2001)

[[Page 25551]]

(upholding this interpretation). See also 60 FR 62748 (December 7, 
1995) (discussing Tampa, Florida).
    Thus, for purposes of redesignating to attainment the Martinsburg 
Area for the 1997 annual PM2.5 NAAQS, EPA determines that 
the Area has met all applicable SIP requirements under part D of Title 
I of the CAA. EPA also determines that upon final approval of the 2007 
comprehensive emissions inventory as proposed in this rulemaking 
action, the Martinsburg Area will also meet all applicable SIP 
requirements under part D of Title I of the CAA for purposes of 
redesignating the Area to attainment for the 1997 annual 
PM2.5 NAAQS.
c. The West Virginia Portion of the Martinsburg Area Has a Fully 
Approved Applicable SIP Under Section 110(k) of the CAA
    For purposes of redesignation to attainment for the 1997 annual 
PM2.5 NAAQS, EPA has fully approved all applicable 
requirements of the West Virginia SIP for the Area in accordance with 
section 110(k) of the CAA. Upon final approval of the 2007 
comprehensive emissions inventory proposed in this rulemaking action, 
EPA will have fully SIP-approved all applicable requirements of the 
West Virginia SIP for the Area for purposes of redesignaton to 
attainment for the 1997 annual PM2.5 NAAQS in accordance 
with section 110(k) of the CAA.
3. Permanent and Enforceable Reductions in Emissions
    For redesignating a nonattainment area to attainment, section 
107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air 
quality improvement in the area is due to permanent and enforceable 
reductions in emissions resulting from implementation of the SIP and 
applicable Federal air pollution control regulations and other 
permanent and enforceable reductions.
    In making this demonstration, West Virginia has calculated the 
change in emissions between 2005, one of the years used to designate 
the Area as nonattainment, and 2007, one of the years the Area 
monitored attainment as provided in Table 3. Sectors included in Table 
3 are point, including airports; area; locomotive and marine (LM); 
nonroad; fire; and onroad. There are no EGUs located in Berkeley 
County. The reduction in emissions and the corresponding improvement in 
air quality from 2005 to 2007 in the Martinsburg Area can be attributed 
to a number of regulatory control measures that have been implemented 
in the Area and contributing areas in recent years. For more 
information on EPA's analysis of the 2005 and 2007 emissions inventory, 
see EPA's emissions inventory TSD dated January 14, 2014, available in 
the docket for this rulemaking action at www.regulations.gov. Docket ID 
No. EPA-OAR-RO3-2013-0690.

  Table 3--Comparison of 2005 Nonattainment Year and 2007 Attainment Year Reductions in tpy in the Martinsburg
                                                      Area
----------------------------------------------------------------------------------------------------------------
                                                 Sector                2005            2007          Decrease
----------------------------------------------------------------------------------------------------------------
PM2.5.................................  Point...................             361             227             134
                                        Area....................           1,430             677             753
                                        LM......................              25              32              -7
                                        Nonroad.................              45              41               4
                                        Fire....................            0.00            0.22           -0.22
                                        Onroad..................             199             176              23
                                        Total...................           2,059           1,154             905
NOX...................................  Point...................           3,402           1,967           1,435
                                        Area....................             636             121             515
                                        LM......................             849             943             -94
                                        Nonroad.................             469             437              32
                                        Fire....................            0.00            0.07           -0.07
                                        Onroad..................           5,520           5,005             515
                                        Total...................          10,875           8,473           2,402
SO2...................................  Point...................           1,978           1,444             534
                                        Area....................             575             300             275
                                        LM......................              51              34              17
                                        Nonroad.................              49              26              23
                                        Fire....................            0.00            0.02           -0.02
                                        Onroad..................             109              30              79
                                        Total...................           2,762           1,834             928
VOC...................................  Point...................             298             231              67
                                        Area....................           2,505           1,386           1,119
                                        LM......................              52              63             -11
                                        Nonroad.................             404             389              15
                                        Fire....................            0.00            0.13           -0.13
                                        Onroad..................           1,473           1,378              95
                                        Total...................           4,732           3,447           1,285
NH3...................................  Point...................              67              91             -24
                                        Area....................             198             173              25
                                        LM......................            0.35            0.42           -0.07
                                        Nonroad.................            0.39            0.41           -0.02
                                        Fire....................            0.00            0.01           -0.01
                                        Onroad..................              52              52               0
                                        Total...................             318             317               1
----------------------------------------------------------------------------------------------------------------


[[Page 25552]]

a. Federal Measures Implemented
    Reductions in PM2.5 precursor emissions have occurred 
statewide and in upwind states as a result of Federal emission control 
measures, with additional emission reductions expected to occur in the 
future. The Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards (Tier 2 Standards) have resulted in lower NOX and 
SO2 emissions from new cars and light duty trucks, including 
sport utility vehicles. The Federal rules were phased in between 2004 
and 2009. EPA has estimated that, after phasing in the new 
requirements, new vehicles emit less NOX in the following 
percentages: Passenger cars (light duty vehicles)--77 percent; light 
duty trucks, minivans, and sports utility vehicles--86 percent; and 
larger sports utility vehicles, vans, and heavier trucks--69-95 
percent. EPA expects fleet wide average emissions to decline by similar 
percentages as new vehicles replace older vehicles. The Tier 2 
standards also reduced the sulfur content of gasoline to 30 parts per 
million (ppm) beginning in January 2006, which reflects up to a 90 
percent reduction in sulfur content.
    EPA issued the Heavy-Duty Diesel Engine Rule in July 2000. This 
rule includes standards limiting the sulfur content of diesel fuel, 
which went into effect in 2004. A second phase took effect in 2007 
which reduced PM2.5 emissions from heavy-duty highway 
engines and further reduced the highway diesel fuel sulfur content to 
15 ppm. The total program is estimated to achieve a 90 percent 
reduction in direct PM2.5 emissions and a 95 percent 
reduction in NOX emissions for these new engines using low 
sulfur diesel, compared to existing engines using higher sulfur diesel 
fuel. The reduction in fuel sulfur content also yielded an immediate 
reduction in particulate sulfate emissions from all diesel vehicles.
    In May 2004, EPA promulgated the Nonroad Diesel Rule for large 
nonroad diesel engines, such as those used in construction, 
agriculture, and mining, to be phased in between 2008 and 2014. The 
rule also reduces the sulfur content in nonroad diesel fuel by over 99 
percent. Prior to 2006, nonroad diesel fuel averaged approximately 
3,400 ppm sulfur. This rule limited nonroad diesel sulfur content to 
500 ppm by 2006, with a further reduction to 15 ppm by 2010.
    As required by the CAA, EPA developed Maximum Available Control 
Technology (MACT) Standards to regulate emissions of toxic air 
pollutants from a published list of industrial sources referred to as 
``source categories.'' The list of MACT source categories that must 
meet control technology requirements to reduce the emission of toxic 
air pollutants with compliance dates on or after 2005, is found in the 
West Virginia's August 5, 2013 submittal on page 48, available on line 
at www.regulations.gov, Docket ID No. EPA-OAR-R03-2013-0690.
b. State and Local Measures
    EPA issued the NOX SIP Call in 1998 pursuant to the CAA 
to require 22 states and the District of Columbia to reduce 
NOX emissions from large EGUs and large non-EGUs such as 
industrial boilers, internal combustion engines, and cement kilns. See 
(63 FR 57356, October 27, 1998). EPA approved West Virginia's Phase I 
NOX SIP Call rule on May 10, 2002 (67 FR 31733) and Phase II 
rule on September 28, 2006 (71 FR 56881). Emission reductions resulting 
from regulations developed in response to the NOX SIP Call 
are permanent and enforceable.
    On March 10, 2005, EPA issued CAIR, which applies to 27 states and 
the District of Columbia. CAIR relied on 3 separate cap-and-trade 
programs to reduce SO2 and NOX emissions. On 
August 4, 2009 (74 FR 38536), EPA approved West Virginia's CAIR rules 
into the West Virginia SIP. The maintenance plan for the Area for the 
1997 annual PM2.5 NAAQS, thus, list CAIR as a control 
measure for the purpose of reducing SO2 and NOX 
emissions. On August 8, 2011 (76 FR 48208), EPA promulgated CSAPR to 
replace CAIR, which has been in place since 2005. The D.C. Circuit 
Court initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. 
Cir. 2008), but ultimately remanded the rule to EPA without vacatur to 
preserve the environmental benefits provided by CAIR, North Carolina v. 
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 21, 2012, the D.C. 
Circuit Court issued a decision to vacate CSAPR. In that decision, it 
also ordered EPA to continue administering CAIR ``pending the 
promulgation of a valid replacement.'' EME Homer City, 696 F.3d at 38. 
EPA and other parties have filed petitions for certiorari to the U.S. 
Supreme Court, and on June 24, 2013, the Supreme Court granted 
certiorari on EPA's petition for appeal of EME Homer City Generation. 
See EME Homer City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 
2012), cert. granted, 570 U.S.--(2013). Nonetheless, EPA intends to 
continue to act in accordance with the EME Homer City opinion.
    As noted earlier, EPA believes it is appropriate to allow states to 
rely on the existing emissions reductions achieved by CAIR, as 
sufficiently permanent and enforceable pending a valid replacement 
rule, for purposes such as a redesignation. CAIR was in place and thus 
getting emission reductions when the Martinsburg Area monitored 
attainment of the 1997 annual PM2.5 NAAQS. The monitoring 
data used to demonstrate the Area's attainment of the 1997 annual 
PM2.5 NAAQS was impacted by CAIR. EPA finds West Virginia 
appropriately included CAIR as a control measure in this SIP revision.
    Furthermore, the air quality modeling analysis conducted for the 
Transport Rule demonstrates that the Area would be able to attain the 
1997 annual PM2.5 NAAQS even in the absence of either CAIR 
or the Transport Rule. EPA's modeling projections show that all ambient 
monitors in the Area are expected to continue to maintain compliance in 
the 2012 and 2014 ``no CAIR'' base cases. Therefore, none of the 
ambient monitoring sites in the Area are ``receptors'' that EPA 
projects will have future nonattainment problems or difficulty 
maintaining the NAAQS.
    Based on the information summarized above, West Virginia has 
adequately demonstrated that the improvement in air quality is due to 
permanent and enforceable emissions reductions. The reductions result 
from Federal requirements, regulation of precursors under the 
NOX SIP Call, and CAIR, which are expected to continue into 
the future.

B. Maintenance Plan

    On August 5, 2013, WVDEP submitted a maintenance plan for the West 
Virginia portion of the Martinsburg Area for the 1997 annual 
PM2.5 NAAQS as required by section 175A of the CAA. EPA's 
analysis for proposing approval of the maintenance plan is provided in 
this section.
1. Attainment Emissions Inventory
    An attainment inventory is comprised of the emissions during the 
time period associated with the monitoring data showing attainment. 
WVDEP developed emissions inventories for NOX, 
PM2.5, SO2, VOC, and NH3 for 2007, one 
of the years in the period during which the Martinsburg Area monitored 
attainment of the 1997 annual PM2.5 standard, as described 
previously.
    WVDEP used the 2007 annual emissions inventory submitted to EPA's 
National Emissions Inventory (NEI) database to compile their inventory. 
There are no EGU's in Berkeley County. For the 2007 area source 
emissions, WDEP used the Southern Modeling, Analysis, and Planning 
(SEMAP) project.

[[Page 25553]]

    For the 2007 nonroad mobile sources, WVDEP generated the emissions 
using EPA's NONROAD model. The 2007 onroad mobile source inventory was 
developed using the most current version of EPA's highway mobile source 
emissions model MOVES2010a.
    EPA has reviewed the documentation provided by WVDEP and found the 
emissions inventory to be acceptable. For more information on EPA's 
analysis of the 2007 emissions inventory, see Appendix B of the State 
submittal and the emissions inventory TSD dated January 14, 2014, 
available on line at www.regulations.gov, Docket ID No. EPA-OAR-R03-
2013-0690.
2. Maintenance Demonstration
    Section 175A requires a state seeking redesignation to attainment 
to submit a SIP revision to provide for the maintenance of the NAAQS in 
the area ``for at least 10 years after the redesignation.'' EPA has 
interpreted this as a showing of maintenance ``for a period of ten 
years following redesignation.'' Where the emissions inventory method 
of showing maintenance is used, its purpose is to show that emissions 
during the maintenance period will not increase over the attainment 
year inventory. See 1992 Calcagni Memorandum, pages 9-10.
    For a demonstration of maintenance, emissions inventories are 
required to be projected to future dates to assess the influence of 
future growth and controls; however, the maintenance demonstration need 
not be based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA, 
supra. See also 66 FR 53099-53100; 68 FR 25430-32. WVDEP uses 
projection inventories to show that the Area will remain in attainment 
and developed projection inventories for an interim year of 2017 and a 
maintenance plan end year of 2025 to show that future emissions of 
NOX, SO2, VOC, NH3, and 
PM2.5 will remain at or below the attainment year 2007 
emissions levels throughout the Martinsburg Area through the year 2025.
    The projection inventories for the 2017 and 2025 point, area, and 
nonroad sources were developed by the SEMAP contractors. Detailed 
discussion of how projections were developed are contained in the 
document ``SESARM Projection Year Final Report--Rev Jan 20 2013.pdf.'' 
Onroad mobile source projection inventories for Berkeley County were 
prepared by Michael Baker Jr., Inc. and onroad mobile source emissions 
for 2017 and 2025 were calculated from emission factors from MOVES2010 
model runs. See Appendix C of the State submittal. EPA has reviewed the 
documentation provided by WVDEP and found the methodologies acceptable.
    EPA has determined that the emissions inventories that the 2017 and 
2025 projected emissions inventories provided by WVDEP are approvable. 
For more information on EPA's analysis of the emissions inventory, see 
Appendix B of the State submittal and EPA's TSD dated January 14, 2014, 
available on line at www.regulations.gov., Docket ID No. EPA-OAR-R03-
2013-0690. Table 4 provides the inventories for the 2007 attainment 
year, the 2017 interim year, and the 2025 maintenance plan end year for 
the Area.

 Table 4--Comparison of 2007 Attainment Year and 2017 and 2025 Projected Emission Estimates for the Martinsburg
                                                   Area in tpy
----------------------------------------------------------------------------------------------------------------
                                        SO2             NOX            PM2.5            NH3             VOC
----------------------------------------------------------------------------------------------------------------
2007 (attainment)...............           9,016          19,254           2,455           1,522           8,109
2017 (interim)..................           7,629          12,086           2,188           1,485           5,668
2017 (projected decrease).......           1,387           7,168             267              37           2,441
2025 (maintenance)..............           7,743          10,030           2,154           1,500           5,308
2025 (projected decrease).......           1,273           9,224             301              23           2,802
----------------------------------------------------------------------------------------------------------------

    Table 4 shows that between 2007 and 2017, the Area is projected to 
reduce SO2 emissions by 1,387 tpy, NOX emissions 
by 7,168 tpy, PM2.5 emissions by 267 tpy, NH3 by 
37 tpy, and VOC by 2,441 tpy. Between 2007 and 2025, the Area is 
projected to reduce SO2 emissions by 1,273 tpy, 
NOX emissions by 9,224 tpy, PM2.5 emissions by 
301 tpy, NH3 by 23 tpy, and VOC by 2,802 tpy. Thus, the 
projected emissions inventories show that the Area will continue to 
maintain the 1997 annual PM2.5 NAAQS during the 10 year 
maintenance period.
3. Monitoring Network
    EPA has determined that West Virginia's maintenance plan includes a 
commitment to continue to operate its EPA-approved monitoring network, 
as necessary to demonstrate ongoing compliance with the NAAQS. There 
are two PM2.5 monitors in the Martinsburg Area. One is 
located in West Virginia operated by the West Virginia Division of Air 
Quality, and the other one is located in Maryland operated by the 
Maryland Department of the Environment. In its August 5, 2013 
submittal, West Virginia stated that it will consult with EPA prior to 
making any necessary changes to the network and will continue to 
quality assure the monitoring data in accordance with the requirements 
of 40 CFR part 58.
4. Verification of Continued Attainment
    To provide for tracking of the emission levels in the Area, WVDEP 
requires major point sources to submit air emissions information 
annually and prepares a new periodic inventory for all PM2.5 
precursors every three years in accordance with EPA's Air Emissions 
Reporting Requirements (AERR). EPA has determined that WVDEP will 
continue to compare emissions information to the attainment year 
inventory to assure continued attainment with the 1997 annual 
PM2.5 NAAQS and that WVDEP will use this information to 
assess emissions trends, as necessary.
5. Contingency Measures
    The contingency plan provisions for maintenance plans are designed 
to promptly correct a violation of the NAAQS that occurs after 
redesignation. Section 175A of the CAA requires that a maintenance plan 
include such contingency measures as EPA deems necessary to ensure that 
a state will promptly correct a violation of the NAAQS that occurs 
after redesignation. The maintenance plan should identify the events 
that would ``trigger'' the adoption and implementation of a contingency 
measure(s), the contingency measure(s) that would be adopted and 
implemented, and the schedule indicating the time frame by which the 
state would adopt and implement the measure(s).
    West Virginia's maintenance plan outlines the procedures for the 
adoption and implementation of contingency measures to further reduce 
emissions should a violation occur. West Virginia's contingency 
measures include a warning level response and an action

[[Page 25554]]

level response. An initial warning level response is triggered when the 
average weighted annual mean for a single calendar year exceeds 15.5 
[mu]g/m\3\ within the maintenance area. In that case, a study will be 
conducted to determine if the emissions trends show increases; if 
action is necessary to reverse emissions increases, West Virginia will 
follow the same procedures for control selection and implementation as 
for an action level response, and implementation of necessary controls 
will take place as expeditiously as possible, but no later than 12 
months from the end of the most recent calendar year.
    The action level response will be prompted by any one of the 
following: (1) A warning level response study that shows emissions 
increases; (2) a weighted annual mean over a two-year average that 
exceeds the standard; or (3) a violation of the standard in the 
maintenance area. If an action level response is triggered, West 
Virginia will adopt and implement appropriate control measures within 
18 months from the end of the year in which monitored air quality 
triggering a response occurs. West Virginia will also consider whether 
additional regulations that are not a part of the maintenance plan can 
be implemented in a timely manner to respond to the trigger.
    West Virginia's candidate contingency measures include the 
following: (1) Diesel reduction emission strategies; (2) alternative 
fuels and diesel retrofit programs for fleet vehicle operations; (3) 
PM2.5, SO2, and NOX emissions offsets 
for new and modified major sources; (4) concrete manufacturing 
controls; and (5) additional NOX reductions. Additionally, 
West Virginia has identified a list of sources that could potentially 
be controlled. These include: Industrial, commercial and institutional 
(ICI) Boilers for SO2 and NOX controls, EGUs, 
process heaters, internal combustion engines, combustion turbines, 
other sources greater than 100 tpy, fleet vehicles, concrete 
manufacturers, and aggregate processing plants. EPA finds that the West 
Virginia maintenance plan for the Martinsburg Area includes appropriate 
contingency measures as necessary to ensure West Virginia will promptly 
correct any violation of the NAAQS that occurs after redesignation. For 
all of the reasons discussed above, EPA is proposing to approve West 
Virginia's 1997 annual PM2.5 maintenance plan for the 
Martinsburg Area as meeting the requirements of section 175A of the 
CAA.

C. Transportation Conformity

    Section 176(c) of the CAA requires Federal actions in nonattainment 
and maintenance areas to ``conform to'' the goals of SIPs. This means 
that such actions will not cause or contribute to violations of a 
NAAQS, worsen the severity of an existing violation, or delay timely 
attainment of any NAAQS or any interim milestone. Actions involving 
Federal Highway Administration (FHWA) or Federal Transit Administration 
(FTA) funding or approval are subject to the transportation conformity 
rule (40 CFR Part 93, subpart A). Under this rule, metropolitan 
planning organizations (MPOs) in nonattainment and maintenance areas 
coordinate with state air quality and transportation agencies, EPA, and 
the FHWA and FTA to demonstrate that their long range transportation 
plans and transportation improvement programs (TIP) conform to 
applicable SIPs. This is typically determined by showing that estimated 
emissions from existing and planned highway and transit systems are 
less than or equal to the MVEBs contained in the SIP.
    On August 5, 2013, West Virginia submitted a SIP revision that 
contains the 2017 and 2025 PM2.5 and NOX onroad 
mobile source budgets for the Martinsburg Area that comprises Berkeley 
County, West Virginia. West Virginia did not provide emission budgets 
for SO2, VOC, and NH3 because it concluded, 
consistent with the presumptions regarding these precursors in the 
Transportation Conformity Rule at 40 CFR 93.102(b)(2)(v), which 
predated and was not disturbed by the litigation on the 1997 
PM2.5 Implementation Rule, that emissions of these 
precursors from motor vehicles are not significant contributors to the 
Area's PM2.5 air quality problem. EPA issued conformity 
regulations to implement the 1997 annual PM2.5 NAAQS in July 
2004 and May 2005 (69 FR 40004, July 1, 2004 and 70 FR 24280, May 6, 
2005). Those actions were not part of the final rule recently remanded 
to EPA by the D.C. Circuit Court in NRDC v. EPA, No. 08-1250 (January 
4, 2013), in which the D.C. Circuit Court remanded to EPA the 1997 
PM2.5 Implementation Rule because it concluded that EPA must 
implement that NAAQS pursuant to the PM-specific implementation 
provisions of subpart 4, rather than solely under the general 
provisions of subpart 1. That decision does not affect EPA's proposed 
approval of the MVEBs for the Martinsburg Area. The MVEBs are presented 
in Table 5.

  Table 5--MVEBs for Berkeley County, West Virginia for the 1997 PM2.5
                              NAAQS in tpy
------------------------------------------------------------------------
                     Year                          PM2.5         NOX
------------------------------------------------------------------------
2017..........................................           83        2,621
2015..........................................           50        1,660
------------------------------------------------------------------------

    EPA's substantive criteria for determining adequacy of MVEBs are 
set out in 40 CFR 93.118(e)(4). Additionally, to approve the MVEBs, EPA 
must complete a thorough review of the SIP, in this case the 
PM2.5 maintenance plan, and conclude that with the projected 
level of motor vehicle and all other emissions, the SIP will achieve 
its overall purpose, in this case providing for maintenance of the 1997 
annual PM2.5 NAAQS. 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.
    On December 20, 2013, EPA initiated an adequacy review of the MVEBs 
for the 1997 annual PM2.5 NAAQS that West Virginia included 
in its redesignation request submittal. As such, a notice of the 
submission of these MVEBs were posted on the adequacy Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). The public 
comment period closed on January 21, 2014. There were no public 
comments received. EPA is acting on making the adequacy finding final 
through a separate notice of adequacy. EPA has reviewed the MVEBs and 
found them consistent with the maintenance plan and that the budgets 
meet the criteria for adequacy and approval.
    Therefore, EPA is proposing to approve the 2017 and 2025 
PM2.5 and NOX MVEBs for Berkeley County for 
transportation conformity purposes. Additional information pertaining 
to the review of the MVEBs can be found in the TSD dated January 28, 
2014, available on line at www.regulations.gov, Docket ID No. EPA-R03-
OAR-2013-0690.

VI. Proposed Actions

    EPA is proposing to approve the redesignation of the West Virginia 
portion of the Martinsburg Area from nonattainment to attainment for 
the 1997 annual PM2.5 NAAQS. EPA has evaluated West 
Virginia's redesignation request and determined that it meets the 
redesignation criteria set forth in section 107(d)(3)(E) of the CAA. 
EPA believes that the monitoring data demonstrate

[[Page 25555]]

that the Martinsburg Area has attained the 1997 annual PM2.5 
NAAQS and will continue to attain the standard. Final approval of this 
redesignation request would change the designation of the West Virginia 
portion of the Martinsburg Area from nonattainment to attainment for 
the 1997 PM2.5 annual NAAQS. EPA is also proposing to 
approve the associated maintenance plan for the Area submitted on 
August 5, 2013, as a revision to the West Virginia SIP because it meets 
the requirements of section 175A of the CAA as described previously in 
this rulemaking notice. In addition, EPA is proposing to approve the 
2007 base year emissions inventory as meeting the requirement of 
section 172(a)(3) of the CAA. Furthermore, EPA is proposing to approve 
the 2017 and 2025 PM2.5 and NOX MVEBs submitted 
by West Virginia for Berkeley County for transportation purposes. EPA 
is soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule proposing to approve West Virginia's 
redesignation request, maintenance plan, 2007 base year emissions 
inventory, and MVEBs for transportation conformity purposes for the 
West Virginia portion of the Martinsburg Area for the 1997 annual 
PM2.5 NAAQS, does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, PM2.5, Particulate matter, 
Reporting and recordkeeping requirements, Sulfur oxides.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: April 16, 2014.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2014-10212 Filed 5-2-14; 8:45 am]
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