41752 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Proposed Rules 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Are not significant regulatory 

actions subject to Executive Order 

13211 (66 FR 28355, May 22, 2001); 

• Are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule 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, Intergovernmental relations, 

Particulate matter. 

40 CFR Part 81 

Air pollution control, Environmental 

protection, National Parks, Wilderness. 

Dated: June 25, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2013–16659 Filed 7–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2012–0337 and EPA–R05– 

OAR–2012–0462; FRL–9831–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Redesignation of the Ohio Portion of 

the Steubenville-Weirton Area to 

Attainment of the 1997 Annual and 

2006 24-Hour Standards for Fine 

Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On April 16, 2012, and May 

25, 2012, the Ohio Environmental 

Protection Agency submitted a request 

under the Clean Air Act (CAA or Act) 

for EPA to grant the redesignation of the 

Ohio portion of the SteubenvilleWeirton area (Jefferson County), West 

Virginia-Ohio (Brooke and Hancock 

counties) (WV–OH), nonattainment area 

to attainment of the 1997 annual and 

2006 24-hour standards for fine 

particulate matter (PM2.5). EPA is 

proposing to determine that the entire 

Steubenville-Weirton area attains both 

the 1997 annual and the 2006 24-hour 

PM2.5 standard, based on the most 

recent three years of certified air quality 

data. EPA is proposing to approve, as 

revisions to the Ohio state 

implementation plan (SIP), the state’s 

plan for maintaining the 1997 annual 

and 2006 24-hour PM2.5 National 

Ambient Air Quality Standards 

(NAAQS or standard) through 2025 in 

the Ohio portion of the area. EPA is 

proposing to approve 2005 and 2008 

emission inventories for the Ohio 

portion of the Steubenville-Weirton area 

as meeting the comprehensive 

emissions inventory requirement of the 

CAA. In this proposal, EPA is also 

proposing to approve a supplement to 

the emission inventories previously 

submitted by the state. EPA is proposing 

that the inventories for ammonia and 

volatile organic compounds (VOC), in 

conjunction with the inventories for 

nitrogen oxides (NOX), direct PM2.5, and 

sulfur dioxide (SO2) that EPA 

previously proposed to approve, meet 

the comprehensive emissions inventory 

requirement of the CAA. Ohio’s 

maintenance plan submission includes 

a motor vehicle emission budget 

(MVEB) for the mobile source 

contribution of PM2.5 and NOX to the 

Steubenville-Weirton area for 

transportation conformity purposes; 

EPA is proposing to approve the MVEBs 

for 2015 and 2025 into the Ohio SIP for 

transportation conformity purposes. 

DATES: Comments must be received on 

or before August 12, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2012–0337 or EPA–R05–OAR– 

2012–0462, by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: blakley.pamela@epa.gov. 

3. Fax: (312) 692–2450. 

4. Mail: Pamela Blakley, Chief, 

Control Strategies Section (AR–18J), 

U.S. Environmental Protection Agency, 

77 West Jackson Boulevard, Chicago, 

Illinois 60604. 

5. Hand Delivery: Pamela Blakley, 

Chief, Control Strategies Section (AR– 

18J), U.S. Environmental Protection 

Agency, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. Such deliveries 

are only accepted during the Regional 

Office normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

8:30 a.m. to 4:30 p.m. excluding Federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2012– 

0337 or EPA–R05–OAR–2012–0462. 

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 


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able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section I of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Carolyn 

Persoon, Environmental Engineer, at 

(312) 353–8290 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Carolyn Persoon, Environmental 

Engineer, Control Strategies Section, Air 

Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–8290, 

persoon.carolyn@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

arranged as follows: 

I. What should I consider as I prepare my 

comments for EPA? 

II. What actions is EPA proposing to take? 

III. What is the background for these actions? 

IV. What are the criteria for redesignation to 

attainment? 

V. What is EPA’s analysis of the state’s 

request? 

1. Attainment 

2. The Area Has Met All Applicable 

Requirements Under Section 110 and 

Part D and Has a Fully Approved SIP 

Under Section 110(k) (Sections 

107(d)(3)(E)(v) and 107(d)(3)(E)(ii)) 

3. The Improvement in Air Quality Is Due 

to Permanent and Enforceable 

Reductions in Emissions Resulting From 

Implementation of the SIP and 

Applicable Federal Air Pollution Control 

Regulations and Other Permanent and 

Enforceable Reductions (Section 

107(d)(3)(E)(iii)) 

4. Ohio Has a Fully Approved Maintenance 

Plan Pursuant to Section 175A of the 

CAA (Section 107(d)(3)(E)(iv)) 

5. Insignificance Determination for the 

Mobile Source Contribution to PM2.5 and 

NOX

6. 2005 and 2008 Comprehensive 

Emissions Inventory 

7. Summary of Proposed Actions 

VI. What are the effects of EPA’s proposed 

actions? 

VII. Statutory and Executive Order Reviews 

I. What should I consider as I prepare 

my comments for EPA? 

When submitting comments, 

remember to: 

1. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

2. Follow directions—EPA may ask 

you to respond to specific questions or 

organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

3. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

4. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

5. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

6. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

7. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

8. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. What actions is EPA proposing to 

take? 

EPA is proposing to take several 

actions related to redesignation of the 

Ohio portion of the SteubenvilleWeirton area to attainment for the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

In addition to EPA’s September 14, 

2011, determination that the area meets 

the NAAQS for PM2.5 based on qualityassured, certified 2008–2010 ambient air 

monitoring data (76 FR 56641), we are 

proposing to determine that the area 

continues to attain the NAAQS for 

PM2.5, based on quality-assured and 

state certified monitoring data for 2010– 

2012. EPA is proposing to find that Ohio 

meets the requirements for 

redesignation of the SteubenvilleWeirton area to attainment of the 1997 

and 2006 24-hour PM2.5 NAAQS under 

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

Second, EPA is proposing to approve 

Ohio’s annual PM2.5 maintenance plan 

for the Steubenville-Weirton area as a 

revision to the Ohio SIP, including the 

MVEB for PM2.5 and NOX emissions for 

the mobile source contribution of the 

Steubenville-Weirton area. 

Finally, EPA is proposing to approve 

the 2005 and 2008 primary PM2.5, NOX

and SO2 emissions inventories as 

satisfying the requirement in section 

172(c)(3) of the CAA for a current, 

accurate and comprehensive emission 

inventory. In a supplemental 

submission to EPA on April 29, 2013, 

Ohio submitted ammonia and VOC 

emissions inventories to supplement the 

emissions inventories that had 

previously been submitted. 

Therefore, EPA is proposing to grant 

the request from the State of Ohio to 

change the designation of Jefferson 

County (the Ohio portion of the 

Steubenville-Weirton area) from 

nonattainment to attainment of the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

This action would not change the legal 

designation of the West Virginia portion 

of the area. The West Virginia portion of 

the area will be addressed in a separate 

rulemaking. 

III. What is the background for these 

actions? 

Fine particulate pollution can be 

emitted directly from a source (primary 

PM2.5) or formed secondarily through 

chemical reactions in the atmosphere 

involving precursor pollutants emitted 

from a variety of sources. Sulfates are a 

type of secondary particulate formed 

from SO2 emissions from power plants 

and industrial facilities. Nitrates, 

another common type of secondary 

particulate, are formed from combustion 

emissions of NOX from power plants, 

mobile sources and other combustion 

sources. 

The first air quality standards for 

PM2.5 were promulgated on July 18, 

1997, at 62 FR 38652. EPA promulgated 

an annual standard at a level of 15 

micrograms per cubic meter (mg/m3) of 

ambient air, based on a three-year 

average of the annual mean PM2.5

concentrations at each monitoring site. 

In the same rulemaking, EPA 

promulgated a 24-hour PM2.5 standard at 

65 mg/m3, based on a three-year average 

of the 98th percentile of 24-hour PM2.5

concentrations at each monitoring site. 

On January 5, 2005, at 70 FR 944, EPA 

published air quality area designations 

for the 1997 annual PM2.5 standard 

based on air quality data for calendar 

years 2001–2003. In that rulemaking, 

EPA designated the SteubenvilleWeirton area as nonattainment for the 

1997 annual PM2.5 standard. 

On October 17, 2006, at 71 FR 61144, 

EPA retained the annual PM2.5 standard 

at 15 mg/m3 (2006 annual PM2.5

standard), but revised the 24-hour 

standard to 35 mg/m3, based again on the 

three-year average of the annual 98th 

percentile of the 24-hour PM2.5

concentrations. In response to legal 

challenges of the 2006 annual PM2.5


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standard, the U.S. Court of Appeals for 

the District of Columbia Circuit (D.C. 

Circuit or Court) remanded this 

standard to EPA for further 

consideration. See American Farm 

Bureau Federation and National Pork 

Producers Council, et al. v. EPA, 559 

F.3d 512 (D.C. Cir. 2009). On December 

14, 2012, EPA finalized a rule revising 

the PM2.5 annual standard to 12 mg/m3

based on current scientific evidence 

regarding the protection of public 

health. Since the Steubenville-Weirton 

area is designated as nonattainment for 

the 1997 annual and 2006 24-hour PM2.5

standards, today’s proposed action 

addresses redesignation to attainment 

only for these standards. 

On September 14, 2011, EPA issued a 

final determination that the entire 

Steubenville-Weirton area had attained 

the 1997 PM2.5 standard by the 

applicable attainment date (76 FR 

56641) and a final determination for the 

2006 24-hour standard on May 14, 2012 

(77 FR 28264). Based upon our review 

of complete, quality-assured and 

certified ambient air monitoring data 

from 2009–2011 and state certified data 

from 2010–2012, we are proposing to 

determine that the area continues to 

attain the 1997 annual and 2006 24-hour 

PM2.5 NAAQS. 

In this proposed redesignation, EPA 

takes into account two decisions of the 

D.C. Circuit. In the first of the two Court 

decisions, the D.C. Circuit, on August 

21, 2012, issued EME Homer City 

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

Cir. 2012), which vacated and remanded 

the Cross-State Air Pollution Rule 

(CSAPR) and ordered EPA to continue 

administering the Clean Air Interstate 

Rule (CAIR) ‘‘pending . . . development 

of a valid replacement.’’ EME Homer 

City at 38. The D.C. Circuit denied all 

petitions for rehearing on January 24, 

2013. In the second decision, on January 

4, 2013, in Natural Resources Defense 

Council v. EPA, the D.C. Circuit 

remanded to EPA the ‘‘Final Clean Air 

Fine Particle Implementation Rule’’ (72 

FR 20586, April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

16, 2008). 706 F.3d 428 (D.C. Cir. 2013). 

IV. What are the criteria for 

redesignation to attainment? 

The CAA sets forth the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

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

redesignation provided that: (1) The 

Administrator determines that the area 

has attained the applicable NAAQS 

based on current air quality data; (2) the 

Administrator has fully approved an 

applicable SIP for the area under section 

110(k) of the CAA; (3) the Administrator 

determines that the improvement in air 

quality is due to permanent and 

enforceable emission reductions 

resulting from implementation of the 

applicable SIP, Federal air pollution 

control regulations and other permanent 

and enforceable emission reductions; (4) 

the Administrator has fully approved a 

maintenance plan for the area meeting 

the requirements of section 175A of the 

CAA; and (5) the state containing the 

area has met all requirements applicable 

to the area for purposes of redesignation 

under section 110 and part D of the 

CAA. 

V. What is EPA’s analysis of the State’s 

request? 

EPA is proposing to grant the 

redesignation of the Ohio portion of the 

Steubenville-Weirton area to attainment 

of the 1997 annual and 2006 24-hour 

PM2.5 NAAQS and is proposing to 

approve Ohio’s maintenance plan for 

the area and other related SIP revisions. 

The bases for these actions follow. 

1. Attainment 

As noted above, in a rulemaking 

published on September 14, 2011, EPA 

determined that the SteubenvilleWeirton area had attained the 1997 

annual PM2.5 NAAQS by the applicable 

attainment date. The basis and effect of 

the determinations of attainment for 

both the 1997 and 2006 standards were 

discussed in the notices of proposed (76 

FR 28393; 76 FR 61219 respectively) 

and final (76 FR 56641; 77 FR 28264, 

respectively) rulemaking. The 

determinations were based on qualityassured air quality monitoring data for 

2007–2009 and 2008–2010 showing the 

area has met the standards. 

In this action, we are proposing to 

determine that the Steubenville-Weirton 

area continues to attain the 1997 annual 

and 2006 24-hour PM2.5 NAAQS based 

upon the most recent three years of 

complete, certified and quality-assured 

data. Under EPA’s regulations at 40 CFR 

50.7, the annual primary and secondary 

PM2.5 standards are met when the 

annual arithmetic mean concentration, 

as determined in accordance with 40 

CFR part 50, appendix N, is less than or 

equal to 15.0 mg/m3 at all relevant 

monitoring sites in the area. 

EPA has reviewed the ambient air 

quality monitoring data in the 

Steubenville-Weirton area, consistent 

with the requirements contained at 40 

CFR part 50. EPA’s review focused on 

data recorded in the EPA Air Quality 

System (AQS) database for the 

Steubenville-Weirton PM2.5

nonattainment area from 2009–2011 and 

state certified data from 2010–2012. 

The Steubenville-Weirton area has 

five monitors located in Jefferson 

County, Ohio, and Brooke and Hancock 

counties, West Virginia. Based on 

preliminary calculations using statecertified data for 2010–2012, the most 

recent three full years of data, the five 

monitors had design values from 2010– 

2012 ranging from 12.7 to 11.1 mg/m3 for 

the 1997 annual standard, and from 27 

to 24 mg/m3 for the 2006 24-hour 

standard. The monitors in the 

Steubenville-Weirton area recorded 

complete data in accordance with 

criteria set forth by EPA in 40 CFR part 

50, appendix N, where a complete year 

of air quality data comprises four 

calendar quarters, with each quarter 

containing data with at least 75% 

capture of the scheduled sampling days. 

Available data are considered to be 

sufficient for comparison to the NAAQS 

if three consecutive complete years of 

data exist. 

TABLE 1—THE 1997 ANNUAL AND 2006 24-HOUR PM2.5 DESIGN VALUES FOR THE STEUBENVILLE-WEIRTON MONITOR

WITH COMPLETE DATA FOR THE 2009–2011 AND STATE CERTIFIED 2010–2012 DESIGN VALUES 1 IN μg/m3

County Site 

Annual 

standard 

2009–2011 

24-hour 

standard 

2009–2011 

Annual 

standard 

2010–2012 

24-hour 

standard 

2010–2012 

Jefferson,OH ........................................................................ 390810017 12.5 28 12.2 27 

Jefferson,OH ........................................................................ 390811001 11.8 24 11.4 24 

Brooke, WV .......................................................................... 540090005 13.0 27 12.7 27 

Brooke, WV .......................................................................... 540090011 11.6 29 11.1 27 

Hancock, WV ....................................................................... 540291004 11.7 28 11.3 27 

1As defined in 40 CFR Part 50 Appendix N(1)(c). 


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EPA’s review of these monitoring data 

supports EPA’s determination that the 

Steubenville-Weirton area has 

monitored attainment for each time 

period. Therefore, EPA proposes to 

determine that the Steubenville-Weirton 

area continues to attain the 1997 annual 

and 2006 24-hour PM2.5 standards. 

2. The Area Has Met All Applicable 

Requirements Under Section 110 and 

Part D and Has a Fully Approved SIP 

Under Section 110(k) (Sections 

107(d)(3)(E)(v) and 107(d)(3)(E)(ii)) 

We believe that Ohio has met all 

currently applicable SIP requirements 

for purposes of redesignation for the 

Ohio portion of the SteubenvilleWeirton area under section 110 of the 

CAA (general SIP requirements). We are 

also proposing to find that the Ohio SIP 

meets all SIP requirements currently 

applicable for purposes of redesignation 

under part D of title I of the CAA, in 

accordance with section 107(d)(3)(E)(v). 

We are proposing to find that all 

applicable requirements of the Ohio SIP 

for purposes of redesignation have been 

met, in accordance with section 

107(d)(3)(E)(ii). As discussed below, in 

this action EPA is proposing to approve 

Ohio’s 2005 and 2008 emissions 

inventory as meeting the section 

172(c)(3) comprehensive emissions 

inventory requirement. In making these 

proposed determinations, we have 

ascertained which SIP requirements are 

applicable for purposes of 

redesignation, and concluded that there 

are SIP measures meeting those 

requirements and that they are approved 

or will be approved by the time of final 

rulemaking. 

a. Ohio Has Met All Applicable 

Requirements for Purposes of 

Redesignation of the Ohio Portion of the 

Area Under Section 110 and Part D of 

the CAA 

i. Section 110 General SIP Requirements 

Section 110(a) of title I of the CAA 

contains the general requirements for a 

SIP. Section 110(a)(2) provides that the 

implementation plan submitted by a 

state must have been adopted by the 

state after reasonable public notice and 

hearing, and, among other things, must: 

Include enforceable emission 

limitations and other control measures, 

means or techniques necessary to meet 

the requirements of the CAA; provide 

for establishment and operation of 

appropriate devices, methods, systems 

and procedures necessary to monitor 

ambient air quality; provide for 

implementation of a source permit 

program to regulate the modification 

and construction of any stationary 

source within the areas covered by the 

plan; include provisions for the 

implementation of part C, Prevention of 

Significant Deterioration (PSD) and part 

D, New Source Review (NSR) permit 

programs; include criteria for stationary 

source emission control measures, 

monitoring and reporting; include 

provisions for air quality modeling; and 

provide for public and local agency 

participation in planning and emission 

control rule development. 

Section 110(a)(2)(D) of the CAA 

requires that SIPs contain measures to 

prevent sources in a state from 

significantly contributing to air quality 

problems in another state. EPA believes 

that the requirements linked with a 

particular nonattainment area’s 

designation are the relevant measures to 

evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a state regardless of 

the designation of any one particular 

area in the state. Thus, we believe that 

these requirements should not be 

construed to be applicable requirements 

for purposes of redesignation. 

Further, we believe that the other 

section 110 elements described above 

that are not connected with 

nonattainment plan submissions and 

not linked with an area’s attainment 

status are also not applicable 

requirements for purposes of 

redesignation. A state remains subject to 

these requirements after an area is 

redesignated to attainment. We 

conclude that only the section 110 and 

part D requirements that are linked with 

a particular area’s designation are the 

relevant measures which we may 

consider in evaluating a redesignation 

request. This approach is consistent 

with EPA’s existing policy on 

applicability of conformity and 

oxygenated fuels requirements for 

redesignation purposes, as well as with 

section 184 ozone transport 

requirements. See Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174–53176, 

October 10, 1996) and (62 FR 24826, 

May 7, 1997); Cleveland-Akron-Lorain, 

Ohio, final rulemaking (61 FR 20458, 

May 7, 1996); and Tampa, Florida, final 

rulemaking (60 FR 62748, December 7, 

1995). See also the discussion on this 

issue in the Cincinnati, Ohio 1-hour 

ozone redesignation (65 FR 37890, June 

19, 2000), and in the Pittsburgh, 

Pennsylvania 1-hour ozone 

redesignation (66 FR 50399, October 19, 

2001). 

We have reviewed the Ohio SIP and 

have concluded that it meets the general 

SIP requirements under section 110 of 

the CAA to the extent they are 

applicable for purposes of 

redesignation. EPA has previously 

approved provisions of Ohio’s SIP 

addressing section 110 requirements, 

including provisions addressing 

particulate matter, at 40 CFR 52.1870, 

respectively). On December 5, 2007, and 

September 4, 2009, Ohio made 

submittals addressing ‘‘infrastructure 

SIP’’ elements required under CAA 

section 110(a)(2). EPA proposed 

approval of the December 5, 2007, 

submittal on April 28, 2011, at 76 FR 

23757, and published final approval on 

July 14, 2011, at 76 FR 41075. The 

requirements of section 110(a)(2), 

however, are statewide requirements 

that are not linked to the PM2.5

nonattainment status of the 

Steubenville-Weirton area. Therefore, 

EPA believes that these SIP elements are 

not applicable requirements for 

purposes of review of the state’s PM2.5

redesignation request. 

ii. Part D Requirements 

EPA is proposing to determine that, 

upon approval of the base year 

emissions inventories discussed in 

section V(6) of this rulemaking, the 

Ohio SIP will meet the SIP requirements 

for the Ohio portion of the SteubenvilleWeirton area applicable for purposes of 

redesignation under part D of the CAA. 

Subpart 1 of part D, found in sections 

172–176 of the CAA, sets forth the basic 

nonattainment requirements applicable 

to all nonattainment areas. 

(1) Subpart 1 

a. Section 172 Requirements. 

For purposes of evaluating this 

redesignation request, the applicable 

section 172 SIP requirements for the 

Ohio portion of the SteubenvilleWeirton area are contained in section 

172(c)(1)–(9). A thorough discussion of 

the requirements contained in section 

172 can be found in the General 

Preamble for Implementation of Title I 

(57 FR 13498, April 16, 1992). 

Section 172(c)(1) requires the plans 

for all nonattainment areas to provide 

for the implementation of all 

Reasonably Achievable Control 

Measures (RACM) as expeditiously as 

practicable and to provide for 

attainment of the primary NAAQS. EPA 

interprets this requirement to impose a 

duty on all nonattainment areas to 

consider all available control measures 

and to adopt and implement such 

measures as are reasonably available for 

implementation in each area as 

components of the area’s attainment 

demonstration. Because attainment has 

been reached, no additional measures 

are needed to provide for attainment, 

and section 172(c)(1) requirements are 


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no longer considered to be applicable as 

long as the area continues to attain the 

standard until redesignation. (40 CFR 

51.1004(c).) 

The Reasonable Further Progress 

(RFP) requirement under section 

172(c)(2) is defined as progress that 

must be made toward attainment. This 

requirement is not relevant for purposes 

of redesignation because the 

Steubenville-Weirton area has 

monitored attainment of the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

(General Preamble, 57 FR 13564). See 

also 40 CFR 51.918. In addition, because 

the Steubenville-Weirton area has 

attained the 1997 annual and 2006 24- 

hour PM2.5 NAAQS and is no longer 

subject to an RFP requirement, the 

requirement to submit the section 

172(c)(9) contingency measures is not 

applicable for purposes of 

redesignation. Id. 

Section 172(c)(3) requires submission 

and approval of a comprehensive, 

accurate and current inventory of actual 

emissions. Ohio submitted a 2005 

(nonattainment year) and 2008 

(attainment year) emissions inventories 

along with their redesignation request. 

As discussed below in section V(6), EPA 

is approving both the 2005 and 2008 

base year inventory as meeting the 

section 172(c)(3) emissions inventory 

requirement for the Ohio portion of the 

Steubenville-Weirton area. 

Section 172(c)(4) requires the 

identification and quantification of 

allowable emissions for major new and 

modified stationary sources in an area, 

and section 172(c)(5) requires source 

permits for the construction and 

operation of new and modified major 

stationary sources anywhere in the 

nonattainment area. EPA approved 

Ohio’s current NSR program on January 

10, 2003 (68 FR 1366). Nonetheless, 

since PSD requirements will apply after 

redesignation, the area need not have a 

fully-approved NSR program for 

purposes of redesignation, provided that 

the area demonstrates maintenance of 

the NAAQS without part D NSR. A 

detailed rationale for this view is 

described in a memorandum from Mary 

Nichols, Assistant Administrator for Air 

and Radiation, dated October 14, 1994, 

entitled, ’’Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ Ohio has 

demonstrated that the SteubenvilleWeirton area will be able to maintain 

the standard without part D NSR in 

effect; therefore, the state need not have 

a fully approved part D NSR program 

prior to approval of the redesignation 

request. The state’s PSD program will 

become effective in the SteubenvilleWeirton area upon redesignation to 

attainment. See rulemakings for Detroit, 

Michigan (60 FR 12467–12468, March 7, 

1995); Cleveland-Akron-Lorain, Ohio 

(61 FR 20458, 20469–20470, May 7, 

1996); Louisville, Kentucky (66 FR 

53665, October 23, 2001); and Grand 

Rapids, Michigan (61 FR 31834–31837, 

June 21, 1996). 

Section 172(c)(6) requires the SIP to 

contain control measures necessary to 

provide for attainment of the standard. 

Because attainment has been reached, 

no additional measures are needed to 

provide for attainment. 

Section 172(c)(7) requires the SIP to 

meet the applicable provisions of 

section 110(a)(2). As noted above, we 

believe the Ohio SIP meets the 

requirements of section 110(a)(2) 

applicable for purposes of 

redesignation. 

(b) Section 176(c)(4)(D) Conformity 

SIP Requirements. 

The requirement to determine 

conformity applies to transportation 

plans, programs and projects developed, 

funded or approved under title 23 of the 

U.S. Code and the Federal Transit Act 

(transportation conformity), as well as to 

all other Federally-supported or funded 

projects (general conformity). 

Section 176(c) of the CAA was 

amended by provisions contained in the 

Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU), which was 

signed into law on August 10, 2005 

(Pub. L. 109–59). Among the changes 

Congress made to this section of the 

CAA were streamlined requirements for 

state transportation conformity SIPs. 

State transportation conformity 

regulations must be consistent with 

Federal conformity regulations and 

address three specific requirements 

related to consultation, enforcement and 

enforceability. EPA believes that it is 

reasonable to interpret the 

transportation conformity SIP 

requirements as not applying for 

purposes of evaluating the redesignation 

request under section 107(d) for two 

reasons. 

First, the requirement to submit SIP 

revisions to comply with the 

transportation conformity provisions of 

the CAA continues to apply to areas 

after redesignation to attainment since 

such areas would be subject to a section 

175A maintenance plan. Second, EPA’s 

Federal conformity rules require the 

performance of conformity analyses in 

the absence of Federally-approved state 

rules. Therefore, because areas are 

subject to the transportation conformity 

requirements regardless of whether they 

are redesignated to attainment and, 

because they must implement 

conformity under Federal rules if state 

rules are not yet approved, EPA believes 

it is reasonable to view these 

requirements as not applying for 

purposes of evaluating a redesignation 

request. See Wall v. EPA, 265 F.3d 426 

(6th Cir. 2001), upholding this 

interpretation. See also 60 FR 62748, 

62749–62750 (Dec. 7, 1995) (Tampa, 

Florida). Ohio has an approved 

transportation conformity SIP (72 FR 

20945). Ohio is in the process of 

updating its approved transportation 

conformity SIP, and EPA will review its 

provisions when they are submitted. 

2. Effect of the January 4, 2013, D.C. 

Circuit Decision Regarding PM2.5

Implementation Under Subpart 4 

a. Background 

As discussed above, on January 4, 

2013, in Natural Resources Defense 

Council v. EPA, the D.C. Circuit 

remanded to EPA the ‘‘Final Clean Air 

Fine Particle Implementation Rule’’ (72 

FR 20586, April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’). 706 F.3d 428 

(D.C. Cir. 2013). The Court found that 

EPA erred in implementing the 1997 

PM2.5 NAAQS pursuant to the general 

implementation provisions of subpart 1 

of part D of title I of the CAA, rather 

than the particulate-matter-specific 

provisions of subpart 4 of part D of title 

I. Although the Court’s ruling did not 

directly address the 2006 PM2.5

standard, EPA is taking into account the 

Court’s position on subpart 4 and the 

1997 PM2.5 standard in evaluating 

redesignations for the 2006 standard. 

b. Proposal on This Issue 

EPA is proposing to determine that 

the Court’s January 4, 2013, decision 

does not prevent EPA from 

redesignating the Steubenville-Weirton 

area to attainment. Even in light of the 

Court’s decision, redesignation for this 

area is appropriate under the CAA and 

EPA’s longstanding interpretations of 

the CAA’s provisions regarding 

redesignation. EPA’s 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, even if EPA applies the 

subpart 4 requirements to the 

Steubenville-Weirton redesignation 

request and disregards the provisions of 

its 1997 PM2.5 implementation rule 

recently remanded by the Court, the 


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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. 

state’s request for redesignation of this 

area still qualifies for approval. 

i. Applicable Requirements for Purposes 

of Evaluating the Redesignation Request 

With respect to the 1997 PM2.5

implementation rule, the Court’s 

January 4, 2013, ruling rejected EPA’s 

reasons for implementing the PM2.5

NAAQS solely in accordance with the 

provisions of subpart 1, and remanded 

that matter to EPA, so that it could 

address implementation of the 1997 

PM2.5 NAAQS under subpart 4 of part D 

of the CAA, in addition to subpart 1. For 

the purposes of evaluating Ohio’s 

redesignation request for the area, to the 

extent that implementation under 

subpart 4 would impose additional 

requirements for areas designated 

nonattainment, EPA believes that those 

requirements are not ‘‘applicable’’ for 

the purposes of CAA section 

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

required to consider subpart 4 

requirements with respect to the 

Steubenville-Weirton redesignation. 

Under its longstanding interpretation of 

the CAA, EPA has interpreted section 

107(d)(3)(E) to mean, as a threshold 

matter, that the part D provisions which 

are ‘‘applicable’’ and which must be 

approved in order for EPA to 

redesignate an area include only those 

which came due prior to a state’s 

submittal of a complete redesignation 

request. See ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992 (Calcagni memorandum). See also 

‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) 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 Ohio submitted its redesignation 

request, requirements under subpart 4 

were not due, [and indeed, were not yet 

known to apply.] 

EPA’s view that, for purposes of 

evaluating the Steubenville-Weirton 

redesignation, the subpart 4 

requirements were not due at the time 

the state 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’s decision 

in South Coast Air Quality Mgmt. Dist. 

v. EPA, 472 F.3d 882 (D.C. Cir. 2006). 

In South Coast, the Court found that 

EPA was not permitted to implement 

the 1997 8-hour ozone standard solely 

under subpart 1, and held that EPA was 

required under the statute to implement 

the standard under the ozone-specific 

requirements of subpart 2 as well. 

Subsequent to the South Coast decision, 

in evaluating and acting upon 

redesignation requests for the 1997 8- 

hour ozone standard that were 

submitted to EPA for areas under 

subpart 1, EPA applied its longstanding 

interpretation of the CAA that 

‘‘applicable requirements’’, for purposes 

of evaluating a redesignation, are those 

that had been due at the time the 

redesignation request was submitted. 

See, e.g., Proposed Redesignation of 

Manitowoc County and Door County 

Nonattainment Areas (75 FR 22047, 

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

EPA therefore did not consider subpart 

2 requirements to be ‘‘applicable’’ for 

the purposes of evaluating whether the 

area should be redesignated under 

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

EPA’s interpretation derives from the 

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

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

area to be redesignated, a state must 

meet ‘‘all requirements ‘applicable’ to 

the area under section 110 and part D’’. 

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

EPA must have fully approved the 

‘‘applicable’’ SIP for the area seeking 

redesignation. These two sections read 

together support EPA’s interpretation of 

‘‘applicable’’ as only those requirements 

that came due prior to submission of a 

complete redesignation request. First, 

holding states to an ongoing obligation 

to adopt new CAA requirements that 

arose after the state submitted its 

redesignation request, in order to be 

redesignated, would make it 

problematic or impossible for EPA to act 

on redesignation requests in accordance 

with the 18-month deadline Congress 

set for EPA action in section 

107(d)(3)(D). If ‘‘applicable 

requirements’’ were interpreted to be a 

continuing flow of requirements with no 

reasonable limitation, states, after 

submitting a redesignation request, 

would be forced continuously to make 

additional SIP submissions that in turn 

would require EPA to undertake further 

notice-and-comment rulemaking actions 

to act on those submissions. This would 

create a regime of unceasing rulemaking 

that would delay action on the 

redesignation request beyond the 18- 

month timeframe provided by the CAA 

for this purpose. 

Second, a fundamental premise for 

redesignating a nonattainment area to 

attainment is that the area has attained 

the relevant NAAQS due to emission 

reductions from existing controls. Thus, 

an area for which a redesignation 

request has been submitted would have 

already attained the NAAQS as a result 

of satisfying statutory requirements that 

came due prior to the submission of the 

request. Absent a showing that 

unadopted and unimplemented 

requirements are necessary for future 

maintenance, it is reasonable to view 

the requirements applicable for 

purposes of evaluating the redesignation 

request as including only those SIP 

requirements that have already come 

due. These are the requirements that led 

to attainment of the NAAQS. To require, 

for redesignation approval, that a state 

also satisfy additional SIP requirements 

coming due after the state submits its 

complete redesignation request, and 

while EPA is reviewing it, would 

compel the state to do more than is 

necessary to attain the NAAQS, without 

a showing that the additional 

requirements are necessary for 

maintenance. 

In the context of this redesignation, 

the timing and nature of the Court’s 

January 4, 2013, decision in NRDC v. 

EPA compound the consequences of 

imposing requirements that come due 

after the redesignation request is 

submitted. The state submitted its 

redesignation request on July 5, 2011, 

but the Court did not issue its decision 

remanding EPA’s 1997 PM2.5

implementation rule concerning the 

applicability of the provisions of 

subpart 4 until January 2013. 

To require the state’s fully-completed 

and pending redesignation request to 

comply now with requirements of 

subpart 4 that the Court announced only 

in January, 2013, would be to give 

retroactive effect to such requirements 

when the state had no notice that it was 

required to meet them. The D.C. Circuit 


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3Sierra Club v. Whitman was discussed and 

distinguished in a recent D.C. Circuit decision that 

addressed retroactivity in a quite different context, 

where, unlike the situation here, EPA sought to give 

its regulations retroactive effect. National 

Petrochemical and Refiners Ass’n v. EPA. 630 F.3d 

145, 163 (D.C. Cir. 2010), rehearing denied 643 F.3d 

958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571 

(2011). 

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 is discussed below. 

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

milestone requirements, contingency measures. 

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 Court’s ruling 

refusing to make retroactive EPA’s 

determination that the St. Louis area did 

not meet its attainment deadline. In that 

case, petitioners urged the Court to 

make EPA’s nonattainment 

determination effective as of the date 

that the statute required, rather than the 

later date on which EPA actually made 

the determination. The Court rejected 

this view, stating that applying it 

‘‘would likely impose large costs on 

states, which would face fines and suits 

for not implementing air pollution 

prevention plans . . . even though they 

were not on notice at the time.’’ Id. at 

68. Similarly, it would be unreasonable 

to penalize the state of Ohio by rejecting 

its redesignation request for an area that 

is already attaining the 1997 PM2.5

standard and that met all applicable 

requirements known to be in effect at 

the time of the request. For EPA now to 

reject the redesignation request solely 

because the state did not expressly 

address subpart 4 requirements of 

which it had no notice, would inflict the 

same unfairness condemned by the 

Court in Sierra Club v. Whitman. 

ii. Subpart 4 Requirements and Ohio 

Redesignation Request 

Even if EPA were to take the view that 

the Court’s January 4, 2013, decision 

requires that, in the context of pending 

redesignations, subpart 4 requirements 

were due and in effect at the time the 

state submitted its redesignation 

request, EPA proposes to determine that 

the Steubenville-Weirton area still 

qualifies for redesignation to attainment. 

As explained below, EPA believes that 

the redesignation request for the 

Steubenville-Weirton 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 Steubenville-Weirton area, EPA 

notes that subpart 4 incorporates 

components of subpart 1 of part D, 

which contains general air quality 

planning requirements for areas 

designated as nonattainment. See 

Section 172(c). Subpart 4 itself contains 

specific planning and scheduling 

requirements for PM10 4 nonattainment 

areas, and under the Court’s January 4, 

2013, decision in NRDC v. EPA, these 

same statutory requirements also apply 

for PM2.5 nonattainment areas. EPA has 

longstanding general guidance that 

interprets the 1990 amendments to the 

CAA, making recommendations to states 

for meeting the statutory requirements 

for SIPs for nonattainment areas. See, 

‘‘State Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clear Air Act Amendments 

of 1990,’’ 57 FR 13498 (April 16, 1992) 

(the ‘‘General Preamble’’). In the General 

Preamble, EPA discussed the 

relationship of subpart 1 and subpart 4 

SIP requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM–10 

requirements.’’ 57 FR 13538 (April 16, 

1992). The subpart 1 requirements 

include, among other things, provisions 

for attainment demonstrations, RACM, 

RFP, emissions inventories, and 

contingency measures. 

For the purposes of this redesignation, 

in order to identify any additional 

requirements which would apply under 

subpart 4, we are considering the 

Steubenville-Weirton area to be a 

‘‘moderate’’ PM2.5 nonattainment area. 

Under section 188 of the CAA, all areas 

designated nonattainment areas under 

subpart 4 would initially be classified 

by operation of law as ‘‘moderate’’ 

nonattainment areas, and would remain 

moderate nonattainment areas unless 

and until EPA reclassifies the area as a 

‘‘serious’’ nonattainment area. 

Accordingly, EPA believes that it is 

appropriate to limit the evaluation of 

the potential impact of subpart 4 

requirements to those that would be 

applicable to moderate nonattainment 

areas. Sections 189(a) and (c) of subpart 

4 apply to moderate nonattainment 

areas and include the following: (1) An 

approved permit program for 

construction of new and modified major 

stationary sources (section 189(a)(1)(A)); 

(2) an attainment demonstration (section 

189(a)(1)(B)); (3) provisions for RACM 

(section 189(a)(1)(C)); and (4) 

quantitative milestones demonstrating 

RFP toward attainment by the 

applicable attainment date (section 

189(c)). 

The permit requirements of subpart 4, 

as contained in section 189(a)(1)(A), 

refer to and apply the subpart 1 permit 

provisions requirements of sections 172 

and 173 to PM10, without adding to 

them. Consequently, EPA believes that 

section 189(a)(1)(A) does not itself 

impose for redesignation purposes any 

additional requirements for moderate 

areas beyond those contained in subpart 

1.5 In any event, in the context of 

redesignation, EPA has long relied on 

the interpretation that a fully approved 

nonattainment new source review 

program is not considered an applicable 

requirement for redesignation, provided 

the area can maintain the standard with 

a PSD program after redesignation. A 

detailed rationale for this view is 

described in a memorandum from Mary 

Nichols, Assistant Administrator for Air 

and Radiation, dated October 14, 1994, 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ See also 

rulemakings for Detroit, Michigan (60 

FR 12467–12468, March 7, 1995); 

Cleveland-Akron-Lorain, Ohio (61 FR 

20458, 20469–20470, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

October 23, 2001); and Grand Rapids, 

Michigan (61 FR 31834–31837, June 21, 

1996). 

With respect to the specific 

attainment planning requirements under 

subpart 4,6 when EPA evaluates a 

redesignation request under either 

subpart 1 and/or 4, any area that is 

attaining the PM2.5 standard is viewed 

as having satisfied the attainment 

planning requirements for these 

subparts. For redesignations, EPA has 

for many years interpreted attainmentlinked 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. 

‘‘General Preamble for the Interpretation 

of Title I of the CAA Amendments of 

1990’’; (57 FR 13498, 13564, April 16, 

1992). 

The General Preamble also explained 

that 

[t]he section 172(c)(9) requirements are 

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply when an area has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans . . . provides specific requirements for 

contingency measures that effectively 


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7As EPA has explained above, we do not believe 

that the Court’s January 4, 2013 decision should be 

interpreted so as to impose these requirements on 

the states retroactively. Sierra Club v. Whitman, 

supra. 

8Under either subpart 1 or subpart 4, for 

purposes of demonstrating attainment as 

Continued 

supersede the requirements of section 

172(c)(9) for these areas. Id. 

EPA similarly stated in its 1992 

Calcagni memorandum that, ‘‘The 

requirements for reasonable further 

progress and other measures needed for 

attainment will not apply for 

redesignations because they only have 

meaning for areas not attaining the 

standard.’’ 

It is evident that even if we were to 

consider the Court’s January 4, 2013, 

decision in NRDC v. EPA to mean that 

attainment-related requirements specific 

to subpart 4 should be imposed 

retroactively 7 and thus are now past 

due, those requirements do not apply to 

an area that is attaining the 1997 and 

2006 PM2.5 standard, for the purpose of 

evaluating a pending request to 

redesignate the area to attainment. EPA 

has consistently enunciated this 

interpretation of applicable 

requirements under section 107(d)(3)(E) 

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 standard. 

EPA’s prior ‘‘Clean Data Policy’’ 

rulemakings for the PM10 NAAQS, also 

governed by the requirements of subpart 

4, explain EPA’s reasoning. They 

describe the effects of a determination of 

attainment on the attainment-related SIP 

planning requirements of subpart 4. See 

‘‘Determination of Attainment for Coso 

Junction Nonattainment Area,’’ (75 FR 

27944, May 19, 2010). See also Coso 

Junction proposed PM10 redesignation, 

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

Proposed and Final Determinations of 

Attainment for San Joaquin 

Nonattainment Area (71 FR 40952, 

40954–55, July 19, 2006; and 71 FR 

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

short, EPA in this context has also long 

concluded that to require states to meet 

superfluous SIP planning requirements 

is not necessary and not required by the 

CAA, so long as those areas continue to 

attain the relevant NAAQS. 

Elsewhere in this notice, EPA 

proposes to determine that the area has 

attained the 1997 and 2006 PM2.5

standards. Under its longstanding 

interpretation, EPA is proposing to 

determine here that the area meets the 

attainment-related plan requirements of 

subparts 1 and 4. 

Thus, EPA is proposing to conclude 

that the requirements to submit an 

attainment demonstration under 

189(a)(1)(B), a RACM determination 

under section 172(c)1 and section 

189(a)(1)(c), a RFP demonstration under 

189(c)(1), and contingency measure 

requirements under section 172(c)(9) are 

satisfied for purposes of evaluating the 

redesignation request. 

iii. Subpart 4 and Control of PM2.5

Precursors 

The D.C. Circuit in NRDC v. EPA 

remanded to EPA the two rules at issue 

in the case with instructions to EPA to 

re-promulgate them consistent with the 

requirements of subpart 4. EPA in this 

section addresses the Court’s opinion 

with respect to PM2.5 precursors. While 

past implementation of subpart 4 for 

PM10 has allowed for control of PM10

precursors such as NOX from major 

stationary, mobile, and area sources in 

order to attain the standard as 

expeditiously as practicable, CAA 

section 189(e) specifically provides that 

control requirements for major 

stationary sources of direct PM10 shall 

also apply to PM10 precursors from 

those sources, except where EPA 

determines that major stationary sources 

of such precursors ‘‘do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ 

EPA’s 1997 PM2.5 implementation 

rule, remanded by the DC Circuit, 

contained rebuttable presumptions 

concerning certain PM2.5 precursors 

applicable to attainment plans and 

control measures related to those plans. 

Specifically, in 40 CFR 51.1002, EPA 

provided, among other things, that a 

state was ‘‘not required to address VOC 

[and ammonia] as . . . PM2.5 attainment 

plan precursor[s] and to evaluate 

sources of VOC [and ammonia] 

emissions in the State for control 

measures.’’ EPA intended these to be 

rebuttable presumptions. EPA 

established these presumptions at the 

time because of uncertainties regarding 

the emission inventories for these 

pollutants and the effectiveness of 

specific control measures in various 

regions of the country in reducing PM2.5

concentrations. EPA also left open the 

possibility for such regulation of VOC 

and ammonia in specific areas where 

that was necessary. 

The Court in its January 4, 2013, 

decision made reference to both section 

189(e) and 40 CFR 51. 1002, and stated 

that, ‘‘In light of our disposition, we 

need not address the petitioners’ 

challenge to the presumptions in [40 

CFR 51.1002] that volatile organic 

compounds and ammonia are not PM2.5

precursors, as subpart 4 expressly 

governs precursor presumptions.’’ 

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

Elsewhere in the Court’s opinion, 

however, the Court observed: 

Ammonia is a precursor to fine particulate 

matter, making it a precursor to both PM2.5

and PM10. For a PM10 nonattainment area 

governed by subpart 4, a precursor is 

presumptively regulated. See 42 U.S.C. 

§ 7513a(e) [section 189(e)].Id. at 21, n.7. 

For a number of reasons, EPA believes 

that its proposed redesignation of the 

Steubenville-Weirton area is consistent 

with the Court’s decision on this aspect 

of subpart 4. First, while the Court, 

citing section 189(e), stated that ‘‘for a 

PM10 area governed by subpart 4, a 

precursor is ‘presumptively regulated,’’’ 

the Court expressly declined to decide 

the specific challenge to EPA’s 1997 

PM2.5 implementation rule provisions 

regarding ammonia and VOC as 

precursors. The Court had no occasion 

to reach whether and how it was 

substantively necessary to regulate any 

specific precursor in a particular PM2.5

nonattainment area, and did not address 

what might be necessary for purposes of 

acting upon a redesignation request. 

However, even if EPA takes the view 

that the requirements of subpart 4 were 

deemed applicable at the time the state 

submitted the redesignation request, 

and disregards the implementation 

rule’s rebuttable presumptions regarding 

ammonia and VOC as PM2.5 precursors, 

(and any similar provisions reflected in 

the guidance for the 2006 PM2.5

standard) the regulatory consequence 

would be to consider the need for 

regulation of all precursors from any 

sources in the area to demonstrate 

attainment and to apply the section 

189(e) provisions to major stationary 

sources of precursors. In the case of 

Steubenville-Weirton, EPA believes that 

doing so is consistent with proposing 

redesignation of the area for the 1997 

PM2.5 standard. The SteubenvilleWeirton area has attained both 

standards without any specific 

additional controls of VOC and 

ammonia emissions from any sources in 

the area. 

Precursors in subpart 4 are 

specifically regulated under the 

provisions of section 189(e), which 

requires, with important exceptions, 

control requirements for major 

stationary sources of PM10 precursors.8


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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 Steubenville-Weirton area has reduced VOC 

emissions through the implementation of various 

SIP approved VOC control programs and various 

on-road and nonroad motor vehicle control 

programs. 

10See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans for California—San Joaquin 

Valley PM–10 Nonattainment Area; Serious Area 

Plan for Nonattainment of the 24-Hour and Annual 

PM–10 Standards,’’ 69 FR 30006 (May 26, 2004) 

(approving a PM10 attainment plan that impose 

controls on direct PM10 and NOX emissions and did 

not impose controls on SO2, VOC, or ammonia 

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

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

Under subpart 1 and EPA’s prior 

implementation rule, all major 

stationary sources of PM2.5 precursors 

were subject to regulation, with the 

exception of ammonia and VOC. Thus 

we must address here whether 

additional controls of ammonia and 

VOC from major stationary sources are 

required under section 189(e) of subpart 

4 in order to redesignate the area for the 

1997 PM2.5 standard. As explained 

below, we do not believe that any 

additional controls of ammonia and 

VOC are required in the context of this 

redesignation. 

In the General Preamble, EPA 

discusses its approach to implementing 

section 189(e). See 57 FR 13538–13542. 

With regard to precursor regulation 

under section 189(e), the General 

Preamble explicitly stated that control 

of VOCs under other Act requirements 

may suffice to relieve a state from the 

need to adopt precursor controls under 

section 189(e) (57 FR 13542). EPA in 

this proposal proposes to determine that 

the SIP has met the provisions of section 

189(e) with respect to ammonia and 

VOCs as precursors. This proposed 

determination is based on our findings 

that (1) the Steubenville-Weirton 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 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 PM2.5

standard in the Steubenville-Weirton 

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 of the 1997 PM2.5 NAAQS. 

By contrast, redesignation to attainment 

primarily requires the area to have 

already attained due to permanent and 

enforceable emission reductions, and to 

demonstrate that controls in place can 

continue to maintain the standard. 

Thus, even if we regard the Court’s 

January 4, 2013, decision as calling for 

‘‘presumptive regulation’’ of ammonia 

and VOC for PM2.5 under the attainment 

planning provisions of subpart 4, those 

provisions in and of themselves do not 

require additional controls of these 

precursors for an area that already 

qualifies for redesignation. Nor does 

EPA believe that requiring Ohio to 

address precursors differently than they 

have already would result in a 

substantively different outcome. 

Although, as EPA has emphasized, its 

consideration here of precursor 

requirements under subpart 4 is in the 

context of a redesignation to attainment, 

EPA’s existing interpretation of subpart 

4 requirements with respect to 

precursors in attainment plans for PM10

contemplates that states may develop 

attainment plans that regulate only 

those precursors that are necessary for 

purposes of attainment in the area in 

question, i.e., states may determine that 

only certain precursors need be 

regulated for attainment and control 

purposes.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 SteubenvilleWeirton area has already attained the 

1997 and 2006 PM2.5 NAAQS with its 

current approach to regulation of PM2.5

precursors, EPA believes that it is 

reasonable to conclude in the context of 

this redesignation that there is no need 

to revisit the attainment control strategy 

with respect to the treatment of 

precursors. Even if the Court’s decision 

is construed to impose an obligation, in 

evaluating this redesignation request, to 

consider additional precursors under 

subpart 4, it would not affect EPA’s 

approval here of Ohio’s request for 

redesignation of the SteubenvilleWeirton area. In the context of a 

redesignation, the area has shown that 

it has attained both standards. 

Moreover, the state has shown and EPA 

is proposing to determine that 

attainment in this area is due to 

permanent and enforceable emissions 

reductions on all precursors necessary 

to provide for continued attainment. It 

follows logically that no further control 

of additional precursors is necessary. 

Accordingly, EPA does not view the 

January 4, 2013, decision of the Court as 

precluding redesignation of the 

Steubenville-Weirton area to attainment 

for the 1997 PM2.5 NAAQS at this time. 

In sum, even if Ohio were required to 

address precursors for the SteubenvilleWeirton area under subpart 4 rather 

than under subpart 1, as interpreted in 

EPA’s remanded PM2.5 implementation 

rule, EPA would still conclude that the 

area had met all applicable 

requirements for purposes of 

redesignation in accordance with 

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

b. The Ohio Portion of the SteubenvilleWeirton Area Has a Fully Approved 

Applicable SIP Under Section 110(k) of 

the CAA 

Upon final approval of Ohio’s 

comprehensive 2005 and 2008 

emissions inventories, EPA will have 

fully approved the Ohio SIP for the 

Ohio portion of the SteubenvilleWeirton area under section 110(k) of the 

CAA for all requirements applicable for 

purposes of redesignation to attainment 

for the 1997 annual and 2006 24-hour 

PM2.5 standard. EPA may rely on prior 

SIP approvals in approving a 

redesignation request (See page 3 of the 

Calcagni Memorandum; Southwestern 

Pennsylvania Growth Alliance v. 

Browner, 144 F.3d 984, 989–990 (6th 

Cir. 1998); Wall v. EPA, 265 F.3d 426 

(6th Cir. 2001)), plus any additional 

measures it may approve in conjunction 

with a redesignation action. See 68 FR 

25413, 25426 (May 12, 2003). Since the 

passage of the CAA of 1970, Ohio has 

adopted and submitted, and EPA has 

fully approved, provisions addressing 

various required SIP elements under 

particulate matter standards. In this 

action, EPA is proposing to approve 

Ohio’s 2005 and 2008 base year 

emissions inventories for the 

Steubenville-Weirton area as meeting 

the requirement of section 172(c)(3) of 

the CAA for the 1997 annual and 2006 

24-hour PM2.5 standard. 

c. Nonattainment Requirements 

Under section 172, states with 

nonattainment areas must submit plans 

providing for timely attainment and 

meeting a variety of other requirements. 

On July 16, 2008, Ohio submitted a 

state-wide attainment demonstration for 

PM2.5, including the SteubenvilleWeirton area. However, EPA’s 

determination that the area attained the 

1997 PM2.5 annual and 2006 24-hour 

standards (76 FR 56641; 77 FR 28264, 

respectively) suspended the 


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requirement to submit certain planning 

SIPs related to attainment, including 

attainment demonstration requirements, 

the Reasonably Achievable Control 

Technology (RACT)-RACM requirement 

of section 172(c)(1) of the CAA, the RFP 

and attainment demonstration 

requirements of sections 172(c)(2) and 

(6) and 182(b)(1) of the CAA and the 

requirement for contingency measures 

of section 172(c)(9) of the CAA). 

As a result, the only remaining 

requirement under section 172 to be 

considered is the emissions inventory 

required under section 172(c)(3). As 

discussed in a later section, EPA is 

proposing to approve the inventory that 

Ohio submitted as part of its 

maintenance plan as satisfying this 

requirement. 

No SIP provisions applicable for 

redesignation of the Ohio portion of the 

Steubenville-Weirton area are currently 

disapproved, conditionally approved or 

partially approved. If EPA approves 

Ohio’s Steubenville-Weirton area PM2.5

emissions inventories as proposed, Ohio 

will have a fully approved SIP for all 

requirements applicable for purposes of 

redesignation. 

3. The Improvement in Air Quality Is 

Due to Permanent and Enforceable 

Reductions in Emissions Resulting From 

Implementation of the SIP and 

Applicable Federal Air Pollution 

Control Regulations and Other 

Permanent and Enforceable Reductions 

(Section 107(d)(3)(E)(iii)) 

EPA believes that Ohio has 

demonstrated that the observed air 

quality improvement in the 

Steubenville-Weirton area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP, Federal 

measures and other state-adopted 

measures. 

In making this demonstration, Ohio 

has calculated the change in emissions 

between 2005, one of the years used to 

designate the Steubenville-Weirton area 

as nonattainment, and 2008, one of the 

years the Steubenville-Weirton area 

monitored attainment. The reduction in 

emissions and the corresponding 

improvement in air quality over this 

time period can be attributed to a 

number of regulatory control measures 

that the Steubenville-Weirton area and 

contributing areas have implemented in 

recent years. 

a. Permanent and Enforceable Controls 

Implemented 

The following is a discussion of 

permanent and enforceable measures 

that have been implemented in the area: 

i. Federal Emission Control Measures 

Reductions in fine particle precursor 

emissions have occurred statewide and 

in upwind areas as a result of Federal 

emission control measures, with 

additional emission reductions expected 

to occur in the future. Federal emission 

control measures include the following. 

Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards. 

These emission control requirements 

result in lower NOX and SO2 emissions 

from new cars and light duty trucks. 

The Federal rules were phased in 

between 2004 and 2009. By the end of 

the phase-in period, new vehicles were 

emitting the following percentages less 

NOX: Passenger cars (light duty 

vehicles)—77%; light duty trucks, 

minivans, and sports utility vehicles— 

86%; and, larger sports utility vehicles, 

vans, and heavier trucks—69% to 95%. 

EPA expects fleet wide average 

emissions to come 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. Most gasoline sold in 

Ohio prior to January 2006 had a sulfur 

content of about 500 ppm. 

Heavy-Duty Diesel Engine Rule. EPA 

issued this rule in July 2000. This rule 

includes standards limiting the sulfur 

content of diesel fuel, which went into 

effect in 2004. A second phase took 

effect in 2007 which reduced fine 

particle emissions from heavy-duty 

highway engines and further reduced 

the highway diesel fuel sulfur content to 

15 ppm. The total program is estimated 

to achieve a 90% reduction in direct 

PM2.5 emissions and a 95% reduction in 

NOX emissions for these new engines 

using low sulfur diesel, compared to 

existing engines using higher sulfur 

content diesel. The reduction in fuel 

sulfur content also yielded an 

immediate reduction in sulfate particle 

emissions from all diesel vehicles. 

Nonroad Diesel Rule. In May 2004, 

EPA promulgated a new rule for large 

nonroad diesel engines, such as those 

used construction, agriculture and 

mining equipment, to be phased in 

between 2008 and 2014. 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. This 

rule limited nonroad diesel sulfur 

content to 500 ppm by 2006, with a 

further reduction to 15 ppm by 2010. 

The combined engine and fuel rules will 

reduce NOX and PM emissions from 

large nonroad diesel engines by over 

90%, compared to current nonroad 

engines using higher sulfur content 

diesel. It is estimated that compliance 

with this rule will cut NOX emissions 

from nonroad diesel engines by up to 

90%. This rule achieved some emission 

reductions by 2008 and was fully 

implemented by 2010. The reduction in 

fuel sulfur content also yielded an 

immediate reduction in sulfate particle 

emissions from all diesel vehicles. 

Nonroad Large Spark-Ignition Engine 

and Recreational Engine Standards. In 

November 2002 EPA promulgated 

emission standards for groups of 

previously unregulated nonroad 

engines. These engines include large 

spark-ignition engines such as those 

used in forklifts and airport groundservice equipment; recreational vehicles 

using spark-ignition engines such as offhighway 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 are being 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 expected by 2020. Some of these 

emission reductions occurred by the 

2008–2010 period used to demonstrate 

attainment, and additional emission 

reductions will occur during the 

maintenance period. 

i. Control Measures in Contributing 

Areas 

Given the significance of sulfates and 

nitrates in the Steubenville-Weirton 

area, the area’s air quality is strongly 

affected by regulation of SO2 and NOX

emissions from power plants. 

NOX SIP Call. On October 27, 1998 

(63 FR 57356), EPA issued a NOX SIP 

Call requiring the District of Columbia 

and 22 states to reduce emissions of 

NOX. Affected states were required to 

comply with Phase I of the SIP Call 

beginning in 2004, and Phase II 

beginning in 2007. Emission reductions 

resulting from regulations developed in 

response to the NOX SIP Call are 

permanent and enforceable. 

CAIR. On May 12, 2005, EPA 

published CAIR, which requires 

significant reductions in emissions of 

SO2 and NOX from electric generating 

units to limit the interstate transport of 

these pollutants and the ozone and fine 

particulate matter they form in the 

atmosphere. See 76 FR 70093. The D.C. 

Circuit initially issued an opinion for 

vacating 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 


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12Periodic emission inventories are derived by 

states every three years and reported to the EPA. 

These periodic emission inventories are required by 

the Federal Consolidated Emissions Reporting Rule, 

codified at 40 CFR Subpart A. EPA revised these 

and other emission reporting requirements in a final 

rule published on December 17, 2008, at 73 FR 

76539. 

environmental benefits provided by 

CAIR, North Carolina v. EPA, 550 F.3d 

1176, 1178 (D.C. Cir. 2008). 

EPA recently promulgated CSAPR (76 

FR 48208, August 8, 2011), to replace 

CAIR, which has been in place since 

2005. See 76 FR 59517. 

On December 30, 2011, the D.C. 

Circuit issued an order addressing the 

status of CSAPR and CAIR in response 

to motions filed by numerous parties 

seeking a stay of CSAPR pending 

judicial review. In that order, the Court 

stayed CSAPR pending resolution of the 

petitions for review of that rule in EME 

Homer City Generation, L.P. v. EPA (No. 

11–1302 and consolidated cases). The 

Court also indicated that EPA was 

expected to continue to administer 

CAIR in the interim until judicial 

review of CSAPR was completed. 

On August 21, 2012, the D.C. Circuit 

issued a decision to vacate CSAPR. In 

that decision, it also ordered EPA to 

continue administering CAIR ‘‘pending 

the promulgation of a valid 

replacement.’’ EME Homer City, 696 

F.3d at 38. The D.C. Circuit denied all 

petitions for rehearing on January 24, 

2013. EPA and other parties have filed 

petitions for certiorari to the U.S. 

Supreme Court, but those petitions have 

not been acted on to date. Nonetheless, 

EPA intends to continue to act in 

accordance with the EME Homer City 

opinion. 

In light of these unique circumstances 

and for the reasons explained below, 

EPA proposes to approve the 

redesignation request and the related 

SIP revision for the Ohio portion of the 

Steubenville-Weirton area, including 

Ohio’s plan for maintaining attainment 

of the PM2.5 standard. The air quality 

modeling analysis conducted for CSAPR 

demonstrates that the SteubenvilleWeirton area would be able to attain the 

PM2.5 standard even in the absence of 

either CAIR or CSAPR. See ‘‘Air Quality 

Modeling Final Rule Technical Support 

Document,’’ App. B, B–62 to B–134. 

This modeling is available in the docket 

for this proposed redesignation action. 

In addition, CAIR remains in place 

and enforceable until substituted by a 

valid replacement rule. Ohio’s CAIR SIP 

was approved on September 25, 2009 

(74 FR 48857). As a result of CAIR, EPA 

projected that Ohio’s 2009 electric 

generating unit (EGU) emissions of NOX

would decrease from a baseline of 

264,000 tons per year (tpy) to 93,000 tpy 

while in 2010 emissions of SO2 would 

decrease from a baseline of 1,373,000 

tpy to 298,000 tpy. And by 2015, we 

projected emissions of NOX would 

decrease to 83,000 tpy while emissions 

of SO2 would decrease to 208,000 tpy 

within Ohio (http://www.epa.gov/CAIR/ 

oh.html). The monitoring data used to 

demonstrate the area’s attainment of the 

1997 annual and 2006 24-hour PM2.5

NAAQS by the April 2010 attainment 

deadline was impacted by CAIR. 

To the extent that Ohio is relying on 

CAIR in its maintenance plan, the 

directive from the D.C. Circuit in EME 

Homer City ensures that the reductions 

associated with CAIR will be permanent 

and enforceable for the necessary time 

period. EPA has been ordered by the 

Court to develop a new rule to address 

interstate transport to replace CSAPR 

and the opinion makes clear that after 

promulgating that new rule EPA must 

provide states an opportunity to draft 

and submit SIPs to implement that rule. 

Thus, CAIR will remain in place until 

EPA has promulgated a final rule 

through a notice-and-comment 

rulemaking process, states have had an 

opportunity to draft and submit SIPs, 

EPA has reviewed the SIPs to determine 

if they can be approved, and EPA has 

taken action on the SIPs, including 

promulgating a FIP if appropriate. The 

Court’s clear instruction to EPA that it 

must continue to administer CAIR until 

a valid replacement exists provides an 

additional backstop: By definition, any 

rule that replaces CAIR and meets the 

Court’s direction would require upwind 

states to have SIPs that eliminate 

significant contributions to downwind 

nonattainment and prevent interference 

with maintenance in downwind areas. 

Further, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the D.C. Circuit emphasized that 

the consequences of vacating CAIR 

‘‘might be more severe now in light of 

the reliance interests accumulated over 

the intervening four years.’’ EME Homer 

City, 696 F.3d at 38. The accumulated 

reliance interests include the interests of 

states who reasonably assumed they 

could rely on reductions associated with 

CAIR which brought certain 

nonattainment areas into attainment 

with the NAAQS. If EPA were 

prevented from relying on reductions 

associated with CAIR in redesignation 

actions, states would be forced to 

impose additional, redundant 

reductions on top of those achieved by 

CAIR. EPA believes this is precisely the 

type of irrational result the Court sought 

to avoid by ordering EPA to continue 

administering CAIR. For these reasons 

also, EPA believes it is appropriate to 

allow states to rely on CAIR, and the 

existing emissions reductions achieved 

by CAIR, as sufficiently permanent and 

enforceable for purposes such as 

redesignation. Following promulgation 

of the replacement rule, EPA will 

review SIPs as appropriate to identify 

whether there are any issues that need 

to be addressed. 

iii. Consent Decrees 

A Federal consent decree with Ohio 

Edison Company, W.H. Sammis Power 

Station in 2005, and then a 2009 

modification, results in reductions from 

2009 levels of SO2 emissions of 14,000 

tpy; for NOX, 1,300 tpy; and for PM2.5

700 tpy. In 2007, a Federal consent 

decree was signed for the American 

Electric Power Service Corp., which 

required the Cardinal Power Plant in 

Ohio to install selective catalytic 

reduction (SCR) controls on three 

boilers in 2009, and flue-gas 

desulfurization (FGD) for SO2 control in 

2008 and 2012, and a new PM emissions 

rate for two boilers in 2009. 

b. Emission Reductions 

Ohio developed emissions inventories 

for NOX, direct PM2.5 and SO2 for 2005, 

one of the years used to designate the 

area as nonattainment, and 2008, one of 

the years the Steubenville-Weirton area 

monitored attainment of the standard. 

Point source EGU SO2 and NOX

emissions were derived from EPA’s 

Clean Air Market’s acid rain database. 

These emissions reflect Ohio and West 

Virginia NOX emission budgets resulting 

from EPA’s NOX SIP call. The 2008 

emissions from EGUs reflect Ohio’s 

emission caps under CAIR. All other 

point source emissions were obtained 

from Ohio’s source facility emissions 

reporting. 

Area source emissions for the 

Steubenville-Weirton area for 2005 were 

taken from periodic emissions 

inventories.12 These 2005 area source 

emission estimates were extrapolated to 

2008. Source growth factors were 

supplied by the Lake Michigan Air 

Directors Consortium (LADCO). 

Nonroad mobile source emissions 

were extrapolated from nonroad mobile 

source emissions reported in EPA’s 

2005 National Emissions Inventory 

(NEI). Contractors were employed by 

LADCO to estimate emissions for 

commercial marine vessels and 

railroads. 

On-road mobile source emissions 

were calculated using EPA’s mobile 

source emission factor model, 

MOVES2010a, in conjunction with 

transportation model results developed 

by the Brooke-Hancock-Jefferson 


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Metropolitan Planning Commission 

(BHJ). 

All emissions estimates discussed 

below were documented in the 

submittal and appendices of Ohio’s 

redesignation request submittal from 

April 16, 2012, and theApril 30, 2013, 

supplemental submittal. For these data 

and additional emissions inventory 

data, the reader is referred to EPA’s 

digital docket for this rule, http:// 

www.regulations.gov, which includes 

digital copies of Ohio’s submittal. 

Emissions data in tpy for the Ohio 

portion of the Steubenville-Weirton area 

are shown in Tables 2 and 3, below. 

TABLE 2—SUMMARY OF 2005 EMISSIONS FOR THE OHIO PORTION OF THE STEUBENVILLE-WEIRTON AREA BY SOURCE

TYPE

[tpy] 

SO2 NOX PM2.5

Point (EGU) ................................................................................................................... 225,594.94 41,046 .61 1,307.90 

Non-EGU ....................................................................................................................... 849.92 1,991 .85 461.57 

On-road .......................................................................................................................... 18.18 2,105 .85 73.17 

Nonroad ......................................................................................................................... 17.31 234 .30 24.30 

Area ............................................................................................................................... 110.89 251 .38 110.12 

MAR ............................................................................................................................... 26.16 317 .3 8.07 

Total Steubenville-Weirton ..................................................................................... 226,617.40 45,947 .29 1,985.13 

TABLE 3—SUMMARY OF 2007 BASE YEAR EMISSIONS OF AMMONIA AND VOCS FOR THE OHIO PORTION OF THE

STEUBENVILLE-WEIRTON AREA BY SOURCE TYPE

[tpy] 

Ammonia VOC 

Point ......................................................................................................................................................................... 11.53 448.96 

Area ......................................................................................................................................................................... 204.47 914.14 

Nonroad ................................................................................................................................................................... 0.41 480.78 

On-road .................................................................................................................................................................... 37.73 940.29 

Total .................................................................................................................................................................. 254.14 2784.17 

TABLE 4—COMPARISON OF 2005 EMISSIONS FROM THE NONATTAINMENT YEAR AND 2008 EMISSIONS FOR AN

ATTAINMENT YEAR FOR THE ENTIRE STEUBENVILLE-WEIRTON AREA

[tpy] 

2005 2008 Net change 

(2005–2008) 

PM2.5 ................................................................................................................................ 2,946.39 2,813.98 ¥132.41 

NOX .................................................................................................................................. 52,083.06 43,349.31 ¥8,733.75 

SO2 .................................................................................................................................. 229,703.73 138,266.82 ¥91,436.91 

Table 4 shows that the entire 

Steubenville-Weirton area shows a 

decrease in direct PM2.5 emissions by 

132.41 tons, the area reduced NOX

emissions by 8,733.75 tons and SO2

emissions by 91,436.91 tons between 

2005, a nonattainment year, and 2008, 

an attainment year. 

Based on the information summarized 

above, Ohio has adequately 

demonstrated that the improvement in 

air quality is due to permanent and 

enforceable emissions reductions. 

4. Ohio Has a Fully Approved 

Maintenance Plan Pursuant to Section 

175A of the CAA (Section 

107(d)(3)(E)(iv)) 

In conjunction with Ohio’s request to 

redesignate the Ohio portion of the 

Steubenville-Weirton nonattainment 

area to attainment status, Ohio has 

submitted a SIP revision to provide for 

maintenance of the 1997 annual and 

2006 24-hour PM2.5 NAAQS in the area 

through 2025. 

a. What is required in a maintenance 

plan? 

Section 175A of the CAA sets forth 

the required elements of a maintenance 

plan for areas seeking redesignation 

from nonattainment to attainment. 

Under section 175A, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least ten 

years after EPA approves a 

redesignation to attainment. Eight years 

after redesignation, the state must 

submit a revised maintenance plan 

which demonstrates that attainment will 

continue to be maintained for ten years 

following the initial ten year 

maintenance period. To address the 

possibility of future NAAQS violations, 

the maintenance plan must contain 

contingency measures with a schedule 

for implementation as EPA deems 

necessary to assure prompt correction of 

any future annual PM2.5 violations. 

The Calcagni Memorandum provides 

additional guidance on the content of a 

maintenance plan. The memorandum 

states that a maintenance plan should 

address the following items: The 

attainment emissions inventories, a 

maintenance demonstration showing 

maintenance for the ten years of the 

maintenance period, a commitment to 

maintain the existing monitoring 

network, factors and procedures to be 

used for verification of continued 

attainment of the NAAQS and a 

contingency plan to prevent or correct 

future violations of the NAAQS. 


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b. Attainment Inventory 

Ohio developed emissions inventories 

for NOX, direct PM2.5 and SO2 for 2008, 

one of the years in the period during 

which the Steubenville-Weirton area 

monitored attainment of the 1997 

annual and 2006 24-hour PM2.5

standard, as described previously. The 

attainment levels of emissions for the 

entire area are summarized in Tables 3, 

above. 

c. Demonstration of Maintenance 

Along with the redesignation request, 

Ohio submitted a revision to its PM2.5

SIP to include a maintenance plan for 

the Steubenville-Weirton area, as 

required by section 175A of the CAA. 

Section 175A requires a State seeking 

redesignation to attainment to submit a 

SIP revision to provide for the 

maintenance of the NAAQS in the area 

‘‘for at least 10 years after the 

redesignation.’’ EPA has interpreted this 

as a showing of maintenance ‘‘for a 

period of ten years following 

redesignation.’’ Calcagni Memorandum, 

p. 9. Where the emissions inventory 

method of showing maintenance is 

used, its purpose is to show that 

emissions during the maintenance 

period will not increase over the 

attainment year inventory. Calcagni 

Memorandum, pp. 9–10. 

Ohio’s submission uses emissions 

inventory projections for the years 2015 

and 2025 to demonstrate maintenance 

for the entire Steubenville-Weirton area. 

The projected emissions were estimated 

by Ohio, with assistance from LADCO 

and BHJ using the MOVES2010a model. 

Projection modeling of inventory 

emissions was done for the 2015 interim 

year emissions using estimates based on 

the 2009 and 2018 LADCO modeling 

inventory, using LADCO’s growth 

factors, for all sectors. The 2025 

maintenance year is based on emissions 

estimates from the 2018 LADCO 

modeling. Table 4 shows the 2008 

attainment base year emission estimates 

and the 2015 and 2025 emission 

projections for the entire SteubenvilleWeirton area that Ohio provided in its 

April 16, 2012, submission. 

TABLE 4—COMPARISON OF 2008, 2015 AND 2025 NOX, DIRECT PM2.5 AND SO2 EMISSION TOTALS (TPY) FOR THE

ENTIRE STEUBENVILLE-WEIRTON AREA

SO2 NOX PM2.5

2008 (baseline) ................................................................................................................... 138,266.82 ....... 43,349.31 ......... 2,813.98. 

2015 .................................................................................................................................... 74,806.60 ......... 25,263.36 ......... 2,740.52. 

2025 .................................................................................................................................... 47,445.58 ......... 17,533.17 ......... 2,698.00. 

Change 2008–2025 ............................................................................................................ ¥90,821.24 ......

66% decrease ..

¥25,816.14 ......

60% decrease ..

¥115.98. 

4% decrease. 

Table 4 shows that the entire 

Steubenville-Weirton area reduced NOX

emissions by 25,816.14 tpy between 

2008 and the maintenance projection to 

2025, direct PM2.5 emissions by 115.98 

tpy, and reduced SO2 emissions by 

90,821.24 tpy between 2008 and 2025. 

Maintenance Plan Evaluation of 

Ammonia and VOCs 

With regard to the redesignation of 

the Steubenville-Weirton area, in 

evaluating the effect of the Court’s 

remand of EPA’s implementation rule, 

which included presumptions against 

consideration of VOC and ammonia as 

PM2.5 precursors, EPA in this proposal 

is also considering the impact of the 

decision on the maintenance plan 

required under sections 175A and 

107(d)(3)(E)(iv). To begin with, EPA 

notes that the area has attained the 1997 

and 2006 PM2.5 standard and that the 

state has shown that attainment of those 

standards is due to permanent and 

enforceable emission reductions. 

EPA proposes to determine that the 

state’s maintenance plan shows 

continued maintenance of the standard 

by tracking the levels of the precursors 

whose control brought about attainment 

of the 1997 and 2006 PM2.5 standard in 

the Steubenville-Weirton area. EPA 

therefore believes that the only 

additional consideration related to the 

maintenance plan requirements that 

results from the Court’s January 4, 2013, 

decision is that of assessing the 

potential role of VOC and ammonia in 

demonstrating continued maintenance 

in this area. As explained below, based 

upon documentation provided by the 

state and supporting information, EPA 

believes that the maintenance plan for 

the Steubenville-Weirton area need not 

include any additional emission 

reductions of VOC or ammonia in order 

to provide for continued maintenance of 

the standard. 

First, as noted above in EPA’s 

discussion of section 189(e), VOC 

emission levels in this area have 

historically been well-controlled under 

SIP requirements related to ozone and 

other pollutants. Second, total ammonia 

emissions throughout the SteubenvilleWeirton area are very low, estimated to 

be less than 500 tpy. See Table 5 below. 

This amount of ammonia emissions 

appears especially small in comparison 

to the total amounts of SO2, NOX, and 

even direct PM2.5 emissions from 

sources in the area. Third, as described 

below, available information shows that 

no precursor, including VOC and 

ammonia, is expected to increase over 

the maintenance period so as to 

interfere with or undermine the state’s 

maintenance demonstration. 

Ohio’s maintenance plan shows that 

there is a projected reduction of NOX

emissions by 25,816.14 tpy between 

2008 and the maintenance projection to 

2025, direct PM2.5 emissions of 115.98 

tpy, and reduced SO2 emissions of 

90,821.24 tpy between 2008 and 2025. 

See Table 4 above. In addition, 

emissions inventories used in EPA’s 

regulatory impact analysis (RIA) for the 

2012 PM2.5 NAAQS show that VOC 

emissions are projected to decrease by 

720 tpy, respectively between 2007 and 

2020. Ammonia emissions are projected 

to increase slightly between 2007 and 

2020 by 162 tpy, the overall emissions 

reductions projected in direct PM2.5,

SO2, and NOX would be sufficient to 

offset any increases. See Table 5 below. 

While the RIA emissions inventories are 

only projected out to 2020, there is no 

reason to believe that this downward 

trend would not continue through 2025. 

Given that the Steubenville-Weirton 

area is already attaining the 1997 annual 

and 2006 24-hour PM2.5 NAAQS even 

with the current level of emissions from 

sources in the area, the downward trend 

of emissions inventories would be 

consistent with continued attainment. 

Indeed, projected emissions reductions 

for the precursors that the state is 

addressing for purposes of the 1997 

PM2.5 NAAQS indicate that the area 

should continue to attain the NAAQS 

following the precursor control strategy 

that the state has already elected to 

pursue. Even if VOC and ammonia 

emissions were to increase 

unexpectedly between 2020 and 2025, 

the overall emissions reductions 

projected in direct PM2.5, SO2, and NOX


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13These emissions estimates were taken from the 

emissions inventories developed for the RIA for the 

2012 PM2.5 NAAQS which can be found in the 

docket. 

would be sufficient to offset any 

increases. For these reasons, EPA 

believes that local emissions of all of the 

potential PM2.5 precursors will not 

increase to the extent that they will 

cause monitored PM2.5 levels to violate 

the 1997 or the 2006 PM2.5 standard 

during the maintenance period. 

TABLE 5—COMPARISON OF 2007 AND 2020 VOC AND AMMONIA EMISSION TOTALS BY SOURCE SECTOR (TPY) FOR THE

STEUBENVILLE-WEIRTON AREA 13

Ammonia VOCs 

2007 2020 Net change 

2007–2020 2007 2020 Net change 2007–2020 

Point ................................................................................. 11.64 188.87 177.24 460.57 657.02 196.45 

Area .................................................................................. 195.94 196.65 0.71 858.74 875.13 16.40 

Nonroad ........................................................................... 0.41 0.45 0.04 464.43 237.02 ¥227.41 

On-road ............................................................................ 33.85 18.53 ¥15.31 1,096.33 389.98 ¥706.35 

Fires ................................................................................. 0.97 0.97 0.00 14.00 14.00 0.00 

Total .......................................................................... 242.81 405.48 162.67 2,894.06 2,173.15 ¥720.91 

In addition, available air quality 

modeling analyses show continued 

maintenance of the standard during the 

maintenance period. The current air 

quality design value for the area is 12.5 

and 29 mg/m3 (based on 2009–11 air 

quality data), which are well below the 

1997 annual and 2006 24-hour PM2.5

NAAQS of 15 and 35 mg/m3. Moreover, 

the modeling analysis conducted for the 

RIA for the 2012 PM2.5 NAAQS 

indicates that the design value for this 

area is expected to continue to decline 

through 2020. In the RIA analysis, the 

highest 2020 modeled design value for 

the Steubenville-Weirton area is 9.2 mg/ 

m3. Given that precursor emissions are 

projected to decrease through 2025, it is 

reasonable to conclude that monitored 

PM2.5 levels in this area will also 

continue to decrease through 2025. 

Thus, EPA believes that there is 

ample justification to conclude that the 

Steubenville-Weirton area should be 

redesignated, even taking into 

consideration the emissions of other 

precursors potentially relevant to PM2.5. 

After consideration of the D.C. Circuit’s 

January 4, 2013, decision, and for the 

reasons set forth in this notice, EPA 

proposes to approve the state’s 

maintenance plan and its request to 

redesignate the Steubenville-Weirton 

area to attainment for the PM2.5 1997 

annual and 2006 24-hour NAAQS. 

As described in section V(3)(b) of this 

action, the result of Federal rules and 

consent decree actions, demonstrate that 

the reductions from power plants in the 

Steubenville-Weirton area have 

occurred and are mandated to continue 

to occur in 2025 and beyond. Thus the 

emissions inventories set forth in Table 

4 show that the area will continue to 

maintain the annual PM2.5 standard 

during the maintenance period at least 

through 2025. These consent decree 

actions, along with other consent 

decrees in the area, are significant 

controls of NOX and SO2, along with 

implementation of Ohio’s SIP approved 

CAIR controls for the area. 

Based on the information summarized 

above, Ohio has adequately 

demonstrated maintenance of the PM2.5

standard in this area for a period 

extending in excess of ten years from 

expected final action on Ohio’s 

redesignation request. 

d. Monitoring Network 

Ohio’s plan includes a commitment to 

continue working with West Virginia to 

operate its EPA-approved monitoring 

network, as necessary to demonstrate 

ongoing compliance with the NAAQS. 

Ohio currently operates two PM2.5

monitors in the Ohio portion of the 

Steubenville-Weirton area. West 

Virginia currently operates three 

monitors in their portion of the 

Steubenville-Weirton area. 

e. Verification of Continued Attainment 

Ohio remains obligated to continue to 

quality-assure monitoring data and enter 

all data into the Air Quality System in 

accordance with Federal guidelines. 

Ohio will use these data, supplemented 

with additional information as 

necessary, to assure that the area 

continues to attain the standard. Ohio 

will also continue to develop and 

submit periodic emission inventories as 

required by the Federal Consolidated 

Emissions Reporting Rule (67 FR 39602, 

June 10, 2002) to track future levels of 

emissions. Both of these actions will 

help to verify continued attainment in 

accordance with 40 CFR part 58. 

f. Contingency Plan 

The contingency plan provisions are 

designed to promptly correct or prevent 

a violation of the NAAQS that might 

occur after redesignation of an area to 

attainment. Section 175A of the CAA 

requires that a maintenance plan 

include such contingency measures as 

EPA deems necessary to assure that the 

state will promptly correct a violation of 

the NAAQS that occurs after 

redesignation. The maintenance plan 

should identify the contingency 

measures to be adopted, a schedule and 

procedure for adoption and 

implementation of the contingency 

measures, and a time limit for action by 

the state. The state should also identify 

specific indicators to be used to 

determine when the contingency 

measures need to be adopted and 

implemented. The maintenance plan 

must include a requirement that the 

state will implement all measures with 

respect to control of the pollutant(s) that 

were contained in the SIP before 

redesignation of the area to attainment. 

See section 175A(d) of the CAA. Ohio’s 

contingency measures include a 

Warning Level Response and an Action 

Level Response. An initial Warning 

Level Response is triggered when the 

average weighted annual mean for one 

year exceeds 15.5 mg/m3. A warning 

level response for the 2006 24-hour 

standard shall be prompted whenever 

the 98th percentile 24-hour PM2.5

concentration of 35.5 mg/m3 occurs in a 

single calendar year within the 

maintenance area. In that case, a study 

will be conducted to determine if the 

emissions trends show increases; if 

action is necessary to reverse emissions 

increases, Ohio will follow the same 

procedures for control selection and 


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implementation as for an Action Level 

Response. 

The Action Level Response will be 

prompted by any one of the following: 

A Warning Level Response study that 

shows emissions increases, a weighted 

annual mean for the 1997 annual 

standard, or a 98th percentile for the 24- 

hour standard, over a two-year period 

that exceeds the standard or a violation 

of the standard. If an Action Level 

Response is triggered, Ohio will adopt 

and implement appropriate control 

measures within 12 months from the 

end of the year in which monitored air 

quality triggering a response occurs. 

Ohio’s candidate contingency 

measures include the following: 

i. Diesel emission reduction strategies; 

ii. Alternative fuels; 

iii. Statewide NOX RACT rules; 

iv. Impact crushers at recycle scrap 

yards using wet suppression; 

v. Tighter emission offsets for new 

and modified major sources; 

vi. ICI Boilers—SO2 and NOX

controls; 

vii. Emission controls for: 

a. Process heaters; 

b. EGUS; 

c. Internal combustion engines; 

d. Combustion turbines; 

e. Other sources > 100 TPY; 

f. Fleet vehicles; 

g. Concrete manufacturers and; 

h. Aggregate processing plants. 

Ohio further commits to conduct 

ongoing review of its data, and if 

monitored concentrations or emissions 

are trending upward, Ohio commits to 

take appropriate steps to avoid a 

violation if possible. Ohio commits to 

continue implementing SIP 

requirements upon and after 

redesignation. 

EPA believes that Ohio’s contingency 

measures, as well as the commitment to 

continue implementing any SIP 

requirements, satisfy the pertinent 

requirements of section 175A(d). 

As required by section 175A(b) of the 

CAA, Ohio commits to submit to the 

EPA an updated PM2.5 maintenance 

plan eight years after redesignation of 

the Steubenville-Weirton area to cover 

an additional ten year period beyond 

the initial ten year maintenance period. 

As required by section 175A of the 

CAA, Ohio has also committed to retain 

the PM2.5 control measures contained in 

the SIP prior to redesignation. 

For all of the reasons set forth above, 

EPA is proposing to approve Ohio’s 

1997 annual and 2006 24-hour PM2.5

maintenance plan for the SteubenvilleWeirton area as meeting the 

requirements of CAA section 175A. 

5. Insignificance Determination for the 

Mobile Source Contribution to PM2.5 and 

NOX

Under section 176(c) of the CAA, 

transportation plans and transportation 

improvement programs (TIPs) must 

conform to applicable SIP goals. This 

means that such actions will not: (1) 

Cause or contribute to violations of a 

NAAQS; (2) worsen the severity of an 

existing violation; or (3) delay timely 

attainment of a 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, 

MPOs in nonattainment and 

maintenance areas coordinate with state 

air quality agencies and Federal 

transportation agencies (EPA, FHWA 

and FTA) to demonstrate that their 

metropolitan transportation plans 

(‘‘plans’’) and TIPs 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 motor vehicle 

emissions budgets contained in a SIP. 

For budgets to be approvable, they 

must meet, at a minimum, EPA’s 

adequacy criteria (40 CFR 93.118(e)(4)). 

However, the Transportation 

Conformity Rule at 40 CFR 93.109(m) 

allows areas to forgo establishment of a 

budget(s) where it is demonstrated that 

regional motor vehicle emissions for a 

particular pollutant or precursor 

pollutant are an insignificant 

contributor to the air quality problem in 

the area. The general criteria for 

insignificance determinations per 40 

CFR 93.109(m) are based on a number 

of factors, including (1) The percentage 

of motor vehicle emissions in context of 

the total SIP inventory; (2) the current 

state of air quality as determined by 

monitoring data for that NAAQS; (3) the 

absence of SIP motor vehicle control 

measures; and (4) historical trends and 

future projections of the growth of 

motor vehicle emissions in the area. 

The redesignation request that Ohio 

submitted for its portion of the 

Steubenville-Weirton area includes a 

request for EPA to make an 

insignificance finding for NOX and 

directly emitted PM2.5 for the 

Steubenville-Weirton PM2.5

nonattainment area. Pursuant to 

sections 93.118(e)(4) and 93.109(k) of 

the Transportation Conformity Rule, as 

part of the review of Ohio’s 

redesignation request and maintenance 

plan submittal, we have reviewed 

Ohio’s justification for the finding of 

insignificance for direct PM2.5 and also 

for NOX as a precursor of PM2.5 in the 

Ohio portion of the SteubenvilleWeirton area. EPA agrees with Ohio’s 

conclusion that on-road emissions of 

PM2.5 and NOX in the SteubenvilleWeirton area, are insignificant for 

transportation conformity purposes. We 

base our finding on several factors: 

• The fact that the area has been 

determined to attain the annual PM2.5

standard, and continues to attain the 

standard with the most recent three 

years of complete, quality-assured 

monitoring data; 

• The absence of local on-road 

control measures; and 

• The continued downward trend, 

historically and in modeled future 

projections, of on-road NOX and PM2.5

emissions from 2005–2025. 

Consistent with EPA’s adequacy 

review of Ohio’s redesignation request 

and maintenance plan and the Agency’s 

thorough review of the entire SIP 

submission, EPA is proposing to 

approve Ohio’s insignificance 

determination for the on-road motor 

vehicle contribution of NOX and PM2.5

emissions to the overall PM2.5 emissions 

in the Steubenville-Weirton PM2.5 area. 

Because EPA finds that Ohio’s 

submitted maintenance plan and 

redesignation request meets the criteria 

in the conformity rule for an 

insignificance finding for motor vehicle 

emissions of NOX and PM2.5 in the 

Steubenville-Weirton PM2.5 area, it is 

not necessary to establish PM2.5 and 

NOX budgets for the SteubenvilleWeirton PM2.5 area. That is, EPA finds 

that the submittal demonstrates that, for 

NOX and PM2.5, regional motor vehicle 

emissions are an insignificant 

contributor to the annual PM2.5 air 

quality problem in the combined 

Steubenville-Weirton area. Motor 

vehicle emissions in general, for the 

maintenance period of 2015 and 2025, 

are low and declining (See appendix C 

in Ohio submittal found in the docket) 

in the Ohio portion of the area, and in 

the combined Steubenville-Weirton area 

overall. In 2015 the percentage 

contribution to emissions for the 

combined Steubenville-Weirton area 

from motor vehicles is 4.67% and 

1.66% for NOX and PM2.5, respectively. 

In 2025, motor vehicles in the combined 

Steubenville-Weirton area are projected 

to contribute only 2.49% and 0.92% of 

emissions for NOX, and PM2.5, 

respectively, with the decrease due to 

Federal regulations on motor vehicle 

rules such as Heavy-duty Highway 

Vehicle standards and Tier 2 vehicle 

and fuel standards. Also, there have 

been no SIP requirements for motor 

vehicle control measures for the Ohio 


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portion of the area and it is unlikely that 

motor vehicle control measures will be 

implemented for PM2.5 in this area in 

the future. 

Finally, as described above, the area 

has attained the 1997 annual and 2006 

24-hour PM2.5 NAAQS and we are 

proposing to approve the maintenance 

plan and redesignation request for the 

Ohio portion of the area, with no 

requirement for motor vehicle emissions 

budgets for PM2.5 and NOX for the 

Steubenville-Weirton area in order to 

maintain the 1997 annual and 2006 24- 

hour PM2.5 NAAQS. 

With regard to on-road emissions of 

SO2, volatile organic compounds and 

ammonia, Ohio did not provide 

emission budgets (or an insignificance 

demonstration) because it concluded, 

consistent with EPA’s presumptions 

regarding these PM2.5 precursors (70 FR 

24280), that emissions of these 

precursors from motor vehicles are not 

significant contributors to the area’s 

PM2.5 air quality problem. EPA issued 

conformity regulations to implement the 

1997 PM2.5 NAAQS in July 2004 and 

May 2005 (69 FR 40004, July 1, 2004 

and 70 FR 24280, May 6, 2005, 

respectively). Those actions were not 

part of the final rule recently remanded 

to EPA by the Court of Appeals for the 

District of Columbia in NRDC v. EPA, 

No. 08–1250 (Jan. 4, 2013), in which the 

Court remanded to EPA the 

implementation rule for the PM2.5

NAAQS because it concluded that EPA 

must implement that NAAQS pursuant 

to the PM-specific implementation 

provisions of subpart 4 of Part D of Title 

I of the CAA, rather than solely under 

the general provisions of subpart 1. 

EPA is proposing to approve the 

inventory and the findings of 

insignificant contribution by motor 

vehicles, resulting in no proposed motor 

vehicle emissions budgets for the Ohio 

portion of the Steubenville-Weirton area 

for 2015 and 2025 projected 

maintenance years. 

6. 2005 and 2008 Comprehensive 

Emissions Inventory 

As discussed above, section 172(c)(3) 

of the CAA requires areas to submit a 

comprehensive emissions inventory. 

Ohio submitted a 2005 base year 

emissions inventories that meets this 

requirement. Emissions contained in the 

submittals cover the general source 

categories of point sources, area sources, 

on-road mobile sources, and nonroad 

mobile sources. Discussion on the 

methodology used to compile the 

emission inventories can be found in 

section V(3)(b) as well as the docket. 

All emissions discussed in Table 3 

were documented in the submittal and 

the appendices of Ohio’s redesignation 

request submittal. EPA has reviewed 

Ohio’s documentation of the emissions 

inventory techniques and data sources 

used for the derivation of the 2005 and 

2008 emissions estimates and has found 

that Ohio has thoroughly documented 

the derivation of these emissions 

inventories. The submittal from the state 

shows that the 2005 and 2008 emissions 

inventory are currently the most 

complete emissions inventories for 

PM2.5 and PM2.5 precursors in the 

Steubenville-Weirton area. Based upon 

EPA’s review, we propose to find that 

the 2005 and 2008 emissions 

inventories are as complete and accurate 

as possible given the input data 

available to the Ohio, and we are 

proposing to approve them under CAA 

section 172(c)(3). 

7. Summary of Proposed Actions 

EPA has previously determined that 

the Steubenville-Weirton area has 

attained the 1997 annual and 2006 24- 

hour PM2.5 NAAQS. EPA is proposing to 

determine that the entire SteubenvilleWeirton area continues to attain the 

1997 annual and 2006 24-hour PM2.5

standard using the latest three years of 

certified, quality-assured data, and that 

the Ohio portion of the area has met the 

requirements for redesignation under 

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

proposing to approve the request from 

Ohio to change the legal designation of 

the Ohio portion of the SteubenvilleWeirton area from nonattainment to 

attainment for the 1997 annual and 2006 

24-hour PM2.5 NAAQS. EPA is 

proposing to approve Ohio’s PM2.5

maintenance plan for the SteubenvilleWeirton area as a revision to the Ohio 

SIP because the plan meets the 

requirements of section 175A of the 

CAA. EPA is proposing to approve the 

2005 and 2008 emissions inventories for 

primary PM2.5, NOX, and SO2, 

documented in Ohio’s April 16, 2012, 

submittal as satisfying the requirement 

in section 172(c)(3) of the CAA for a 

comprehensive, current emission 

inventory. Finally, for transportation 

conformity purposes EPA is also 

proposing to approve Ohio’s 

determination that on-road emissions of 

PM2.5 and NOX are insignificant 

contributors to PM2.5 concentrations in 

the area. 

VI. What are the effects of EPA’s 

proposed actions? 

If finalized, approval of the 

redesignation request would change the 

official designation of the Ohio portion 

of the Steubenville-Weirton area for the 

1997 annual and 2006 24-hour PM2.5

NAAQS, found at 40 CFR part 81, from 

nonattainment to attainment. If 

finalized, EPA’s proposal would 

approve as a revision to the Ohio SIP for 

the Steubenville-Weirton area, the 

maintenance plan for the 1997 annual 

and 2006 24-hour PM2.5 standard as well 

as the 2005 and 2008 emissions 

inventories included with the 

redesignation request. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

107(d)(3)(E) are actions that affect the 

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

Act 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 approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, these actions: 

• Are 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); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 


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41768 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Proposed Rules 

• Are not significant regulatory 

actions subject to Executive Order 

13211 (66 FR 28355, May 22, 2001); 

• Are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule 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, Intergovernmental relations, 

Particulate matter. 

40 CFR part 81 

Air pollution control, Environmental 

protection, National Parks, Wilderness. 

Dated: June 25, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2013–16658 Filed 7–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Chapter I 

[EPA–HQ–OPPT–2011–0683; FRL–9339–4] 

Chemical Substances and Mixtures 

Used in Oil and Gas Exploration or 

Production; TSCA Section 21 Petition; 

Reasons for Agency Response 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Petition; reasons for Agency 

response. 

SUMMARY: On August 4, 2011, 

Earthjustice and 114 other organizations 

petitioned EPA under section 21 of the 

Toxic Substances Control Act (TSCA) to 

use: TSCA section 8(a) to require 

manufacturers and processors of oil and 

gas exploration and production (E&P) 

chemical substances and mixtures to 

maintain certain records and submit 

reports on those records; TSCA section 

8(d) to require manufacturers, 

processors, and distributors to submit to 

EPA existing health and safety studies 

related to E&P chemical substances and 

mixtures; TSCA section 8(c) to request 

submission of copies of any information 

related to significant adverse reactions 

to human health or the environment 

alleged to have been caused by E&P 

chemical substances and mixtures; and 

TSCA section 4 to require 

manufacturers and processors of E&P 

chemical substances and mixtures to 

conduct toxicity testing of E&P chemical 

substances and mixtures. In a letter 

dated November 2, 2011, EPA informed 

petitioners that it denied the TSCA 

section 4 request and in a letter dated 

November 23, 2011, EPA informed 

petitioners that it granted in part the 

TSCA section 8(a) and 8(d) requests. 

This document sets forth EPA’s reasons 

for denying in part the petitioners’ 

requests. In addition, EPA has 

concluded that TSCA section 21 does 

not apply to requests for a TSCA section 

8(c) data call-in. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Mark 

Seltzer, Chemical Control Division 

(7405M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460–0001; telephone 

number: (202) 564–2901; fax number: 

(202) 564–4775; email address: 

seltzer.mark@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCAHotline@epa.gov. 

SUPPLEMENTARY INFORMATION:

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general. This action, however, may be 

of interest to you if you manufacture 

(including import), process, or 

distribute chemical substances or 

mixtures used in hydraulic fracturing to 

create fractures in geologic formations, 

such as shale rock, allowing enhanced 

natural gas or oil recovery. Since other 

entities also may be interested, the 

Agency has not attempted to describe all 

the specific entities that may be affected 

by this action. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

B. How can I access information about 

this petition? 

The docket for this TSCA section 21 

petition, identified by docket 

identification (ID) number EPA–HQ– 

OPPT–2011–0683, is available at 

http://www.regulations.gov or at the 

Office of Pollution Prevention and 

Toxics Docket (OPPT Docket), 

Environmental Protection Agency 

Docket Center (EPA/DC), EPA West 

Bldg., Rm. 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OPPT Docket is (202) 

566–0280. Please review the visitor 

instructions and additional information 

about the docket available at http:// 

www.epa.gov/dockets. 

II. TSCA Section 21 

A. What is a TSCA section 21 petition? 

Under TSCA section 21 (15 U.S.C. 

2620), any person can petition EPA to 

initiate a rulemaking proceeding for the 

issuance, amendment, or repeal of a rule 

under TSCA sections 4, 6, or 8 or an 

order under TSCA sections 5(e) or 

6(b)(2). A TSCA section 21 petition 

must set forth the facts that are claimed 

to establish the necessity for the action 

requested. EPA is required to grant or 

deny the petition within 90 days of its 

filing. If EPA grants the petition, the 

Agency must promptly commence an 

appropriate proceeding. If EPA denies 

the petition, the Agency must publish 

its reasons for the denial in the Federal 

Register. A petitioner may commence a 

civil action in a U.S. district court to 

compel initiation of the requested 

rulemaking proceeding within 60 days 

of the denial, if the denial occurs prior 

to the expiration of the 90-day period, 

or within 60 days after the expiration of 

the 90-day period. 

B. What criteria apply to a decision on 

a TSCA section 21 petition? 

Section 21(b)(1) of TSCA requires that 

the petition ‘‘set forth the facts which it 

is claimed establish that it is necessary’’ 

to issue the rule or order requested. 15 

U.S.C. 2620(b)(1). Thus, TSCA section 

21 implicitly incorporates the statutory 

standards that apply to the requested 

actions. In addition, TSCA section 21 

establishes standards a court must use 

to decide whether to order EPA to 

initiate rulemaking in the event of a 

lawsuit filed by the petitioner. 15 U.S.C. 

2620(b)(4)(B). Accordingly, EPA has 

relied on the standards in TSCA section 

21 and in the provisions under which 


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