Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Proposed Rules 59703 

significant rule and does not create an 

environmental risk to health or risk to 

safety that may disproportionately affect 

children. 

11. Indian Tribal Governments 

This proposed rule does not have 

tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it does not have 

a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

12. Energy Effects 

This proposed rule is not a 

‘‘significant energy action’’ under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. 

13. Technical Standards 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

14. Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have determined that this action is one 

of a category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This proposed rule 

involves the establishment of a safety 

zone. This proposed rule is categorically 

excluded from further review under 

paragraph 34–g of Figure 2–1 of the 

Commandant Instruction. An 

environmental analysis checklist 

supporting this determination and a 

Categorical Exclusion Determination are 

available in the docket where indicated 

under ADDRESSES. We seek any 

comments or information that may lead 

to the discovery of a significant 

environmental impact from this rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T05–0834 to read as 

follows: 

§ 165.T05–0834 Safety Zone, Chesapeake 

Bay; Cape Charles, VA. 

(a) Definitions. For the purposes of 

this section, Captain of the Port means 

the Commander, Sector Hampton Roads. 

Representative means any Coast 

Guard commissioned, warrant or petty 

officer who has been authorized to act 

on the behalf of the Captain of the Port 

(b) Location. The following area is a 

proposed safety zone: Specified waters 

of the Captain of the Port Sector 

Hampton Roads zone, as defined in 33 

CFR 3.25–10, in the Chesapeake Bay in 

the vicinity of Bayshore Road in the 

Cape Charles Bay, Cape Charles, VA all 

waters within a 700 foot radius of 37°– 

15′–47′′ N/076°–01′–29′′ W (NAD 1983). 

(c) Regulations. 

(1) In accordance with the general 

regulations in 165.23 of this part, entry 

into this zone is prohibited unless 

authorized by the Captain of the Port, 

Hampton Roads or his designated 

representatives. 

(2) The operator of any vessel in the 

immediate vicinity of this safety zone 

shall: 

(i) Contact on scene contracting 

vessels via VHF channel 13 and 16 for 

passage instructions. 

(ii) If on scene proceed as directed by 

any commissioned, warrant or petty 

officer on shore or on board a vessel that 

is displaying a U.S. Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads can be reached through the Sector 

Duty Officer at Sector Hampton Roads 

in Portsmouth, Virginia at telephone 

number (757) 668–5555. 

(4) The Coast Guard Representatives 

enforcing the safety zone can be 

contacted on VHF–FM marine band 

radio channel 13 (165.65Mhz) and 

channel 16 (156.8 Mhz). 

(d) Enforcement Period: This section 

will be enforced from 10 p.m. until 

10:30 p.m. on December 31, 2014. 

Dated: September 16, 2014. 

Christopher S. Keane, 

Captain, U.S. Coast Guard, Captain of the 

Port Hampton Roads. 

[FR Doc. 2014–23650 Filed 10–2–14; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R03–OAR–2014–0387; FRL–9917–40– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Redesignation Request and 

Associated Maintenance Plan for the 

Baltimore, Maryland Nonattainment 

Area for the 1997 Annual Fine 

Particulate Matter Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

the State of Maryland’s request to 

redesignate to attainment the Baltimore, 

Maryland Nonattainment Area 

(Baltimore Area or Area) for the 1997 

annual fine particulate matter (PM2.5) 

national ambient air quality standard 

(NAAQS). The EPA has determined that 

the Baltimore Area attained the standard 

and is proposing to determine that it 

continues to attain the standard. In 

addition, EPA is proposing to approve, 

as a revision to the Maryland State 

Implementation Plan (SIP), the 

Baltimore Area 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 the Baltimore Area 

for the 1997 annual PM2.5 NAAQS, 

which EPA is proposing to approve for 

transportation conformity purposes. 

These actions are being taken under the 

Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before November 3, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2014–0387 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2014–0387, 

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 previouslylisted 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. 


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Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2014– 

0387. 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 Maryland Department of 

the Environment, Air and Radiation 

Management Administration, 1800 

Washington Boulevard, Baltimore, 

Maryland 21230. 

FOR FURTHER INFORMATION CONTACT: 

Marilyn Powers, at (215) 814–2308, or 

by email at powers.marilyn@epa.gov. 

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 Supreme Court and D.C. 

Circuit Court’s Decisions on 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 Maryland’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 (mg/m3), 

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 mg/m3 based on a threeyear 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 Baltimore Area as 

nonattainment for the 1997 annual 

PM2.5 NAAQS. The Baltimore Area is 

comprised of the City of Baltimore, and 

Anne Arundel, Baltimore, Carroll, 

Harford, Howard, and Queen Anne 

Counties. See 40 CFR 81.321. 

On October 17, 2006 (71 FR 61144), 

EPA retained the annual average 

standard at 15 mg/m3 but revised the 24- 

hour standard to 35 mg/m3, based again 

on the three-year average of the 98th 

percentile of the 24-hour concentrations 

(the 2006 24-hour 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 

Baltimore Area as attainment for the 

2006 24-hour PM2.5 NAAQS. See 74 FR 

58737 and 40 CFR 81.321. Since the 

Baltimore 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 May 22, 2012 (77 FR 30208), EPA 

determined that the Baltimore Area had 

attained the 1997 annual PM2.5 NAAQS, 

and that the Area attained the NAAQS 

by the statutory attainment date of April 

5, 2010. Pursuant to 40 CFR 51.1004(c) 

and based on the determination of 

attainment, the requirements for the 

Baltimore 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 December 12, 2013, the State of 

Maryland, through the Maryland 

Department of the Environment (MDE), 

formally submitted a request to 

redesignate the Baltimore Area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. 

Concurrently, MDE submitted a 

maintenance plan for the Area as a SIP 

revision to ensure continued attainment 

throughout the Area over the next 10 

years. The maintenance plan includes 

the 2017 and 2025 PM2.5 and NOX

MVEBs used for transportation 

conformity purposes for the Baltimore 

Area for the 1997 annual PM2.5 NAAQS. 

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 pollution 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 (EPA’s Analysis 


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of Maryland’s SIP Submittal) of this 

proposed rulemaking action. 

EPA has provided guidance on 

redesignation in the ‘‘State 

Implementation Plans; 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 EPA approves the 

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, an MVEB for an 

area seeking a redesignation to 

attainment is established for the last 

year of the maintenance plan. 

The maintenance plan for the 

Baltimore Area includes 2017 and 2025 

PM2.5 and NOX MVEBs for 

transportation conformity purposes. The 

transportation conformity determination 

for the Area is further discussed in 

subsection C of section V 

(Transportation Conformity) of this 

proposed rulemaking action and in a 

technical support document (TSD) 

dated May 20, 2014, which is available 

in the docket for this proposed 

rulemaking action. 

III. Summary of Proposed Actions 

EPA is proposing to take several 

rulemaking actions related to the 

redesignation of the Baltimore Area to 

attainment for the 1997 annual PM2.5

NAAQS. EPA is proposing to find that 

the Baltimore Area meets the 

requirements for redesignation for the 

1997 annual PM2.5 NAAQS under 

section 107(d)(3)(E) of the CAA. EPA is 

proposing to approve the maintenance 

plan for the Baltimore Area as a revision 

to the Maryland SIP for the 1997 annual 

PM2.5 NAAQS. 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. The Baltimore Area 

maintenance plan is designed to ensure 

continued attainment in the Area for 10 

years after redesignation. EPA is also 

proposing to approve the MVEBs for 

PM2.5 and NOX emissions for the 1997 

annual PM2.5 standard. In this 

rulemaking action, EPA is proposing to 

find that the Area continues to attain the 

standard. 

EPA previously determined that the 

Baltimore Area had attained the 1997 

annual PM2.5 NAAQS and that it had 

done so by its applicable attainment 

date. See 77 FR 30208, May 22, 2012. In 

this rulemaking action, EPA is 

proposing to find that the Area 

continues to attain the standard. EPA is, 

therefore, proposing to approve MDE’s 

request to change the designation for the 

Baltimore Area from nonattainment to 

attainment for the 1997 annual PM2.5

NAAQS. 

IV. Effects of Recent Court Decisions on 

Proposed Actions 

In this proposed rulemaking action, 

EPA considers the effects of three legal 

decisions on this redesignation. EPA 

first considers the effects of the D.C. 

Circuit Court and U.S. Supreme Court’s 

decisions in EME Homer City 

Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 

Cir. 2012), rev’d, No. 12–1182 (S. Ct. 

April 29, 2014). The Supreme Court 

reversed the D.C. Circuit Court decision 

vacating and remanding the Cross-State 

Air Pollution Rule (CSAPR). EPA is also 

considering the effect of the January 4, 

2013 D.C. Circuit decision remanding to 

EPA the ‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

(PM2.5)’’ final rule (73 FR 28321, May 

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’). Natural 

Resources Defense Council (NRDC) v. 

EPA, 706 F.3d 428 (D.C. Cir. 2013). 

A. Effect of the Supreme Court and D.C. 

Circuit Court’s Decisions Regarding 

EPA’s CSAPR 

EPA has considered the recent 

decisions from the U.S. Supreme Court 

and the D.C. Circuit Court regarding 

EPA’s CSAPR, and has concluded that 

the decisions do not affect the Agency’s 

proposal to redesignate the Baltimore 

Area from nonattainment to attainment 

for the 1997 annual PM2.5 NAAQS. EPA 

promulgated CSAPR (76 FR 48208, 

August 8, 2011) to replace the Clean Air 

Interstate Rule (CAIR), which has been 

in place since 2005. See 76 FR 59517. 

Both CSAPR and CAIR require 

significant reductions in emissions of 

sulfur dioxide (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. 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). After 

staying the implementation of CSAPR 

on December 20, 2011 and instructing 

EPA to continue to implement CAIR in 


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1As defined in 40 CFR part 50, Appendix N, 

section (1)(c). A monitoring site’s design value is 

compared to the level of the 1997 annual PM2.5

NAAQS to determine compliance with the 

standard. 

the interim, on August 21, 2012, the 

D.C. Circuit Court issued a decision to 

vacate CSAPR, with further instruction 

to continue administering CAIR 

‘‘pending the promulgation of a valid 

replacement.’’ EME Homer City 

Generation L.P. v. EPA, 696 F.3d 7, 38 

(D.C. Cir. 2012). On April 29, 2014, the 

Supreme Court reversed the opinion of 

the D.C. Circuit Court and remanded the 

matter to the D.C. Circuit Court for 

further proceedings. EPA v. EME Homer 

City Generation, L.P., No. 12–1182 (S. 

Ct. April 29, 2014). 

In its submission, MDE does not rely 

on either CAIR or CSAPR for emission 

reductions that contributed to the 

Baltimore Area’s attainment of the 1997 

annual PM2.5 NAAQS, nor does the 

State rely on either of the rules to show 

maintenance of the standard in the Area 

for 10 years following redesignation. 

However, because CAIR was 

promulgated in 2005 and incentivized 

sources and states to begin achieving 

early emission reductions, the air 

quality data examined by EPA in issuing 

a final determination of attainment for 

the Baltimore Area in 2009 (November 

20, 2009, 74 FR 60119) and the air 

quality data from the Area since 2005 

necessarily reflect reductions in 

emissions from upwind sources as a 

result of CAIR. Nonetheless, in this case 

EPA believes that it is appropriate to 

redesignate the Area. Modeling 

conducted by EPA during the CSAPR 

rulemaking process, which used a 

baseline emissions scenario that 

‘‘backed out’’ the effects of CAIR, see 76 

FR at 48223, projected that the counties 

in the Baltimore Area would have PM2.5

annual design values 1 below the level 

of the 1997 annual PM2.5 standard for 

2012 and 2014 without taking into 

account emission reductions from CAIR 

or CSAPR. See Appendix B of EPA’s 

‘‘Air Quality Modeling Final Rule 

Technical Support Document,’’ (Page B– 

45, B–46), which is available in the 

docket for this proposed rulemaking 

action. In addition, the 2010–2012 

quality-assured, quality-controlled, and 

certified monitoring data for the 

Baltimore Area confirms that 2012 PM2.5

annual design values for each 

monitoring site in the Area remained 

well below the 1997 annual PM2.5

NAAQS, and, thus, the entire Area 

continued to attain the standard in 

2012. See Table 1 of this proposed 

rulemaking action for the Baltimore 

Area’s monitoring data for 2010–2012. 

The status of CSAPR is not relevant to 

this redesignation. CSAPR was 

promulgated in June 2011, and the rule 

was stayed by the D.C. Circuit Court just 

six months later, before the trading 

programs it created were scheduled to 

go into effect. Therefore, the Baltimore 

Area’s attainment of the 1997 annual 

PM2.5 standard cannot have been a 

result of any emission reductions 

associated with CSAPR. In sum, neither 

the current status of CAIR nor the 

current status of CSAPR affects any of 

the criteria for proposed approval of this 

redesignation request for the Area. 

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 Natural 

Resources Defense Council v. EPA, the 

D.C. Circuit Court remanded to EPA the 

‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

(PM2.5)’’ final rule (73 FR 28321, May 

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’). 706 F.3d 428 

(D.C. Cir. 2013). The D.C. Circuit Court 

found that EPA erred in implementing 

the 1997 PM2.5 NAAQS pursuant to the 

general implementation provisions of 

subpart 1 of Part D of Title I of the CAA 

(subpart 1), rather than the particulatematter-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 annual 

PM2.5 NAAQS in accordance with EPA 

regulations and guidance derived from 

subpart 1. Subsequent to this decision, 

in rulemaking that responds to the D.C. 

Circuit Court’s remand, EPA took this 

history into account by proposing to set 

a new deadline for any remaining 

submissions that may be required for 

moderate nonattainment areas as a 

result of the Court’s decision regarding 

subpart 4. 

On June 2, 2014 (79 FR 31566) EPA 

finalized the ‘‘Identification of 

Nonattainment Classification and 

Deadlines for Submission of SIP 

Provisions for the 1997 PM2.5 NAAQS 

and 2006 PM2.5 NAAQS’’ rule (the PM2.5

Subpart 4 Classification and Deadline 

Rule). The rule identifies the 

classification under subpart 4 for areas 

currently designated nonattainment for 

the 1997 annual and/or 2006 24-hour 

PM2.5 standards, and sets a new 

deadline for states to submit attainmentrelated and other SIP elements required 

for these areas pursuant to subpart 4. 

The rule also identifies EPA guidance 

that is currently available regarding 

subpart 4 requirements. The PM2.5

Subpart 4 Classification and Deadline 

Rule specifies December 31, 2014 as the 

deadline for the states to submit any 

additional attainment-related SIPelements that may be needed to meet 

the applicable requirements of subpart 4 

for areas currently designated 

nonattainment for the 1997 annual and/ 

or 2006 24-hour PM2.5 NAAQS and to 

submit SIPs addressing the 

nonattainment NSR requirements in 

subpart 4. Therefore, as explained in 

detail in the following section, any 

additional attainment-related SIP 

elements that may be needed for the 

Baltimore Area to meet the applicable 

requirements of subpart 4 were not due 

at the time that Maryland submitted its 

redesignation request for the Area. 

Maryland submitted its request for 

redesignating the Baltimore Area for the 

1997 annual PM2.5 NAAQS on 

December 12, 2013. 

2. Proposal on This Issue 

In this proposed rulemaking action, 

EPA addresses the effect of the D.C. 

Circuit Court’s January 4, 2013 ruling 

and the proposed PM2.5 Subpart 4 

Nonattainment Classification and 

Deadline Rule on the redesignation 

request for the Baltimore Area. EPA is 

proposing to determine that the D.C. 

Circuit Court’s January 4, 2013 decision 

does not prevent EPA from 

redesignating the Baltimore Area to 

attainment. Even in light of the D.C. 

Circuit Court’s decision, redesignation 

for the Baltimore Area is appropriate 

under the CAA and EPA’s longstanding 

interpretations of the CAA 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 redesignation request for the 

Baltimore Area and disregards the 

provisions of its 1997 annual PM2.5

implementation rule remanded by the 

D.C. Circuit Court, the State’s request for 

redesignation of the Baltimore Area still 

qualifies for approval. EPA’s discussion 

takes into account the effect of the D.C. 

Circuit Court’s ruling and the proposed 

PM2.5 Subpart 4 Classification and 

Deadline Rule on the Baltimore Area 

maintenance plan, which EPA views as 


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2Applicable 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. 

approvable when subpart 4 

requirements are considered. 

a. Applicable Requirements Under 

Subpart 4 for Purposes of Evaluating the 

Redesignation Request for the Baltimore 

Area 

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, in addition to subpart 1. For 

the purposes of evaluating the 

redesignation request for the Baltimore 

Area, to the extent that implementation 

under subpart 4 would impose 

additional requirements for areas 

designated nonattainment, EPA believes 

that those requirements are not 

‘‘applicable’’ for the purposes of CAA 

section 107(d)(3)(E), and thus EPA is not 

required to consider subpart 4 

requirements with respect to the 

redesignation of the Baltimore 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 ‘‘State 

Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) on or after 

November 15, 1992,’’ Memorandum 

from Michael Shapiro, Acting Assistant 

Administrator, Air and Radiation, 

September 17, 1993 (Shapiro 

memorandum); Final Redesignation of 

Detroit-Ann Arbor, (60 FR 12459, 

12465–66, March 7, 1995); Final 

Redesignation of St. Louis, Missouri, (68 

FR 25418, 25424–27, May 12, 2003); 

Sierra Club v. EPA, 375 F.3d 537, 541 

(7th Cir. 2004) (upholding EPA’s 

redesignation rulemaking applying this 

interpretation and expressly rejecting 

Sierra Club’s view that the meaning of 

‘‘applicable’’ under the statute is 

‘‘whatever should have been in the plan 

at the time of attainment rather than 

whatever actually was in the plan and 

already implemented or due at the time 

of attainment’’).2 In this case, at the time 

that the State submitted its 

redesignation request, the requirements 

under subpart 4 were not due. 

EPA’s view that, for purposes of 

evaluating the redesignation of the 

Baltimore Area, the subpart 4 

requirements were not due at the time 

Maryland submitted the redesignation 

request is in keeping with the EPA’s 

interpretation of subpart 2 requirements 

for subpart 1 ozone areas redesignated 

subsequent to the D.C. Circuit Court’s 

decision in South Coast Air Quality 

Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. 

Cir. 2006). In South Coast, the D.C. 

Circuit Court found that EPA was not 

permitted to implement the 1997 8-hour 

ozone standard solely under subpart 1, 

and held that EPA was required under 

the statute to implement the standard 

under the ozone-specific requirements 

of subpart 2 as well. Subsequent to the 

South Coast decision, in evaluating and 

acting upon redesignation requests for 

the 1997 8-hour ozone standard that 

were submitted to EPA for areas under 

subpart 1, EPA applied its longstanding 

interpretation of the CAA that 

‘‘applicable requirements,’’ for purposes 

of evaluating a redesignation, are those 

that had been due at the time the 

redesignation request was submitted. 

See, e.g., Proposed Redesignation of 

Manitowoc County and Door County 

Nonattainment Areas (75 FR 22047, 

22050, April 27, 2010). In those actions, 

EPA, therefore, did not consider subpart 

2 requirements to be ‘‘applicable’’ for 

the purposes of evaluating whether the 

area should be redesignated under 

section 107(d)(3)(E). 

EPA’s interpretation derives from the 

provisions of section 107(d)(3). Section 

107(d)(3)(E)(v) states that, for an area to 

be redesignated, a state must meet ‘‘all 

requirements ‘applicable’ to the area 

under section 110 and part D.’’ Section 

107(d)(3)(E)(ii) provides that the EPA 

must have fully approved the 

‘‘applicable’’ SIP for the area seeking 

redesignation. These two sections read 

together support EPA’s interpretation of 

‘‘applicable’’ as only those requirements 

that came due prior to submission of a 

complete redesignation request. First, 

holding states to an ongoing obligation 

to adopt new CAA requirements that 

arose after the state submitted its 

redesignation request, in order to be 

redesignated, would make it 

problematic or impossible for EPA to act 

on redesignation requests in accordance 

with the 18-month deadline Congress 

set for EPA action in section 

107(d)(3)(D). If ‘‘applicable 

requirements’’ were interpreted to be a 

continuing flow of requirements with no 

reasonable limitation, states, after 

submitting a redesignation request, 

would be forced continuously to make 

additional SIP submissions that in turn 

would require EPA to undertake further 

notice-and-comment rulemaking actions 

to act on those submissions. This would 

create a regime of unceasing rulemaking 

that would delay action on the 

redesignation request beyond the 18- 

month timeframe provided by the CAA 

for this purpose. 

Second, a fundamental premise for 

redesignating a nonattainment area to 

attainment is that the area has attained 

the relevant NAAQS due to emission 

reductions from existing controls. Thus, 

an area for which a redesignation 

request has been submitted would have 

already attained the NAAQS as a result 

of satisfying statutory requirements that 

came due prior to the submission of the 

request. Absent a showing that 

unadopted and unimplemented 

requirements are necessary for future 

maintenance, it is reasonable to view 

the requirements applicable for 

purposes of evaluating the redesignation 

request as including only those SIP 

requirements that have already come 

due. These are the requirements that led 

to attainment of the NAAQS. To require, 

for redesignation approval, that a state 

also satisfy additional SIP requirements 

coming due after the state submits its 

complete redesignation request, and 

while EPA is reviewing it, would 

compel the state to do more than is 

necessary to attain the NAAQS, without 

a showing that the additional 

requirements are necessary for 

maintenance. 

In the context of this redesignation, 

the timing and nature of the D.C. Circuit 

Court’s January 4, 2013 decision in 

NRDC v. EPA and EPA’s PM2.5 Subpart 

4 Nonattainment Classification and 

Deadline Rule compound the 

consequences of imposing requirements 

that come due after the redesignation 

request is submitted. Maryland 

submitted its redesignation request for 

the 1997 annual PM2.5 NAAQS on 

December 12, 2013, which is prior to the 

deadline by which the Baltimore Area is 

required to meet the applicable 

requirements pursuant to subpart 4. 

To require Maryland’s fullycompleted 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 


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3Sierra 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). 

4PM10 refers to particulates nominally 10 

micrometers in diameter or smaller. 

5The potential effect of section 189(e) on section 

189(a)(1)(A) for purposes of evaluating this 

redesignation request is discussed in this 

rulemaking action. 

6 i.e., attainment demonstration, RFP, RACM, 

milestone requirements, contingency measures. 

such requirements and provide the State 

a unique and earlier deadline for 

compliance solely on the basis of 

submitting its redesignation request for 

the Baltimore 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),3 where it upheld the D.C. Circuit 

Court’s ruling refusing to make 

retroactive EPA’s determination that the 

St. Louis area did not meet its 

attainment deadline. In that case, 

petitioners urged the D.C. Circuit Court 

to make EPA’s nonattainment 

determination effective as of the date 

that the statute required, rather than the 

later date on which EPA actually made 

the determination. The D.C. Circuit 

Court rejected this view, stating that 

applying it ‘‘would likely impose large 

costs on States, which would face fines 

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 States by 

rejecting their redesignation request for 

an area that is already attaining the 1997 

annual PM2.5 standard 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 the States did not 

expressly address subpart 4 

requirements which have not yet come 

due, would inflict the same unfairness 

condemned by the D.C. Circuit Court in 

Sierra Club v. Whitman. 

b. Subpart 4 Requirements and 

Maryland 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 standard, subpart 4 

requirements were due and in effect at 

the time Maryland submitted its 

redesignation request, EPA proposes to 

determine that the Baltimore Area still 

qualifies for redesignation to attainment 

for the 1997 annual PM2.5 standard. As 

explained subsequently, EPA believes 

that the redesignation request for the 

Baltimore Area, though not expressed in 

terms of subpart 4 requirements, 

substantively meets the requirements of 

that subpart for purposes of 

redesignating the Area to attainment. 

With respect to evaluating the 

relevant substantive requirements of 

subpart 4 for purposes of redesignating 

the Baltimore Area, EPA notes that 

subpart 4 incorporates components of 

subpart 1, 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) 4 nonattainment areas, 

and under the D.C. Circuit Court’s 

January 4, 2013 decision in NRDC v. 

EPA, these same statutory requirements 

also apply for PM2.5 nonattainment 

areas. EPA has longstanding general 

guidance that interprets the 1990 

amendments to the CAA, making 

recommendations to states for meeting 

the statutory requirements for SIPs for 

nonattainment areas. See 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. 

For the purposes of this redesignation 

request, in order to identify any 

additional requirements which would 

apply under subpart 4, consistent with 

EPA’s June 2, 2014 PM2.5 Subpart 4 

Nonattainment Classification and 

Deadline Rule, EPA is considering the 

Baltimore Area to be a ‘‘moderate’’ PM2.5

nonattainment area. As EPA explained 

in its June 2, 2014 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 will 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 

1.5 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 New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ See also 

rulemakings for Detroit, Michigan (60 

FR 12467–12468, March 7, 1995); 

Cleveland-Akron-Lorain, Ohio (61 FR 

20458, 20469–20470, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

October 23, 2001); and Grand Rapids, 

Michigan (61 FR 31834–31837, June 21, 

1996). 

With respect to the specific 

attainment planning requirements under 

subpart 4,6 when EPA evaluates a 

redesignation request under either 

subpart 1 or 4, any area that is attaining 

the PM2.5 standards 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.’’ 

The General Preamble also explained 

that: ‘‘The section 172(c)(9) 

requirements are directed at ensuring 

RFP and attainment by the applicable 


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7As EPA has explained previously, 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. 

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 7 or 

prior to December 31, 2014 and, thus, 

were due prior to the State’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). 

Moreover, even outside the context of 

redesignations, EPA has viewed the 

obligations to submit attainment-related 

SIP planning requirements of subpart 4 

as inapplicable for areas that EPA 

determines are attaining the 1997 

annual PM2.5 standard. EPA’s prior 

‘‘Clean Data Policy’’ rulemakings for the 

PM10 NAAQS, also governed by the 

requirements of subpart 4, explain 

EPA’s reasoning. They describe the 

effects of a determination of attainment 

on the attainment-related SIP planning 

requirements of subpart 4. See 

‘‘Determination of Attainment for Coso 

Junction Nonattainment Area,’’ (75 FR 

27944, May 19, 2010). See also Coso 

Junction Proposed PM10 Redesignation, 

(75 FR 36023, 36027, June 24, 2010); 

Proposed and Final Determinations of 

Attainment for San Joaquin 

Nonattainment Area (71 FR 40952, 

40954–55, July 19, 2006 and 71 FR 

63641, 63643–47, October 30, 2006). In 

short, EPA in this context has also long 

concluded that to require states to meet 

superfluous SIP planning requirements 

is not necessary and not required by the 

CAA, so long as those areas continue to 

attain the relevant NAAQS. 

Elsewhere in this notice, EPA 

proposes to determine that the 

Baltimore Area has attained and 

continues to attain the 1997 annual 

PM2.5 NAAQS. Under its longstanding 

interpretation, EPA is proposing to 

determine here that the Baltimore Area 

meets the attainment-related plan 

requirements of subparts 1 and 4 for the 

1997 annual PM2.5 NAAQS. Thus, EPA 

is proposing to conclude that the 

requirements to submit an attainment 

demonstration under 189(a)(1)(B), a 

RACM determination under section 

172(c)(1) and section 189(a)(1)(c), a RFP 

demonstration under 189(c)(1), and 

contingency measure requirements 

under section 172(c)(9) are satisfied for 

purposes of evaluating 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 ammonia] as . . . PM2.5 attainment 

plan precursor[s] and to evaluate 

sources of VOC [and ammonia] 

emissions in the State for control 

measures.’’ EPA intended these to be 

rebuttable presumptions. EPA 

established these presumptions at the 

time because of uncertainties regarding 

the emission inventories for these 

pollutants and the effectiveness of 

specific control measures in various 

regions of the country in reducing PM2.5

concentrations. EPA also left open the 

possibility for such regulation of VOC 

and ammonia in specific areas where 

that was necessary. 

The 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 volatile organic 

compounds and ammonia are not PM2.5

precursors, as subpart 4 expressly 

governs precursor presumptions.’’ 

NRDC v. EPA, at 27, n.10. Elsewhere in 

the D.C. Circuit Court’s opinion, 

however, the D.C. Circuit Court 

observed: ‘‘Ammonia is a precursor to 

fine particulate matter, making it a 

precursor to both PM2.5 and PM10. For 

a PM10 nonattainment area governed by 

subpart 4, a precursor is presumptively 

regulated. See 42 U.S.C. 7513a(e) 

[section 189(e)].’’ Id. at 21, n.7. 

For a number of reasons, EPA believes 

that its proposed redesignation of the 

Baltimore Area for the 1997 annual 

PM2.5 NAAQS is consistent with the 

D.C. Circuit Court’s decision on this 

aspect of subpart 4. 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 ammonia 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 ammonia 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 Baltimore Area, EPA believes 

that doing so is consistent with 

proposing redesignation of the Area for 

the 1997 annual PM2.5 standard. The 

Baltimore Area has attained the 1997 

annual PM2.5 standard without any 

specific additional controls of VOC and 


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8Under 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. 

9The Baltimore Area has reduced VOC emissions 

through the implementation of various control 

programs including VOC Reasonably Available 

Control Technology (RACT) regulations and various 

onroad and nonroad motor vehicle control 

programs. 

10See, 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 ammonia 

emissions). 11See, e.g., Assoc. of Irritated Residents v. EPA 

et al., 423 F.3d 989 (9th Cir. 2005). 

ammonia emissions from any sources in 

the Area. 

Precursors in subpart 4 are 

specifically regulated under the 

provisions of section 189(e), which 

requires, with important exceptions, 

control requirements for major 

stationary sources of PM10 precursors.8

Under subpart 1 and EPA’s prior 

implementation rule, all major 

stationary sources of PM2.5 precursors 

were subject to regulation, with the 

exception of ammonia and VOC. Thus, 

EPA must address here whether 

additional controls of ammonia and 

VOC from major stationary sources are 

required under section 189(e) of subpart 

4 in order to redesignate the Baltimore 

Area for the 1997 annual PM2.5 NAAQS. 

As explained subsequently, EPA does 

not believe that any additional controls 

of ammonia and VOC are required in the 

context of this redesignation. 

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 Maryland’s SIP has met 

the provisions of section 189(e) with 

respect to ammonia and VOC as 

precursors. This proposed 

determination is based on our findings 

that: (1) The Baltimore Area contains no 

major stationary sources of ammonia; 

and (2) existing major stationary sources 

of VOC are adequately controlled under 

other provisions of the CAA regulating 

the ozone NAAQS.9 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 Baltimore Area, 

which is attaining the 1997 annual 

PM2.5 standard, at present ammonia and 

VOC precursors from major stationary 

sources do not contribute significantly 

to levels exceeding the 1997 annual 

PM2.5 standard in the Area. See 57 FR 

13539–42. 

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 for the 1997 annual PM2.5

NAAQS. By contrast, redesignation to 

attainment primarily requires the 

nonattainment area to have already 

attained due to permanent and 

enforceable emission reductions, and to 

demonstrate that controls in place can 

continue to maintain the standard. 

Thus, even if we regard the D.C. Circuit 

Court’s January 4, 2013 decision as 

calling for ‘‘presumptive regulation’’ of 

ammonia and VOC for PM2.5 under the 

attainment planning provisions of 

subpart 4, those provisions in and of 

themselves do not require additional 

controls of these precursors for an area 

that already qualifies for redesignation. 

Nor does EPA believe that requiring the 

State 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.10 Courts have upheld this 

approach to the requirements of subpart 

4 for PM10.11 EPA believes that 

application of this approach to PM2.5

precursors under subpart 4 is 

reasonable. Because the Baltimore 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 

the State’s request for redesignation of 

the Baltimore Area for the 1997 annual 

PM2.5 NAAQS. In the context of a 

redesignation, the State has shown that 

the Baltimore Area has attained the 

standard. Moreover, the State has shown 

and EPA is proposing to determine that 

attainment of the 1997 annual PM2.5

NAAQS in the Baltimore Area is due to 

permanent and enforceable emissions 

reductions on all precursors necessary 

to provide for continued attainment of 

the standard (see section V.A.3 of this 

rulemaking notice). 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 

Baltimore Area to attainment for the 

1997 annual PM2.5 NAAQS at this time. 

In summary, even if, prior to the date of 

the redesignation request submittal, the 

State was required to address precursors 

for the Baltimore 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 Baltimore Area 

had met all applicable requirements for 

purposes of redesignation in accordance 

with section 107(d)(3(E)(ii) and (v). 

V. EPA’s Analysis of Maryland’s SIP 

Submittal 

EPA is proposing several rulemaking 

actions for the Baltimore Area: (1) To 

redesignate the Area to attainment for 

the 1997 annual PM2.5 NAAQS; (2) to 

approve into the Maryland SIP the 

associated maintenance plan for the 

1997 annual PM2.5 NAAQS; and, (3) to 

approve the 2017 and 2025 PM2.5 and 

NOX MVEBs for the Baltimore Area for 

transportation conformity purposes. 

EPA’s proposed approval of the 

redesignation request and maintenance 

plan for the 1997 annual PM2.5 NAAQS 

is based upon EPA’s determination that 

the Area continues to attain the 1997 

annual PM2.5 NAAQS, and that all other 

redesignation criteria have been met for 

the Baltimore Area. The following is a 

description of how the December 12, 

2013 Maryland 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 

EPA has previously determined that 

the Baltimore Area has attained the 

1997 annual PM2.5 NAAQS. As noted 

earlier, on May 22, 2012 (77 FR 30208), 

EPA determined that the Baltimore Area 


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had attained the 1997 annual PM2.5

standard, based on 2007–2009 and 

2008–2010 quality-assured, qualitycontrolled, and certified ambient air 

quality monitoring data. Pursuant to 40 

CFR 51.2004(c), this ‘‘clean data’’ 

determination for the Area suspended 

the requirements for the State to submit 

an attainment demonstration and 

associated RACM, a RFP plan, 

contingency measures, and other 

planning SIPs related to the attainment 

of the 1997 annual PM2.5 NAAQS until 

the Area is redesignated to attainment 

for the standard or EPA determines that 

the Area has again violated the 

standard, at which time such plans are 

required to be submitted. EPA also 

determined in the May 22, 2012 

rulemaking, that the Baltimore Area had 

attained the 1997 annual PM2.5 NAAQS 

by its statutory attainment date of April 

5, 2010. The basis and effect of the 

determination of attainment for the 1997 

annual PM2.5 NAAQS was discussed in 

the proposed (76 FR 72374, November 

23, 2011) and final rulemaking notice 

(77 FR 30208, May 22, 2012). 

Maryland’s redesignation request 

submittal included the historic 

monitoring data for the annual PM2.5

monitoring sites in the Baltimore Area. 

The historic monitoring data shows that 

the Baltimore Area has attained and 

continues to attain the 1997 annual 

PM2.5 NAAQS. MDE assures that all 

PM2.5 monitoring data for the Baltimore 

Area has been quality-assured, qualitycontrolled, and certified by the State in 

accordance with 40 CFR 58.10. 

Furthermore, EPA has thoroughly 

reviewed the most recent ambient air 

quality monitoring data for PM2.5 in the 

Area, as submitted by the State and 

recorded in EPA’s Air Quality System 

(AQS). The PM2.5 quality-assured, 

quality-controlled, and state-certified 

2009–2012 air quality data shows that 

the Baltimore Area continues to attain 

the 1997 annual PM2.5 NAAQS. The 

Area’s PM2.5 annual design values for 

the 2009–2011, and 2010–2012 

monitoring periods as well as 

preliminary data for 2013 are provided 

in Table 1. 

TABLE 1—DESIGN VALUES IN THE BALTIMORE AREA FOR THE 1997 ANNUAL PM2.5 NAAQS 

Monitor ID Monitor location 

Annual design value (in μg/m3) 

2009–2011 2010–2012 2011–2013 

24–003–1003 .......................... Glen Burnie, Anne Arundel County ........................................ 10.9 10.7 10.0 

24–005–1007 .......................... Padonia, Baltimore County .................................................... 10.1 9.6 9.0 

24–005–3001 .......................... Essex, Baltimore County ........................................................ 11.1 11.0 10.3 

24–025–1001 .......................... Edgewood, Harford County .................................................... 9.8 10.3 10.3 

24–510–0006 .......................... Baltimore City ......................................................................... 10.0 10.0 9.9 

24–510–0007 .......................... Baltimore City ......................................................................... 10.2 9.9 9.3 

24–510–0008 .......................... Baltimore City ......................................................................... 10.9 10.4 9.9 

24–510–0040 .......................... Baltimore City ......................................................................... 11.3 11.1 10.5 

The Baltimore Area’s recent 

monitoring data supports EPA’s 

previous determinations that the Area 

has attained the 1997 annual PM2.5

NAAQS. In addition, as discussed 

subsequently with respect to the 

Baltimore Area’s maintenance plan, the 

State has committed to continue 

monitoring ambient PM2.5

concentrations in accordance with 40 

CFR part 58. Thus, EPA is proposing to 

determine that the Baltimore Area 

continues to attain the 1997 annual 

PM2.5 NAAQS. 

2. The State 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 Baltimore Area must be 

fully approved under section 110(k) of 

the CAA and all the requirements 

applicable to the Baltimore 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, section 110(a)(2)(D) of the 

CAA 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 which are not connected with 

nonattainment plan submissions and 

not linked with an area’s attainment 


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status are not applicable requirements 

for purposes of redesignation. The 

Baltimore 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 to the 

area’s nonattainment status are not 

applicable for purposes of 

redesignation. This approach is 

consistent with EPA’s existing policy on 

applicability of conformity (i.e., for 

redesignations) and oxygenated fuels 

requirement. See Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174, October 10, 

1996), (62 FR 24826, May 7, 1997); 

Cleveland-Akron-Lorain, Ohio final 

rulemaking (61 FR 20458, May 7, 1996); 

and Tampa, Florida final rulemaking (60 

FR 62748, December 7, 1995). See also 

the discussion on this issue in the 

Cincinnati, Ohio redesignation (65 FR 

37890, June 19, 2000) and in the 

Pittsburgh, Pennsylvania redesignation 

(66 FR 53099, October 19, 2001). 

EPA has reviewed the Maryland 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 Maryland’s SIP 

addressing section 110(a)(2) 

requirements, including provisions 

addressing PM2.5. See 76 FR 72624, 

November 25, 2011. These requirements 

are, however, statewide requirements 

that are not linked to the PM2.5

nonattainment status of the Baltimore 

Area. Therefore, EPA believes that these 

SIP elements are not applicable 

requirements for purposes of review of 

Maryland’s PM2.5 redesignation request. 

b. Subpart 1 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 Baltimore Area has 

attained the 1997 annual PM2.5 NAAQS. 

Pursuant to 40 CFR 51.2004(c), the 

requirement for Maryland to submit, for 

the Baltimore 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 

be submitted. Since the Baltimore Area 

has attained 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 Baltimore Area 

for the 1997 annual PM2.5 NAAQS. 

The requirement under section 

172(c)(3) was not suspended by EPA’s 

clean data determination for the 1997 

annual PM2.5 NAAQS, and is the only 

remaining requirement under section 

172 of the CAA to be considered for 

purposes of redesignation of the 

Baltimore Area. Section 172(c)(3) of the 

CAA requires submission and approval 

of a comprehensive, accurate, and 

current inventory of actual emissions. 

On December 10, 2012 (77 FR 73313), 

EPA approved a 2002 emissions 

inventory for the 1997 annual PM2.5

NAAQS for the Baltimore Area. The 

emissions inventory, submitted by 

Maryland on June 8, 2008 along with 

the Baltimore Area attainment plan for 

the 1997 annual PM2.5 NAAQS, was 

submitted to meet the requirements of 

section 172(c)(3) of the CAA. The 2002 

comprehensive emissions inventory for 

the 1997 annual PM2.5 standard 

submitted by the State included 

emissions estimates that cover the 

general source categories of point 

sources, area sources, onroad mobile 

sources, and nonroad mobile sources for 

the Baltimore Area. The pollutants that 

comprise the State’s 2002 emissions 

inventory for the Baltimore Area are 

PM2.5, NOX, SO2, VOC, and ammonia 

(NH3). An evaluation of the 2002 

comprehensive emissions inventory for 

the Baltimore Area is provided in the 

TSD prepared by EPA for that separate 

rulemaking action. See Docket ID No. 

EPA–R03–OAR–2010–0143. 

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 New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ 

Maryland’s PSD program for the 1997 

annual PM2.5 NAAQS will become 

effective in the Baltimore Area upon 

redesignation to attainment. See (77 FR 

45949, August 2, 2012) (approving 

revisions to Maryland’s PSD program). 

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 Maryland 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 

Baltimore Area to attainment status, 

Maryland submitted a SIP revision to 

provide for maintenance of the 1997 

annual PM2.5 NAAQS in the Baltimore 

Area through 2025, which is at least 10 

years after redesignation. Maryland is 

requesting that EPA approve this SIP 

revision as meeting the requirement of 

section 175A of the CAA. Once 

approved, the Baltimore Area 

maintenance plan will ensure that the 

SIP for Maryland 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 (Maintenance Plan) of this 

document. 

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 


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(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) 

(upholding this interpretation). See also 

(60 FR 62748, December 7, 1995) 

(discussing Tampa, Florida). 

Thus, for purposes of redesignating 

the Baltimore Area to attainment for the 

1997 annual PM2.5 NAAQS, EPA 

determines that the Area has meet all 

applicable SIP requirements under part 

D of Title I of the CAA. 

c. Maryland Has a Fully Approved 

Applicable SIP Under Section 110(k) of 

the CAA 

EPA has fully approved all applicable 

requirements of the Maryland SIP for 

the Baltimore 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. Maryland’s 

redesignation request indicates that a 

variety of federal vehicle control 

programs have created emission 

reductions that contributed to 

attainment in 2007. In making this 

demonstration, Maryland has calculated 

the change in emissions for the on-road 

sector between 2002, one of the years 

used to designate the Area as 

nonattainment, and 2007, one of the 

years the Area monitored attainment, as 

shown in Table 2. 

TABLE 2—COMPARISON OF 2002 NONATTAINMENT YEAR AND 2007 ATTAINMENT YEAR REDUCTIONS FOR ON ROAD

EMISSIONS IN THE BALTIMORE AREA (TPY) 

2002 2007 Decrease 

SO2 .............................................................................................................................................. 2,025.51 385.34 1,640.17 

NOX .............................................................................................................................................. 76,060.01 49,140.12 26,219.89 

PM2.5 ............................................................................................................................................ 2,344.86 1,789.28 555.52 

VOC ............................................................................................................................................. 28,060.25 19,998.51 8,061.74 

NH3 .............................................................................................................................................. 1,402.09 91.77 1,310. 32 

Total ...................................................................................................................................... 109,892.72 71,405.02 37,787.64 

The reduction in emissions and the 

corresponding improvement in air 

quality from 2002 to 2007 in the 

Baltimore Area can be attributed to a 

number of regulatory control measures 

that have been implemented in the 

Baltimore Area and contributing areas 

in recent years. An evaluation of the 

State’s 2002 comprehensive emissions 

inventory for the Baltimore Area is 

provided in the TSD prepared by EPA 

for the December 7, 2012 rulemaking 

action approving the base year 

inventory. See Docket ID No. EPA–R03– 

OAR–2010–0143. An evaluation of the 

2007 emissions inventory is provided in 

EPA’s emissions inventory TSD dated 

July 23, 2014, which is available in the 

docket for this proposed rulemaking 

action. 

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 all new 

passenger vehicles, including sport 

utility vehicles, minivans, vans, and 

pick-up trucks. 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. 

On June 29, 2004 (69 FR 38958), 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 phased in 

requirements for reducing the sulfur 

content of diesel used in nonroad diesel 

engines. The reduction in sulfur content 

prevents damage to the more advanced 

emission control systems needed to 

meet the engine standards. It will also 

reduce fine particulate emissions from 

diesel engines. The rule also reduces the 

sulfur content in nonroad diesel fuel by 

over 99%. Prior to 2006, nonroad diesel 

fuel averaged approximately 3,400 ppm 

sulfur. Starting in 2007, this rule limited 

nonroad diesel sulfur content to 500 

ppm, with a further reduction to 15 ppm 

in 2010. The combined engine standards 

and the sulfur in fuel reductions will 

reduce NOX and PM emissions from 

large nonroad engines by over 90%, 


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compared to current nonroad engines 

using higher sulfur content diesel. 

In November 2002, EPA promulgated 

emission standards for groups of 

previously unregulated nonroad 

engines. These engines include large 

spark-ignition engines such as those 

used in forklifts, airport ground service 

equipment, and farm and construction 

equipment; recreational vehicles using 

spark-ignition engines such as off 

highway motorcycles, all-terrain 

vehicles and snowmobiles; and 

recreational marine diesel engines. 

Emission standards from large sparkignition engines were implemented in 

two tiers, with Tier 1 starting in 2004 

and Tier 2 in 2007. Recreational vehicle 

emission standards were phased in from 

2006 through 2012. Marine diesel 

engine standards were phased in from 

2006 through 2009. With full 

implementation of the entire nonroad 

spark-ignition engine and recreational 

engine standards, an 80% reduction in 

NOX is expected by 2020. 

B. Maintenance Plan 

On December 12, 2013, MDE 

submitted a maintenance plan for the 

Baltimore Area for the 1997 annual 

PM2.5 NAAQS pursuant to section 175A 

of the CAA. EPA’s analysis for 

proposing approval of the maintenance 

plan is provided in this section. 

1. Attainment Emissions Inventory 

Section 172(c)(3) requires states to 

submit a comprehensive, accurate, 

current inventory of actual emissions 

from all sources in the nonattainment 

area. For a maintenance plan, states are 

required to submit an inventory to 

identify the level of emissions in the 

area which is sufficient to attain the 

NAAQS, referred to as the attainment 

inventory (or the maintenance plan base 

year inventory), and which should be 

based on actual emissions. MDE 

submitted an attainment inventory for 

2007, one of the years in the period 

during which the Baltimore Area 

monitored attainment of the 1997 

annual PM2.5 standard. The attainment 

inventory is comprised of NOX, PM2.5, 

SO2, VOC, and NH3 emissions from 

point sources, nonpoint sources, onroad 

mobile sources, and nonroad mobile 

sources. 

For the 2007 emissions inventory for 

point, nonpoint, and nonroad source 

categories, MDE submitted the 2007 

Version 3 emissions inventory 

developed through the Mid-Atlantic 

Regional Air Management Association 

(MARAMA) regional planning process. 

Details related to the development of the 

2007 emissions inventory can be found 

in the January 23, 2012 MARAMA TSD 

entitled ‘‘Technical Support Document 

for the Development of the 2007 

Emissions Inventory for the Regional 

Air Quality Modeling in the Northeast/ 

Mid-Atlantic Region Version 3.3’’, 

which may be found in Appendix D of 

the State’s submittal, and is available in 

the docket for this proposed rulemaking 

action. 

The 2007 point source inventory 

includes emissions from EGUs and nonEGU sources as developed by MARAMA 

in consultation with MDE. The 

nonpoint source emissions inventory for 

2007 was developed using 2007 specific 

activity data along with EPA emission 

factors and the most recently available 

emission calculation methodologies. 

The 2007 nonroad mobile source 

emissions was generated using EPA’s 

National Mobile Inventory Model 

(NMIM) 2008, which used the 

NONROAD 2008a emissions model. 

Since marine, air and rail/locomotive 

(MAR) emissions are not part of the 

NONROAD model, they were calculated 

separately outside of the NONROAD 

model using the most recent 

methodologies and inputs. 

The 2007 onroad mobile source 

inventory was developed by using 

EPA’s highway mobile source emissions 

model MOVES2010a. A mix of default 

and local data was used to develop the 

inventory. The 2007 onroad emissions 

inventory, including a summary of the 

methodology and data assumptions 

used for the analysis may be found in 

Appendix F of the State’s submittal, 

which is available in the docket for this 

proposed rulemaking action. 

EPA has reviewed the documentation 

provided by MDE and found the 

emissions inventory to be approvable. 

For more information on the 2007 

inventory submitted by MDE and EPA’s 

analysis of the inventory, see Appendix 

A of the State’s submittal and EPA’s 

emissions inventory TSD dated July 23, 

2014, both of which are available in the 

docket for this proposed rulemaking 

action. 

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. The 

measures described in subsection A.3 of 

section V (Permanent and Enforceable 

Reductions in Emissions) of this 

proposed rulemaking action achieved 

the reduction in emissions from point, 

area, and mobile sources in the Area 

that led to attainment in 2007, and will 

continue through 2025. In addition, 

some of the nonroad and on-road 

measures that helped the Area attain the 

standard in 2007 have requirements 

which became applicable after 2007, 

and will help maintain the standard 

during the 10 year maintenance period. 

In addition to the measures described in 

subsection A.3 of section V, Maryland’s 

Healthy Air Act (HAA) regulation will 

help to ensure the continuing decline of 

SO2 and NOX emissions in the Area 

during the maintenance period and 

beyond. Maryland’s HAA regulation 

requires emission reductions of NOX

and SO2 from large coal-fired power 

plants in Maryland, and will limit 

emissions from the Brandon Shores, 

Herbert A. Wagner, and C.P. Crane 

Generating Stations, all of which are 

located in the Baltimore Area. See 73 FR 

51599, September 4, 2008 (approving 

Maryland’s HAA regulation into the 

Maryland SIP). The HAA was phased in 

starting in 2009 with a second phase 

that started in 2012. At full 

implementation, the HAA will reduce 

NOX and SO2 emissions from affected 

units by 65 percent and 80 percent, 

respectively, from 2002 levels. 

To show that the Baltimore Area will 

remain in attainment, MDE uses 

projection inventories derived by 

applying appropriate growth and 

control factors to the 2007 attainment 

year emissions inventory. MDE 

developed projection inventories for an 

interim year of 2017 and a maintenance 

plan end year of 2025 to show that 

future emissions of SO2, NOX, PM2.5, 

VOC, and NH3, will remain at or below 

the 2007 emissions levels throughout 

the Baltimore Area through the year 

2025. 

For EGU emissions, the Department of 

Energy 2011 Annual Energy Outlook 

growth factors, delineated by region and 

fuel, were used to develop the projected 

EGU emissions. Non-EGU emissions 

were developed using employment 

projections and other state specific 


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emission data. Nonpoint emissions for 

2017 and 2025 were developed by 

applying the appropriate growth and 

control factors to the 2007 inventory. 

Nonroad source emissions for 2017 and 

2025 were developed using growth 

factors from EPA’s NMIM2008 model. 

On-road emissions for 2017 and 2025 

were developed using EPA’s 

MOVES2010a mobile source inventory 

model. 

EPA has determined that the 

emissions inventories discussed above 

as provided by MDE are approvable. For 

detailed information on the projected 

inventories, see Appendices B and C of 

the State submittal, and for more 

information on EPA’s analysis of the 

emissions inventory, see EPA’s 

emissions inventory TSD dated July 23, 

2014, all of which are available in the 

docket for this proposed rulemaking 

action. Table 3 shows the inventories for 

the 2007 attainment year, the 2017 

interim year, and the 2025 maintenance 

plan end year for the Baltimore Area. 

TABLE 3—COMPARISION OF 2007 ATTAINMENT YEAR INVENTORY WITH 2017 AND 2025 PROJECTED EMISSIONS IN THE

BALTIMORE AREA (TPY) 

2007 2017 2025 Change from 

2007–2017 

Change from 

2007–2025 

SO2 ....................................................................................... 103,510 24,714 24,620 78,796 78,890 

NOX ...................................................................................... 116,595 69,258 58,249 47,337 58,346 

PM2.5 .................................................................................... 19,005 16,374 16,205 2,631 2,800 

VOC ..................................................................................... 64,416 46,800 44,302 17,616 20,114 

NH3 ....................................................................................... 4,117 3,905 3,930 212 187 

Total .............................................................................. 307,643 161,051 147,305 146,592 160,337 

Table 3 shows that between 2007 and 

2017, the Baltimore Area is projected to 

reduce SO2 emissions by 76.1 percent, 

NOX emissions by 40.6 percent, PM2.5

emissions by 13.8 percent, NH3 by 5.1 

percent, and VOC by 27.3 percent. 

Between 2007 and 2025, the Baltimore 

Area is projected to reduce SO2

emissions by 76.2 percent, NOX

emissions by 50.0 percent, PM2.5

emissions by 14.7 percent, NH3 by 4.5 

percent and VOC by 31.2 percent. The 

projected emissions inventories show 

that the Baltimore Area will continue to 

maintain the 1997 annual PM2.5 NAAQS 

during the 10 year maintenance period. 

3. Monitoring Network 

There are eight PM2.5 monitors in the 

Baltimore Area. EPA has determined 

that Maryland’s maintenance plan 

includes a commitment to continue to 

operate its EPA-approved monitoring 

network, as necessary to demonstrate 

ongoing compliance with the NAAQS. 

The Baltimore Area maintenance plan 

includes the State’s commitment to 

continue to operate and maintain its 

PM2.5 air quality monitoring network, 

consistent with EPA’s monitoring 

requirements, as necessary to 

demonstrate ongoing compliance with 

the 1997 annual PM2.5 NAAQS. In its 

December 12, 2013 submittal, Maryland 

states 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 Baltimore Area, 

MDE will periodically update the 

emissions inventory, consisting of 

annual and periodic evaluations. 

Annual emissions updates of stationary 

sources, the Highway Performance 

Monitoring System vehicle miles 

travelled data reported to the Federal 

Highway Administration, and other 

growth indicators, which will be 

compared to the growth assumptions to 

determine if the projected growth and 

observed growth are consistent. MDE 

will also submit comprehensive tracking 

inventories to EPA every three years as 

required by EPA’s Air Emissions 

Reporting Requirements (AERR) or as 

required by other federal regulations 

during the maintenance plan period. 

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). 

Maryland’s maintenance plan outlines 

the procedures for the adoption and 

implementation of contingency 

measures to further reduce emissions 

should a violation occur. These 

procedures would be triggered in one of 

three situations: (1) When the annual 

actual emissions of SO2, NOX, or PM2.5

exceed the attainment year inventories 

that are identified in Table 3, (2) when 

there is an annual exceedance (annual 

average for one year at a federal 

reference method monitor located in the 

Baltimore Area) of 15.0 mg/m3; or, (3) 

When there is any violation (three year 

average of the annual average at a 

federal reference method monitor 

located in the Baltimore Area) of 15.0 

mg/m3 or greater. 

If any future year emissions inventory 

indicates that the Baltimore Area’s total 

emissions of SO2, NOX, or PM2.5 exceeds 

the attainment year levels, MDE would 

first perform an audit to determine if 

inventory refinements are needed, 

including a review of whether 

appropriate models, control strategies, 

monitoring strategies, planning 

assumptions, industrial throughput, and 

production data were used in the 

attainment year and future year 

projections. If the audit does not 

reconcile the emissions exceedances, 

MDE will implement one or more of the 

contingency measures identified in the 

plan. If an annual exceedance of 15.0 

mg/m3 occurs, MDE commits to 

implementing one of the contingency 

measures identified for additional 

emission reductions, and if a violation 

occurs, MDE commits to implementing 

two or more of the contingency 

measures to correct the violation. 

As explained in greater detail in the 

Baltimore Area maintenance plan, the 

candidate contingency measures 

include the following: (1) PM2.5 RACM 

determinations; (2) NOX RACM 

determination; (3) Non Road diesel 

emission reduction strategies; (4) low 


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sulfur home heating oil requirements; 

(5) alternative fuel and diesel retrofit 

programs for fleet vehicle operations; 

and, (6) wet suppression upgrade 

requirements for concrete 

manufacturing. EPA finds that the 

Baltimore Area maintenance plan 

includes appropriate contingency 

measures as necessary to ensure MDE 

will promptly correct any violation of 

the NAAQS that occurs after 

redesignation. Finally, the maintenance 

plan establishes a schedule for 

implementation of contingency 

measures if needed, and MDE has 

committed to full implementation of 

contingency measures or programs 

within 24 months after notification by 

EPA that contingency measures must be 

implemented or 27 months after quality 

assured data indicates an exceedance or 

violation has occurred. For all of the 

reasons discussed above, EPA is 

proposing to approve the 1997 annual 

PM2.5 maintenance plan for the 

Baltimore 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 December 12, 2013, Maryland 

submitted a SIP revision that contains 

the 2017 and 2025 PM2.5 and NOX

onroad mobile source budgets for the 

Baltimore Area. Maryland 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 

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 PMspecific 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 Baltimore 

Area. The MVEBs are presented in Table 

4. 

TABLE 4—MVEBS FOR BALTIMORE

AREA, MARYLAND FOR THE 1997 

PM2.5 NAAQS IN TPY

Year PM2.5 NOX

2017 .......... 1,218.60 29,892.01 

2025 .......... 1,051.39 21,594.96 

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 April 30, 2014, EPA initiated an 

adequacy review of the MVEBs for the 

1997 annual PM2.5 NAAQS that 

Maryland 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 May 30, 

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 found 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 the Baltimore Area for 

transportation conformity purposes. 

Additional information pertaining to the 

review of the MVEBs can be found in 

the transportation conformity TSD dated 

May 20, 2014, available in the docket for 

this proposed rulemaking action. 

VI. Proposed Actions 

EPA is proposing to approve the 

request submitted by Maryland to 

redesignate the Baltimore Area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. EPA has 

evaluated the State’s redesignation 

request and determined that it meets the 

redesignation criteria set forth in section 

107(d)(3)(E) of the CAA for the 1997 

annual PM2.5 standard. The monitoring 

data demonstrates that the Baltimore 

Area has attained the 1997 annual PM2.5

NAAQS, and, for the reasons discussed 

previously, that it will continue to attain 

the 1997 annual PM2.5 NAAQS. EPA is 

also proposing to approve the 

maintenance plan for the Baltimore 

Area as a revision to the Maryland SIP 

for the 1997 annual PM2.5 standard 

because the plan meets the requirements 

of CAA section 175A for the standard, 

as described previously in this proposed 

rulemaking notice. In addition, EPA is 

proposing to approve the 2017 and 2025 

PM2.5 and NOX MVEBs for the Baltimore 

Area for transportation conformity 

purposes. Final approval of the 

redesignation request would change the 

official designation of the Baltimore 

Area from nonattainment to attainment 

as found at 40 CFR part 81, for the 1997 

annual PM2.5 NAAQS, and would 

incorporate into the Maryland SIP the 

maintenance plan ensuring continued 

attainment of the 1997 annual PM2.5

NAAQS in the Area for 10 years after 

redesignation. 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 


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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 Maryland’s redesignation 

request, associated maintenance plan, 

and MVEBs for transportation 

conformity purposes for the Baltimore 

Area for the 1997 annual PM2.5 NAAQS 

does not have tribal implications as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000), because 

the SIP is not approved to apply in 

Indian country located in the state, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen oxides, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

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

Dated: September 15, 2014. 

William C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2014–23638 Filed 10–2–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of Inspector General 

42 CFR Parts 1001 and 1003 

RIN 0936–AA06 

Medicare and State Health Care 

Programs: Fraud and Abuse; 

Revisions to Safe Harbors Under the 

Anti-Kickback Statute, and Civil 

Monetary Penalty Rules Regarding 

Beneficiary Inducements and 

Gainsharing 

AGENCY: Office of Inspector General 

(OIG), HHS. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

amend the safe harbors to the antikickback statute and the civil monetary 

penalty (CMP) rules under the authority 

of the Office of Inspector General (OIG). 

The proposed rule would add new safe 

harbors, some of which codify statutory 

changes set forth in the Medicare 

Prescription Drug, Improvement, and 

Modernization Act of 2003 (MMA) and 

the Patient Protection and Affordable 

Care Act, Public Law 111–148, 124 Stat. 

119 (2010), as amended by the Health 

Care and Education Reconciliation Act 

of 2010, Public Law 111–152, 124 Stat. 

1029 (2010) (ACA), and all of which 

would protect certain payment practices 

and business arrangements from 

criminal prosecution or civil sanctions 

under the anti-kickback statute. We also 

propose to codify revisions to the 

definition of ‘‘remuneration,’’ added by 

the Balanced Budget Act (BBA) of 1997 

and ACA, and add a gainsharing CMP 

provision in our regulations. 

DATES: To ensure consideration, 

comments must be delivered to the 

address provided below by no later than 

5 p.m. Eastern Standard Time on 

December 2, 2014. 

ADDRESSES: In commenting, please 

reference file code OIG–403–P3. 

Because of staff and resource 

limitations, we cannot accept comments 

by facsimile (FAX) transmission. 

However, you may submit comments 

using one of three ways (no duplicates, 

please): 

1. Electronically. You may submit 

electronically through the Federal 

eRulemaking Portal at http://

www.regulations.gov. (Attachments 

should be in Microsoft Word, if 

possible.) 

2. By regular, express, or overnight 

mail. You may mail your printed or 

written submissions to the following 

address: 

Patrice Drew, Office of Inspector General, 

Department of Health and Human Services, 

Attention: OIG–403–P, Room 5269, Cohen 

Building, 330 Independence Avenue SW., 

Room 5269, Washington, DC 20201. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By hand or courier. You may 

deliver, by hand or courier, before the 

close of the comment period, your 

printed or written comments to: 

Patrice Drew, Office of Inspector General, 

Department of Health and Human Services, 

Cohen Building, 330 Independence Avenue 

SW., Room 5269, Washington, DC 20201. 

Because access to the interior of the 

Cohen Building is not readily available 

to persons without Federal Government 

identification, commenters are 

encouraged to schedule their delivery 

with one of our staff at (202) 619–1368. 

Inspection of Public Comments: All 

comments received before the end of the 

comment period will be posted on 

http://www.regulations.gov for public 

viewing. Hard copies will also be 

available for public inspection at the 

Office of Inspector General, Department 

of Health and Human Services, Cohen 

Building, 330 Independence Avenue 

SW., Washington, DC 20201, Monday 

through Friday from 8:30 a.m. to 4 p.m. 

To schedule an appointment to view 

public comments, phone (202) 619– 

1368. 

FOR FURTHER INFORMATION CONTACT: 

Heather Westphal, Office of Counsel to 

the Inspector General, (202) 619–0335, 

for questions relating to the proposed 

rule. 

Executive Summary 

A. Need For Regulatory Action 

MMA and ACA include exceptions to 

the anti-kickback statute, and BBA of 

1997 and ACA include exceptions to the 

definition of ‘‘remuneration’’ under the 

civil monetary penalties law. OIG 

proposes to codify those changes here. 

At the same time, OIG proposes 

additional changes to make technical 

corrections to an existing regulation and 

proposes new safe harbors to the antiVerDate Sep<11>2014 14:51 Oct 02, 2014 Jkt 235001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\03OCP1.SGM 03OCP1

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