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1On November 5, 2012, EPA initiated the 

comment period for this proposed insignificance 

determination on the Office of Transportation and 

Air Quality (OTAQ) Web site (http://www.epa.gov/ 

otaq/stateresources/transconf/currsips.htm) in 

order to allow for a full 30 day public comment 

period in conjunction with this proposed 

rulemaking. 

VI. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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 Clean Air Act. 

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, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule 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 in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: November 26, 2012. 

Judith Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2012–29896 Filed 12–10–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R03–OAR–2012–0368; FRL–9761–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Redesignation of the West 

Virginia Portion of the Wheeling, WV– 

OH 1997 Annual Fine Particulate Matter 

(PM2.5) Nonattainment Area to 

Attainment and Approval of the 

Associated Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a redesignation request and State 

Implementation Plan (SIP) revision 

submitted by the State of West Virginia. 

The West Virginia Department of 

Environmental Protection (WVDEP) is 

requesting that the West Virginia 

portion of the Wheeling, WV–OH fine 

particulate matter (PM2.5) nonattainment 

area (‘‘Wheeling Area’’ or ‘‘Area’’) be 

redesignated as attainment for the 1997 

annual PM2.5 national ambient air 

quality standard (NAAQS). The 

Wheeling Area is comprised of Marshall 

and Ohio Counties in West Virginia and 

Belmont County in Ohio. In conjunction 

with its redesignation request, West 

Virginia submitted a SIP revision 

consisting of a maintenance plan for the 

West Virginia portion of the Area that 

provides for continued attainment of the 

1997 annual PM2.5 NAAQS for at least 

10 years after redesignation. The 

maintenance plan includes the 2005 

base year emissions inventory that EPA 

is proposing to approve in this 

rulemaking in accordance with the 

requirements of the Clean Air Act 

(CAA). The maintenance plan also 

includes an insignificance 

determination for the onroad motor 

vehicle contribution of PM2.5, nitrogen 

oxides (NOX) and sulfur dioxide (SO2) 

for the West Virginia portion of the 

Area. It should be noted that EPA has 

already initiated a comment period on 

the proposed insignificance 

determination for the West Virginia 

portion of the Area on the Web site for 

the Office of Transportation and Air 

Quality (OTAQ) to allow for a 30-day 

review of this proposed insignificance 

determination in conjunction with this 

proposed rulemaking.1 EPA is 

proposing to find that West Virginia’s 

insignificance determination for 

transportation conformity is adequate. 

EPA previously determined that the 

West Virginia portion of the Wheeling 

Area has attained the 1997 annual PM2.5

NAAQS, and EPA is proposing to find 

that the Area continues to attain the 

standard. This action to propose 

approval of the 1997 annual PM2.5

NAAQS redesignation request, the 

maintenance plan, the 2005 base year 

emissions inventory, and insignificance 

determination for transportation 

conformity for the West Virginia portion 

of the Area is based on EPA’s 

determination that the Area has met the 

criteria for redesignation to attainment 

specified in the CAA. EPA is taking 

separate action to propose redesignation 

for the Ohio portion of the Wheeling 

Area. 

DATES: Written comments must be 

received on or before January 10, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0368 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: mastro.donna@epa.gov. 

C. Mail: EPA–R03–OAR–2012–0368, 

Donna Mastro, Acting Associate 

Director, Office of Air Quality Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2012– 

0368. EPA’s policy is that all comments 

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73576 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Proposed Rules 

received will be included in the public 

docket without change, and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 24304. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by email at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary of Actions 

II. Background 

III. Criteria for Redesignation to Attainment 

IV. Reasons for Proposing These Actions 

V. Effects of EPA’s Proposed Actions 

VI. Analysis of West Virginia’s Redesignation 

Request 

VII. Analysis of West Virginia’s 

Transportation Conformity 

Insignificance Determination for the 

Wheeling Area 

VIII. Proposed Actions 

IX. Statutory and Executive Order Reviews 

I. Summary of Actions 

On March 8, 2012, the State of West 

Virginia through WVEP formally 

submitted a request to redesignate the 

West Virginia portion of the Area from 

nonattainment to attainment of the 1997 

annual PM2.5 NAAQS. Concurrently, 

WVDEP submitted a maintenance plan 

for the Area as a SIP revision to ensure 

continued attainment throughout the 

Area over the next 10 years. 

EPA is proposing to take several 

actions related to the redesignation of 

the West Virginia portion of the Area to 

attainment for the 1997 annual PM2.5

NAAQS. EPA is proposing to find that 

the West Virginia portion of the Area 

meets the requirements for 

redesignation for the 1997 annual PM2.5

NAAQS under section 107(d)(3)(E) of 

the CAA. EPA is thus proposing to 

approve West Virginia’s request to 

change the legal definition of its portion 

of the Area from nonattainment to 

attainment for the 1997 annual PM2.5

NAAQS. This action does not impact 

the legal definition of the Ohio portion 

of the Area. EPA is taking separate 

action to redesignate the Ohio portion. 

EPA is also proposing to approve the 

maintenance plan for the West Virginia 

portion of the Area as a revision to the 

West Virginia SIP. Such approval is one 

of the CAA criteria for redesignation of 

an area to attainment. The maintenance 

plan is designed to ensure continued 

attainment in the West Virginia portion 

of the Area for 10 years after 

redesignation. The maintenance plan 

includes an insignificance 

determination for the onroad motor 

vehicle contribution for PM2.5, SO2 and 

NOX in the West Virginia portion of the 

Area for transportation conformity 

purposes. EPA has determined that the 

onroad motor vehicle insignificance 

finding that is included as part of West 

Virginia’s maintenance plan for the 

1997 annual PM2.5 NAAQS is adequate, 

and is proposing to approve the 

insignificance determination. 

Furthermore, under section 172(c)(3) of 

the CAA, EPA is proposing to approve 

the 2005 base year emissions inventory 

for the West Virginia portion of the Area 

as part of West Virginia’s maintenance 

plan for the 1997 annual PM2.5 NAAQS. 

EPA’s analysis for these proposed 

actions is discussed in Sections VI and 

VII of today’s proposed rulemaking 

action. 

II. Background 

A. General 

The first air quality standards for 

PM2.5 were established on July 18, 1997 

(62 FR 38652). EPA promulgated an 

annual standard at a level of 15 

micrograms per cubic meter (mg/m3), 

based on a three-year average of annual 

mean PM2.5 concentrations. In the same 

rulemaking, EPA promulgated a 24-hour 

standard of 65 mg/m3 based on a threeyear average of the 98th percentile of 24- 

hour concentrations. On October 17, 

2006 (71 FR 61144), EPA retained the 

annual average standard at 15 mg/m3 but 

revised the 24-hour standard to 35 mg/ 

m3, based again on the three-year 

average of the 98th percentile of the 24- 

hour concentrations. 

On January 5, 2005 (70 FR 944), as 

supplemented on April 14, 2005 (70 FR 

19844), EPA designated the Wheeling 

Area as nonattainment for the 1997 

PM2.5 NAAQS. The Wheeling Area is 

comprised of Marshall and Ohio 

Counties in West Virginia and Belmont 

County in Ohio. On November 13, 2009 

(74 FR 58688), EPA promulgated 

designations for the 24-hour standard 

established in 2006, designating the 

Wheeling Area as attaining this 

standard. In that action, EPA also 

clarified the designations for the 

NAAQS promulgated in 1997, stating 

that the Wheeling Area remained 

designated nonattainment for the 1997 

annual PM2.5 NAAQS, but was 

designated attainment for the 1997 24- 

hour NAAQS. Today’s action therefore, 

does not address attainment of either 

the 1997 or the 2006 24-hour PM2.5

NAAQS. 

In response to legal challenges of the 

annual standard promulgated in 2006, 

the United States Court of Appeals for 

the District of Columbia Circuit (the 

Court) remanded the 2006 annual 

standard to EPA for further 

consideration. See American Farm 

Bureau Federation and National Pork 

Producers Council, et. al. v. EPA, 559 

F.3d 512 (D.C. Cir. 2009). However, 

given that the 1997 and 2006 annual 

standards are essentially identical, 

attainment of the 1997 annual standard 

would also indicate attainment of the 

remanded 2006 annual standard. Since 

the Area is designated nonattainment 

for the annual standard promulgated in 

1997, today’s action addresses 

redesignation to attainment only for this 

standard. 

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2The Court’s judgment is not final, as of 

November 16, 2012, as the mandate has not yet 

been issued. 

In the final rulemaking action dated 

December 2, 2011 (76 FR 75464), EPA 

determined, pursuant to CAA section 

179(c), that the entire Wheeling Area is 

attaining the 1997 annual PM2.5

NAAQS. This determination of 

attainment was based upon complete, 

quality-assured and certified ambient air 

quality monitoring data for the period of 

2007–2009 showing that the Area had 

attained the 1997 annual PM2.5 NAAQS 

by its applicable attainment date of 

April 5, 2010. 

B. Clean Air Interstate Rule (CAIR) and 

Cross State Air Pollution Rule (CSAPR 

or the Transport Rule) 

On May 12, 2005, EPA published 

CAIR, which requires significant 

reductions in emissions of SO2 and NOX

from electric generating units (EGUs) to 

limit the interstate transport of these 

pollutants and the ozone and PM2.5 they 

form in the atmosphere. See 70 FR 

25162. The Court initially vacated CAIR, 

North Carolina v. EPA, 531 F.3d 896 

(D.C. Cir. 2008), but ultimately 

remanded the rule to EPA without 

vacatur to preserve the environmental 

benefits provided by CAIR. North 

Carolina v. EPA, 550 F.3d 1176, 1178 

(D.C. Cir. 2008). In response to the 

Court’s decision, EPA issued the 

Transport Rule, also known as CSAPR, 

to address interstate transport of NOX

and SO2 in the eastern United States. 

See 76 FR 48208 (August 8, 2011). On 

August 21, 2012, the Court issued a 

decision to vacate the Transport Rule. In 

that decision, it also ordered EPA to 

continue administering CAIR ‘‘pending 

the promulgation of a valid 

replacement.’’ EME Homer City 

Generation, L.P. v. EPA, No. 11–1302 

(D.C. Cir., August 21, 2012).2

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 Marshall and Ohio 

Counties in West Virginia, including 

West Virginia’s plan for maintaining 

attainment of the 1997 annual PM2.5

NAAQS for the West Virginia portion of 

the Area. The air quality modeling 

analysis conducted for the Transport 

Rule demonstrates that the Wheeling 

Area would be able to attain the 1997 

annual PM2.5 NAAQS even in the 

absence of either CAIR or the Transport 

Rule. See ‘‘Air Quality Modeling Final 

Rule Technical Support Document,’’ 

Appendix B, B–115–B–134. This 

modeling is available in the docket for 

the Transport Rule rulemaking. See 

Docket ID. No. EPA–HQ–OAR–2009– 

0491. Nothing in the Court’s August 

2012 decision disturbs or calls into 

question that conclusion or the validity 

of the air quality analysis on which it is 

based. 

In addition, CAIR remains in place 

and enforceable until substituted by a 

‘‘valid’’ replacement rule. West 

Virginia’s SIP revision lists CAIR as a 

control measure that became stateeffective May 1, 2008 and was approved 

by EPA on August 4, 2009 (74 FR 38536) 

for the purpose of reducing SO2 and 

NOX emissions. The monitoring data 

used to demonstrate the Area’s 

attainment of the 1997 annual PM2.5

NAAQS by the April 2010 attainment 

deadline was also impacted by CAIR. To 

the extent that West Virginia is relying 

on CAIR in its maintenance plan, the 

recent directive from the Court in EME 

Homer City ensures that the reductions 

associated with CAIR will be permanent 

and enforceable for the necessary time 

period. EPA has been ordered by the 

Court to develop a new rule, 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. 

CAIR thus cannot be replaced 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. These 

steps alone will take many years, even 

with EPA and the states acting 

expeditiously. 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 downwind contributions. 

Further, in vacating the Transport 

Rule and requiring EPA to continue 

administering CAIR, the Court 

emphasized that the consequences of 

vacating CAIR ‘‘might be more severe 

now in light of the reliance interests 

accumulated over the intervening four 

years.’’ EME Homer City, slip op. at 60. 

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 pending a valid replacement 

rule 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. Criteria for Redesignation to 

Attainment 

The CAA provides the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

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

redesignation providing that: (1) EPA 

determines that the area has attained the 

applicable NAAQS; (2) EPA has fully 

approved the applicable 

implementation plan for the area under 

section 110(k) of the CAA; (3) EPA 

determines that the improvement in air 

quality is due to permanent and 

enforceable reductions in emissions 

resulting from implementation of the 

applicable SIP and applicable Federal 

air pollutant control regulations and 

other permanent and enforceable 

reductions; (4) EPA has fully approved 

a maintenance plan for the area as 

meeting the requirements of section 

175A of the CAA; and (5) the state 

containing such area has met all 

requirements applicable to the area 

under section 110 and part D of the 

CAA. 

EPA has provided guidance on 

redesignation in the General Preamble 

for the Implementation of Title I of the 

CAA Amendments of 1990 (57 FR 

13498, April 16, 1992) (supplemented at 

57 FR 18070, April 28, 1992) and has 

provided further guidance on processing 

redesignation requests in the following 

documents: 

1. ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992 (hereafter referred to as the 

‘‘Calcagni Memorandum’’); 

2. ‘‘State Implementation Plan (SIP) 

Actions Submitted in Response to Clean 

Air Act (CAA) Deadlines,’’ 

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, October 28, 1992; and 

3. ‘‘Part D New Source Review (Part 

D NSR) Requirements for Areas 

Requesting Redesignation to 

Attainment,’’ Memorandum from Mary 

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73578 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Proposed Rules 

D. Nichols, Assistant Administrator for 

Air and Radiation, October 14, 1994. 

IV. Reasons for Proposing These 

Actions 

On March 8, 2012, the WVDEP 

requested redesignation of the West 

Virginia portion of the Area to 

attainment for the 1997 annual PM2.5

NAAQS. As part of the redesignation 

request, WVDEP submitted a 

maintenance plan for the West Virginia 

portion of the Area as a SIP revision, to 

ensure continued attainment of the 1997 

annual PM2.5 NAAQS over the next 10 

years until 2022. EPA has determined 

that the Wheeling Area has attained the 

1997 annual PM2.5 NAAQS and has met 

the requirements set forth in CAA 

section 107(d)(3)(E) for redesignation of 

the West Virginia portion of the Area. 

V. Effects of EPA’s Proposed Actions 

Final approval of the redesignation 

request would change the official 

designation of the West Virginia portion 

of Area for the 1997 annual PM2.5

NAAQS, found at 40 CFR part 81, from 

nonattainment to attainment. It would 

incorporate into the West Virginia SIP a 

maintenance plan ensuring continued 

attainment of the 1997 annual PM2.5

NAAQS in the Area for the next 10 

years until 2022. The maintenance plan 

includes, among other components, 

contingency measures to remedy any 

future violations of the 1997 annual 

PM2.5 NAAQS (should they occur). 

Approval of the maintenance plan 

would also result in approval of the 

insignificance determination for PM2.5, 

SO2 and NOx for transportation 

conformity purposes for the years 2015 

and 2022 in the West Virginia portion 

of the Area. Approval of the 2005 base 

year emissions inventory, which is part 

of the maintenance plan, will satisfy the 

inventory requirements under section 

172(c)(3) of the CAA. 

VI. Analysis of West Virginia’s 

Redesignation Request 

EPA proposes to redesignate the West 

Virginia portion of the Area to 

attainment for the 1997 annual PM2.5

NAAQS and to approve into the West 

Virginia SIP the 1997 annual PM2.5

NAAQS maintenance plan for the West 

Virginia portion of the Area. These 

actions are based upon EPA’s 

determination that the Area continues to 

attain the 1997 annual PM2.5 NAAQS 

and that all other redesignation criteria 

have been met for the West Virginia 

portion of the Area, provided EPA 

approves the 2005 base year emissions 

inventory that is being proposed in this 

rulemaking. The following is a 

description of how the WVDEP March 8, 

2012 submittal satisfies the 

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

the CAA. 

1. Attainment 

As noted above, in a final rulemaking 

action dated December 2, 2011 (76 FR 

75464), EPA determined, pursuant to 

CAA section 179(c), that the entire 

Wheeling Area was attaining the 1997 

annual PM2.5 NAAQS. This 

determination of attainment was based 

upon complete, quality-assured and 

certified ambient air quality monitoring 

data for the period of 2007–2009 

showing that the Area had attained the 

NAAQS by its applicable attainment 

date of April 5, 2010. Further discussion 

of pertinent air quality issues 

underlying this determination was 

provided in the notice of proposed 

rulemaking for EPA’s determination of 

attainment for this Area, published on 

July 21, 2011 (76 FR 43634). EPA has 

reviewed more recent data in its Air 

Quality System (AQS) database, 

including certified, quality-assured data 

for the period from 2008–2010 and 

2009–2011. This data shown in Table 1, 

shows that the Wheeling Area continues 

to attain the 1997 annual PM2.5 NAAQS. 

In addition, as discussed below with 

respect to the maintenance plan, 

WVDEP has committed to continue 

monitoring air quality in accordance 

with 40 CFR part 58. In summary, EPA 

has determined that the data submitted 

by West Virginia, as well as data taken 

from AQS, indicate that the Wheeling 

Area has attained and continues to 

attain the 1997 annual PM2.5 NAAQS. 

TABLE 1—DESIGN VALUE CONCENTRATIONS FOR THE WEST VIRGINIA PORTION OF THE WHEELING AREA FOR THE 1997 

ANNUAL PM2.5 NAAQS (μG/M3) FOR 2008–2010 AND 2009–2011 

County Monitor ID 

3-Year Annual Design Values 

2008–2010 2009–2011 

Marshall, WV ................................................................................................................... 54–051–1002 13.1 13.0 

Ohio, WV ......................................................................................................................... 54–069–0010 12.4 11.9 

Note: There is no monitor in Belmont County, Ohio. 

2. The Area Has Met All Applicable 

Requirements Under Section 110 and 

Part D of the CAA and Has a Fully 

Approved SIP Under Section 110(k) of 

the CAA 

EPA has determined that the West 

Virginia portion of the Area has met all 

SIP requirements applicable for 

purposes of this redesignation under 

section 110 of the CAA (General SIP 

Requirements) and that, upon final 

approval of the 2005 base year 

emissions inventory, as discussed below 

in this proposed rulemaking, it will 

have met all applicable SIP 

requirements under part D of Title I of 

the CAA, in accordance with CAA 

section 107(d)(3)(E)(v). In addition, EPA 

is proposing to find that all applicable 

requirements of the West Virginia SIP 

for purposes of redesignation have been 

approved in accordance with CAA 

section 107(d)(3)(E)(ii). In making these 

proposed determinations, EPA 

ascertained which SIP requirements are 

applicable for purposes of redesignation 

of this Area, and concluded that the 

applicable portions of the SIP meeting 

these requirements are fully approved 

under section 110(k) of the CAA. EPA 

notes that SIPs must be fully approved 

only with respect to applicable 

requirements. 

a. Section 110 General SIP 

Requirements 

Section 110(a)(2) of Title I of the CAA 

delineates the general requirements for 

a SIP, which include enforceable 

emissions limitations and other control 

measures, means, or techniques, 

provisions for the establishment and 

operation of appropriate devices 

necessary to collect data on ambient air 

quality, and programs to enforce the 

limitations. The general SIP elements 

and requirements set forth in CAA 

section 110(a)(2) include, but are not 

limited to the following: 

• Submittal of a SIP that has been 

adopted by the state after reasonable 

public notice and hearing; 

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Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Proposed Rules 73579 

• Provisions for establishment and 

operation of appropriate procedures 

needed to monitor ambient air quality; 

• Implementation of a source permit 

program; provisions for the 

implementation of Part C requirements 

(Prevention of Significant Deterioration 

(PSD)); 

• Provisions for the implementation 

of Part D requirements for New Source 

Review (NSR) permit programs; 

• Provisions for air pollution 

modeling; and 

• Provisions for public and local 

agency participation in planning and 

emission control rule development. 

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

requires that SIPs contain certain 

measures to prevent sources in a state 

from significantly contributing to air 

quality problems in another state. To 

implement this provision, EPA has 

required certain states to establish 

programs to address the interstate 

transport of air pollutants in accordance 

with the NOX SIP Call, October 27, 1998 

(63 FR 57356), amendments to the NOX

SIP Call, May 14, 1999 (64 FR 26298) 

and March 2, 2000 (65 FR 11222), and 

CAIR, May 12, 2005 (70 FR 25162). 

However, the CAA section 110(a)(2)(D) 

requirements for a state are not linked 

with a particular nonattainment area’s 

designation and classification in that 

state. EPA believes that the 

requirements linked with a particular 

nonattainment area’s designation and 

classifications are the relevant measures 

to evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a state regardless of 

the designation of any one particular 

area in the state. Thus, EPA does not 

believe that these requirements are 

applicable requirements for purposes of 

redesignation. 

In addition, EPA believes that the 

other CAA section 110(a)(2) elements 

not connected with nonattainment plan 

submissions and not linked with an 

area’s attainment status are not 

applicable requirements for purposes of 

redesignation. The Area will still be 

subject to these requirements after it is 

redesignated. EPA concludes that the 

CAA section 110(a)(2) and Part D 

requirements which are linked with a 

particular area’s designation and 

classification are the relevant measures 

to evaluate in reviewing a redesignation 

request, and that CAA section 110(a)(2) 

elements not linked in the area’s 

nonattainment status are not applicable 

for purposes of redesignation. This 

approach is consistent with EPA’s 

existing policy on applicability of 

conformity (i.e., for redesignations) and 

oxygenated fuels requirement. See 

Reading, Pennsylvania, proposed and 

final rulemakings (61 FR 53174, October 

10, 1996), (62 FR 24826, May 7, 1997); 

Cleveland-Akron-Lorain, Ohio final 

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

and Tampa, Florida final rulemaking (60 

FR 62748, December 7, 1995). See also 

the discussion on this issue in the 

Cincinnati, Ohio redesignation (65 FR at 

37890, June 19, 2000) and in the 

Pittsburgh, Pennsylvania redesignation 

(66 FR at 53099, October 19, 2001). 

EPA has reviewed the West Virginia 

SIP and has concluded that it meets the 

general SIP requirements under section 

110(a)(2) of the CAA to the extent they 

are applicable for purposes of 

redesignation. EPA has previously 

approved provisions of West Virginia’s 

SIP addressing CAA section 110(a)(2) 

requirements, including provisions 

addressing PM2.5. See 76 FR 47062 

(August 4, 2011). These requirements 

are, however, statewide requirements 

that are not linked to the PM2.5

nonattainment status of the Wheeling 

Area. Therefore, EPA believes that these 

SIP elements are not applicable 

requirements for purposes of review of 

West Virginia’s PM2.5 redesignation 

request. 

b. Part D Nonattainment Requirements 

Under the Standard 

Subpart 1 of part D, sections 172 to 

175 of the CAA, sets forth the basic 

nonattainment plan requirements 

applicable to PM2.5 nonattainment areas. 

Under CAA section 172, states with 

nonattainment areas must submit plans 

providing for timely attainment and 

meet a variety of other requirements. On 

November 20, 2009 (74 FR 60199), EPA 

made a determination that the Wheeling 

Area is attaining the 1997 annual PM2.5

NAAQS. This determination was based 

upon complete, quality-assured, quality 

controlled, and certified ambient air 

monitoring data that show that the area 

monitored attainment of the 1997 

annual PM2.5 NAAQS during the 2006– 

2008 monitoring period. Available 

monitoring data for 2009, 2010 and 2011 

are consistent with continued 

attainment of the standard. Pursuant to 

40 CFR 51.2004(c), upon determination 

by EPA that an area designated 

nonattainment of the PM2.5 NAAQS has 

attained the standard, the requirement 

for such an area to submit an attainment 

demonstration and associated 

reasonably achievable control 

technology (RACT)/reasonably 

achievable control measures (RACM), a 

reasonable further progress (RFP), 

contingency measures, and other 

planning SIPs related to the attainment 

of the PM2.5 NAAQS are suspended 

until the area is redesignated to 

attainment or EPA determines that the 

area has again violated the PM2.5

NAAQS, at which time such plans are 

required to be submitted. As a result of 

the determination of attainment, the 

only remaining requirement under CAA 

section 172 to be considered is the 

emissions inventory required under 

CAA section 172(c)(3). 

In this rulemaking action, EPA is 

proposing to approve West Virginia’s 

2005 base year emissions inventory in 

accordance with section 172(c)(3) of the 

CAA. Final approval of the 2005 base 

year emissions inventory will satisfy the 

emissions inventory requirement under 

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

The General Preamble for 

Implementation of Title I also discusses 

the evaluation of these requirements in 

the context of EPA’s consideration of a 

redesignation request. The General 

Preamble sets forth EPA’s view of 

applicable requirements for purposes of 

evaluating redesignation requests when 

an area is attaining the standard. See 

General Preamble for Implementation of 

Title I (57 FR 13498, April 16, 1992). 

Because attainment has been reached 

for the Area, no additional measures are 

needed to provide for attainment, and 

CAA section 172(c)(1) requirements for 

an attainment demonstration and 

RACT/RACM are no longer considered 

to be applicable for purposes of 

redesignation as long as the area 

continues to attain the standard until 

redesignation. See 40 CFR 51.1004(c). 

The RFP requirement under CAA 

section 172(c)(2) and contingency 

measures requirement under CAA 

section 172(c)(9) are similarly not 

relevant for purposes of redesignation. 

Section 172(c)(3) of the CAA requires 

submission and approval of a 

comprehensive, accurate and current 

inventory of actual emissions. As part of 

the maintenance plan submitted by 

WVDEP, West Virginia submitted a 2005 

base year emissions inventory that 

meets this requirement. The 2005 base 

year emissions inventory compiled by 

WVDEP for the West Virginia portion of 

the Area contains PM2.5 (including 

condensables), SO2 and NOX emissions. 

The emissions cover the general source 

categories of point sources, area sources, 

onroad mobile sources and nonroad 

mobile sources. The proposed approval 

of the 2005 base year emissions 

inventory in this rulemaking action will, 

when finalized, meet the requirements 

of CAA section 172(c)(3). For more 

information on the evaluation and 

EPA’s analysis of the 2005 base year 

emissions inventory, see Appendix B of 

the State submittal and the emissions 

inventory technical support document 

(TSD) dated May 18, 2012, available on 

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line at www.regulations.gov, Docket ID 

No. EPA–OAR–R03–2012–0368. A 

summary of the 2005 base year 

emissions inventory is shown in Tables 

2 and 3. 

TABLE 2—MARSHALL COUNTY, WEST VIRGINIA, SUMMARY OF 2005 BASE YEAR EMISSIONS INVENTORY IN TONS PER

YEAR (TPY) 

SO2 NOX PM2.5

Point (EGU) ..................................................................................................................... 96,378 31,541 3,826 

Non EGU ......................................................................................................................... 19,110 3,131 525 

Area ................................................................................................................................. 102 184 316 

Locomotive & Marine (LM) .............................................................................................. 31 671 25

Nonroad ........................................................................................................................... 10 113 12 

Onroad ............................................................................................................................. 9 735 26 

Total .......................................................................................................................... 115,641 36,375 4,731 

TABLE 3—OHIO COUNTY, WEST VIRGINIA, SUMMARY OF 2005 BASE YEAR EMISSIONS INVENTORY IN TPY

SO2 NOX PM2.5

Point (EGU) ..................................................................................................................... 0 0 0 

Non EGU ......................................................................................................................... 1 6 11 

Area ................................................................................................................................. 232 613 263 

Locomotive & Marine (LM) .............................................................................................. 44 972 38

Nonroad ........................................................................................................................... 15 170 21 

Onroad ............................................................................................................................. 16 1230 40 

Total .......................................................................................................................... 308 2991 372 

Section 172(c)(4) of the CAA requires 

the identification and quantification of 

allowable emissions for major new and 

modified stationary sources in an area, 

and CAA 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 has 

determined that, since the PSD 

requirements will apply after 

redesignation, areas being redesignated 

need not comply with the requirement 

that a nonattainment NSR program be 

approved prior to redesignation, 

provided that the area demonstrates 

maintenance of the NAAQS without 

part D NSR. A more detailed rationale 

for this view is described in a 

memorandum from Mary Nichols, 

Assistant Administrator for Air and 

Radiation, dated October 14, 1994 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ 

Nevertheless, West Virginia currently 

has an approved NSR program, codified 

in 45 CFR 19. See 71 FR 64468 

(November 2, 2006) (approving NSR 

program into the SIP). See also 77 FR 

63736 (October 17, 2012) (approving 

revisions to West Virginia’s PSD 

program). However, West Virginia’s PSD 

program for the 1997 annual PM2.5

NAAQS will become effective in the 

Wheeling Area upon redesignation to 

attainment. 

Section 172(c)(6) of the CAA requires 

the SIP to contain control measures 

necessary to provide for attainment of 

the NAAQS. Because attainment has 

been reached for the Area, no additional 

measures are needed to provide for 

attainment. 

Section 172(c)(7) of the CAA requires 

the SIP to meet the applicable 

provisions of CAA section 110(a)(2). As 

noted previously, we believe the West 

Virginia SIP meets the requirements of 

CAA section 110(a)(2) that are 

applicable for purposes of 

redesignation. 

Section 176(c) of the CAA requires 

states to establish criteria and 

procedures to ensure that Federally 

supported or funded projects conform to 

the air quality planning goals in the 

applicable SIP. The requirement to 

determine conformity applies to 

transportation plans, programs, and 

projects developed, funded or approved 

under Title 23 of the United States Code 

(U.S.C.) and the Federal Transit Act 

(transportation conformity) as well as to 

all other Federally supported or funded 

projects (general conformity). State 

transportation conformity SIP revisions 

must be consistent with Federal 

conformity regulations relating to 

consultation, enforcement and 

enforceability which EPA promulgated 

pursuant to its authority under the CAA. 

EPA interprets the conformity SIP 

requirements as not applying for 

purposes of evaluating the redesignation 

request under CAA section 107(d) 

because state conformity rules are still 

required after redesignation and Federal 

conformity rules apply where state rules 

have not been approved. See Wall v. 

EPA, 265 F.3d 426, (6th Cir. 2001) 

(upholding this interpretation). See also 

60 FR 62748 (December 7, 1995) 

(discussing Tampa, Florida). Thus, EPA 

determines that the Wheeling Area has 

satisfied all applicable requirements for 

purposes of redesignation under CAA 

section 110, and upon final approval of 

the 2005 base year emissions inventory, 

will have satisfied all applicable 

requirements under part D of Title I of 

the CAA. 

c. The West Virginia Portion of the Area 

Has a Fully Approved Applicable SIP 

Under Section 110(k) of the CAA 

Upon final approval of the 2005 base 

year emissions inventory, EPA will have 

fully approved the West Virginia 

portion of the Area under section 110(k) 

of the CAA for all requirements 

applicable for purposes of redesignaton 

to attainment for the 1997 annual PM2.5

NAAQS. As noted above, in this 

rulemaking action, EPA is proposing to 

approve the West Virginia portion of the 

Area’s 2005 base year emissions 

inventory (submitted as part of its 

maintenance plan) as meeting the 

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

CAA for the 1997 annual PM2.5 NAAQS. 

Therefore, upon final approval of the 

2005 base year emissions inventory, 

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EPA will have satisfied all applicable 

requirements under part D of Title I of 

the CAA for the West Virginia portion 

of the Area. 

3. The Air Quality Improvement in the 

West Virginia Portion of the Area Is Due 

to Permanent and Enforceable 

Reductions in Emissions Resulting From 

Implementation of the SIP and 

Applicable Federal Air Pollution 

Control Regulations and Other 

Permanent and Enforceable Reductions 

For redesignating a nonattainment 

area to attainment, CAA section 

107(d)(3)(E)(iii) requires EPA to 

determine that the air quality 

improvement in the area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP and 

applicable Federal air pollution control 

regulations and other permanent and 

enforceable reductions. EPA believes 

that West Virginia has demonstrated 

that the observed air quality 

improvement in the West Virginia 

portion of the Area is due to permanent 

and enforceable reductions in emissions 

resulting from implementation of the 

SIP, Federal measures, and other stateadopted measures. In making this 

demonstration, West Virginia has 

calculated the change in emissions 

between 2005, one of the years used to 

designate the Wheeling Area as 

nonattainment, and 2008, one of the 

years the Wheeling Area monitored 

attainment. See Table 4 below. 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 Wheeling 

Area and contributing areas have 

implemented in recent years. 

TABLE 4—COMPARISON OF 2005 BASE YEAR AND 2008 ATTAINMENT YEAR REDUCTIONS IN TPY IN THE WHEELING AREA

2005 2008 Decrease 

EGU NOX ....................................................................................................................... 35,691 27,437 8,254 

EGU PM2.5 ..................................................................................................................... 3,920 4,510 (590 ) 

EGU SO2 ....................................................................................................................... 133,708 50,200 83,508 

Onroad NOX .................................................................................................................. 5,145 4,272 873 

Onroad PM2.5 ................................................................................................................. 172 145 27 

Onroad SO2 ................................................................................................................... 56 18 38 

Nonroad NOX ................................................................................................................. 505 463 42 

Nonroad PM2.5 ............................................................................................................... 60 54 6 

Nonroad SO2 ................................................................................................................. 47 13 34 

a. Federal Measures Implemented 

Reductions in PM2.5 precursor 

emissions have occurred statewide and 

in upwind states as a result of Federal 

emission control measures with 

additional emission reductions expected 

to occur in the future. Federal emission 

control measures include the following: 

(1) 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, 

including sport utility vehicles. The 

Federal rules were phased in between 

2004 and 2009. EPA has estimated that, 

after phasing in the new requirements, 

new vehicles emit less NOX in the 

following percentages: Passenger cars 

(light duty vehicles)—77 percent; light 

duty trucks, minivans, and sports utility 

vehicles—86 percent; and larger sports 

utility vehicles, vans, and heavier 

trucks—69–95 percent. EPA expects 

fleet wide average emissions to decline 

by similar percentages as new vehicles 

replace older vehicles. The Tier 2 

standards also reduced the sulfur 

content of gasoline to 30 parts per 

million (ppm) beginning in January 

2006, which reflects up to a 90 percent 

reduction in sulfur content. 

(2) 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 PM2.5

emissions from heavy-duty highway 

engines and further reduced the 

highway diesel fuel sulfur content to 15 

ppm. The total program is estimated to 

achieve a 90 percent reduction in direct 

PM2.5 emissions and a 95 percent 

reduction in NOX emissions for these 

new engines using low sulfur diesel, 

compared to existing engines using 

higher sulfur diesel fuel. The reduction 

in fuel sulfur content also yielded an 

immediate reduction in particulate 

sulfate emissions from all diesel 

vehicles. 

(3) Nonroad Diesel Rule 

In May 2004, EPA promulgated a new 

rule for large nonroad diesel engines, 

such as those used in construction, 

agriculture, and mining, to be phased in 

between 2008 and 2014. The rule also 

reduces the sulfur content in nonroad 

diesel fuel by over 99 percent. Prior to 

2006, nonroad diesel fuel averaged 

approximately 3,400 ppm sulfur. This 

rule limited nonroad diesel sulfur 

content to 500 ppm by 2006, with a 

further reduction to 15 ppm by 2010. 

b. Controls on PM2.5 Precursors 

The Area’s air quality is strongly 

affected by regulation of SO2 and NOX

from power plants. EPA promulgated 

the NOX SIP Call, CAIR and CASPR to 

address SO2 and NOX emissions from 

EGUs and certain non-EGUs across the 

eastern United States. The affected 

EGUs in the Wheeling Area are located 

at the Ohio Power Mitchell Plant and 

the Ohio Power Kammer Plant in 

Marshall County which are both owned 

and/or operated by American Electric 

Power (AEP). 

(1) NOX SIP Call 

EPA issued the NOX SIP Call in 1998 

pursuant to the CAA to require 22 states 

and the District of Columbia to reduce 

NOX emissions from large EGUs and 

large non-EGUs such as industrial 

boilers, internal combustion engines, 

and cement kilns. (63 FR 57356, October 

27, 1998). EPA approved West Virginia’s 

Phase I NOX SIP Call rule in 2002 and 

Phase II rule in 2006. Emission 

reductions resulting from regulations 

developed in response to the NOX SIP 

Call are permanent and enforceable. 

(2) CAIR and CSAPR 

EPA approved West Virginia’s CAIR 

rules in 2009 (74 FR 38536, August 4, 

2009)). The maintenance plan for the 

West Virginia portion of the Area thus 

lists CAIR as a control measure for the 

purpose of reducing SO2 and NOX

emissions from EGUs. 

As previously discussed, the Court’s 

2008 remand of CAIR left the rule in 

place to ‘‘temporarily preserve the 

environmental values covered by CAIR’’ 

until EPA replaced it with a rule 

consistent with the Court’s opinion, and 

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3Formerly, the Clean Air Markets Division 

(CAMD) database. 

the Court’s August 2012 decision on the 

Transport Rule also left CAIR in effect 

until the legal challenges to the 

Transport Rule are resolved. As noted, 

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 pending a valid replacement 

rule, for purposes such as redesignation. 

Furthermore, as previously discussed, 

the air quality modeling analysis 

conducted for the Transport Rule 

demonstrates that the Wheeling Area 

would be able to attain the 1997 annual 

PM2.5 NAAQS even in the absence of 

either CAIR or the Transport Rule. 

EPA’s modeling projections show that 

all ambient monitors in the Area are 

expected to continue to maintain 

compliance in the 2012 and 2014 ‘‘no 

CAIR’’ base cases. Therefore, none of the 

ambient monitoring sites in the 

Wheeling Area are ‘‘receptors’’ that EPA 

projects will have future nonattainment 

problems or difficulty maintaining the 

NAAQS. 

c. Federal Consent Decrees 

EGUs in this Area are subject to 

Federal consent decrees that have 

reduced emissions of NOX and SO2 in 

the Area. There are two EGUs in 

Marshall County, the partial county 

portion of the West Virginia portion of 

the Area. These are the Ohio Power 

Kammer Plant and Ohio Power Mitchell 

Plant in Marshall County which are 

owned and/or operated by AEP. As part 

of a Federally enforceable consent 

decree with AEP, the Mitchell Plant was 

required, starting in January 2009, to 

operate selective catalytic reduction 

(SCR) continuously to control emissions 

of NOX and to operate continuously its 

Flue Gas Desulfurization (FGD) to 

reduce SO2 emissions starting in 

December 2007. 

d. Controls on PM2.5 Precursors From 

EGUs in the Area 

Since 2008, additional controls have 

and will be installed on EGUs within 

the West Virginia portion of the Area 

and the State of Ohio, which will 

continue to contribute to the reductions 

in precursor pollutants for PM2.5. The 

Mitchell Plant installed and began 

operation of SCR to control NOX

emissions on Units 1 and 2 starting in 

January 2009, and the Kammer Plant 

may be required to retire, retrofit, or 

repower Units 1–3 by December 31, 

2018. EGUs in Belmont County, Ohio 

have installed controls as a result of a 

Federally enforceable consent decree. In 

2008, two units, #4 and #5 at the R.E. 

Burger First Energy station installed 

selective non-catalytic reduction (SNCR) 

to reduce NOX emissions. Both units are 

required by 2012 to operate the SNCR 

continuously to reduce NOX emissions. 

e. Controls on PM2.5 Precursors From 

EGUs in Contributing States 

Because PM2.5 concentrations in the 

Wheeling Area are impacted by the 

transport of sulfates and nitrates, the 

Area’s air quality is strongly affected by 

regulation of SO2 and NOX emissions 

from EGUs in states in the region that 

significantly contribute to the Area. EPA 

reviewed SO2 and NOX emissions from 

EGUs in states that contribute to the 

Area, and the data show that SO2 and 

NOX emissions have been decreasing. 

See EPA’s Air Markets Program 

Database (AMPD) 3 (http:// 

ampd.epa.gov/ampd ). 

Based on the information summarized 

above, West Virginia has adequately 

demonstrated that the improvement in 

air quality is due to permanent and 

enforceable emissions reductions. The 

reductions result from Federal 

requirements, regulation of precursors 

under the NOX SIP Call and CAIR, and 

consent decrees affecting EGUs in the 

Wheeling Area, which are expected to 

continue into the future. 

4. The West Virginia Portion of the Area 

Has a Fully Approvable Maintenance 

Plan Pursuant to Section 175A of the 

CAA 

In conjunction with its request to 

redesignate the West Virginia portion of 

the Area to attainment status, West 

Virginia submitted a SIP revision to 

provide for maintenance of the 1997 

annual PM2.5 NAAQS in the Area for at 

least 10 years after redesignation. West 

Virginia is requesting that EPA approve 

this SIP revision as meeting the 

requirements of section 175A of the 

CAA. Once approved, the maintenance 

plan for the West Virginia portion of the 

Area will ensure that the SIP for West 

Virginia meets the requirements of the 

CAA regarding maintenance of the 1997 

annual PM2.5 NAAQS for this Area. 

a. Requirements of a Maintenance Plan 

Section 175 of the CAA sets forth the 

elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. Under 

CAA section 175A, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least 10 

years after approval of a redesignation of 

an area to attainment. Eight years after 

the redesignation, West Virginia must 

submit a revised maintenance plan 

demonstrating that attainment will 

continue to be maintained for the 10 

years following the initial 10-year 

period. To address the possibility of 

future NAAQS violations, the 

maintenance plan must contain such 

contingency measures, with a schedule 

for implementation, as EPA deems 

necessary, to assure prompt correction 

of any future 1997 annual PM2.5

violations. The Calcagni Memorandum 

dated September 4, 1992 provides 

additional guidance on the content of a 

maintenance plan. The Calcagni 

Memorandum states that a PM2.5

maintenance plan should address the 

following provisions: (1) An attainment 

emissions inventory; (2) a maintenance 

demonstration showing maintenance for 

10 years; (3) a commitment to maintain 

the existing monitoring network; (4) 

verification of continued attainment; 

and (5) a contingency plan to prevent or 

correct future violations of the NAAQS. 

b. Analysis of the Maintenance Plan 

(1) Attainment Emissions Inventory 

An attainment inventory is comprised 

of the emissions during the time period 

associated with the monitoring data 

showing attainment. WVDEP developed 

emissions inventories for NOX, direct 

PM2.5, and SO2 for 2008, one of the years 

in the period during which the 

Wheeling Area monitored attainment of 

the 1997 annual PM2.5 standard, as 

described previously. The 2008 point 

source inventory contained emissions 

for EGUs and non-EGU sources in 

Marshall and Ohio Counties in West 

Virginia. WVDEP used the 2008 annual 

emissions inventory submitted to EPA’s 

National Emissions Inventory (NEI) 

database and EPA’s AMPD database to 

compile their inventory. For the 2008 

area source emissions, WVDEP used the 

2008 NEI v1.5 data developed by EPA. 

For the 2008 nonroad mobile sources, 

WVDEP generated the emissions using 

EPA’s NONROAD model. The 2008 

onroad mobile source inventory was 

developed using the most current 

version of EPA’s highway mobile source 

emissions model MOVES2010a. WVDEP 

used the Kentucky, Ohio, and West 

Virginia (KYOVA) Travel Demand 

Model, which is the most recent travel 

demand model provided by the KYOVA 

Interstate Planning Commission that 

covers the nonattainment counties in 

West Virginia. Information from the 

travel demand model combined with 

Highway Performance Monitoring 

Systems (HPMS) county-level data from 

each area were used in the emissions 

analysis. 

Additional data needed for input into 

the MOVES2010a model was provided 

by the Ohio Department of 

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Transportation (ODOT), Ohio EPA, West 

Virginia Department of Transportation 

(WVDOT), WVDEP, Kentucky 

Transportation Cabinet (KYTC), and the 

Kentucky Division of Air Quality 

(KDAQ). 

(2) Maintenance Demonstration 

On March 8, 2012, WVDEP submitted 

its maintenance plan for the West 

Virginia portion of the Area as required 

by section 175A of the CAA. WVDEP 

uses projection inventories to show that 

the Area will remain in attainment and 

developed projection inventories for an 

interim year of 2015 and a maintenance 

plan end year of 2022 to show that 

future emissions of NOX, SO2, and 

direct PM2.5 will remain at or below the 

attainment year 2008 emissions levels 

throughout the West Virginia portion of 

the Area through the year 2022. A 

maintenance demonstration need not be 

based on modeling. See Wall v. EPA, 

supra; Sierra Club v. EPA, supra. See 

also 66 FR at 53099–53100; 68 FR at 

25430–32. The projection inventories 

for the 2015 and 2022 point, area, and 

nonroad sources were based on the 2012 

and 2018 Visibility Improvement State 

and Tribal Association of the Southeast 

(VISTAS)/Association of Southeastern 

Integrated Planning (ASIP) modeling 

inventory. 

West Virginia developed the 2015 

point source inventory by interpolation 

between VISTAS/ASIP 2012 and 2018 

modeling inventory. The 2022 EGU 

inventory for PM2.5, NOX, and SO2 was 

kept the same as the VISTAS/ASIP 2018 

inventory. The 2022 non-EGU inventory 

was extrapolated from the 2012 and 

2018 inventory. Point source emissions 

for 2012 and 2018 were developed for 

EGUs and non-EGUs. For EGUs, WVDEP 

used the projection inventory developed 

by VISTAS/ASIP. VISTAS/ASIP 

analysis was based on EPA’s Integrated 

Planning Model (IPM). The VISTAS/ 

ASIP analysis projected future year 

emissions for EGUs under several 

scenarios based on the best information 

available at the time of the analysis. 

WVDEP used the ‘‘on the way’’ (OTW) 

projections, which took into account the 

reductions required by CAIR, as a basis 

for 2012 and 2018 EGU emissions. 

VISTAS/ASIP used EPA’s Economic 

Growth Analysis System (EGAS), 

Version 4.0 to make the projections for 

non-EGUs, incorporating the growth 

factors suggested in the reports entitled, 

‘‘Development of Growth Factors for 

Future Year Modeling Inventories (April 

30, 2004)’’ and ‘‘CAIR Emission 

Inventory Overview (July 23, 2004).’’ 

EPA has reviewed the documentation 

provided by WVDEP and found the 

methodologies acceptable. 

Area source emissions for 2015 were 

interpolated from the VISTAS/ASIP 

2012 and 2018 inventories. The 2022 

emissions were extrapolated from the 

VISTAS/ASIP 2012 and 2018 

inventories. Growth and controls for 

emissions were based on the 

methodologies applied by EPA for the 

CAIR analysis. Nonroad source 

emissions, including aircraft, 

locomotives, and commercial marine 

vessels (CMV) for 2015 were 

interpolated from the VISTAS/ASIP 

2012 and 2018 inventories. CMV source 

emissions from SO2 included in the 

2022 inventory were held constant at 

2018 levels because no further reduction 

in fuel sulfur content is expected. All 

other nonroad source emissions for 2022 

were extrapolated from the VISTAS/ 

ASIP 2012 and 2018 inventories. The 

2015 and 2022 onroad mobile source 

emissions were prepared using 

MOVES2010a following the same 

procedure as the 2008 inventory as 

described previously. 

EPA has determined that the 

emissions inventories discussed above 

as provided by WVDEP are approvable. 

For more information on EPA’s 

evaluation and analysis of the emissions 

inventory, see Appendix B of the State 

submittal and the May 18, 2012 TSD, 

available on line at 

www.regulations.gov, Docket ID No. 

EPA–OAR–R03–2012–0368. Table 5 

below shows the inventories for the 

2008 attainment year, the 2015 interim 

year, and the 2022 maintenance plan 

end year for the entire Area. 

TABLE 5—COMPARISON OF 2008, 2015, AND 2022 SO2, NOX, AND DIRECT PM2.5 EMISSION TOTALS FOR THE WHEELING

NONATTAINMENT AREA WV–OH (in Tpy) 

SO2 NOX PM2.5

2008 (attainment) ............................................................................................................. 67,103 35,971 6,001 

2015 (interim) ................................................................................................................... 36,843 16,204 3,436 

2015 (projected decrease) ............................................................................................... 30,260 19,767 2,565 

2022 (maintenance) ......................................................................................................... 31,487 15,390 3,472 

2022 (projected decrease) ............................................................................................... 35,616 20,581 2,529 

Table 5 shows that between 2008 and 

2015, the entire Wheeling Area is 

projected to reduce SO2 emissions by 

30,260 tpy, NOX emissions by 19,767 

tpy, and direct PM2.5 emissions by 2,565 

tpy. Between 2008 and 2022, the Area 

is projected to reduce SO2 emissions by 

35,616 tpy, NOX emissions by 20,581 

tpy, and direct PM2.5 emissions by 2,529 

tpy. Thus, the projected emissions 

inventories show that the Area will 

continue to maintain the 1997 annual 

PM2.5 NAAQS during the 10 year 

maintenance period. 

(3) Maintenance Demonstration 

Through 2023 

As noted in Section VI.4.a of this 

document, 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 10 years 

following redesignation.’’ September 4, 

1992 Calcagni Memorandum at 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. See Calcagni Memorandum 

at pp.9–10. 

As discussed in detail above, the 

State’s maintenance plan submission 

expressly documents that the Area’s 

emissions inventories will remain below 

the attainment year inventories through 

at least 2022. In addition, for the reasons 

set forth below, EPA believes that the 

State’s submission, in conjunction with 

additional supporting information, 

further demonstrates that the Area will 

continue to maintain the 1997 annual 

PM2.5 NAAQS at least through 2023: 

• Significant emissions controls will 

remain in place and will continue to 

provide reductions that will keep the 

Area in attainment. As part of a 

Federally enforceable consent decree 

with AEP, the Ohio Power Mitchell 

Plant in Marshall County was required 

starting in January 2009 to operate its 

SCR continuously to control emissions 

of NOX and to operate continuously its 

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FDG to reduce SO2 starting in December 

2007. In addition, AEP is required by 

the Federally enforceable consent 

decree to retire, retrofit, or repower 

additional units such as Kammer Units 

1–3 by the end of December 2018. 

• West Virginia has committed to 

maintain all of the control measures 

upon which West Virginia relies in its 

March 8, 2012 submittal and will 

submit any changes to EPA for approval 

as a SIP revision. 

• Emissions inventory levels for SO2

and NOX in 2022 are well below the 

attainment year inventory levels (see 

Table 5), and EPA believes that it is 

highly improbable that sudden increases 

would occur that could exceed the 

attainment year inventory levels in 

2023. 

• The mobile source contribution has 

been determined to be insignificant and 

is expected to remain insignificant in 

2023 with fleet turnover in upcoming 

years that will result in cleaner vehicles 

and cleaner fuels. 

• Air quality concentrations which 

are well below the standard, coupled 

with the emissions inventory 

projections through 2022, demonstrate 

that it would be very unlikely for a 

violation to occur in 2023. The 2009– 

2011 design value of 13.0 mg/m3

provides a sufficient margin in the event 

of any emissions increase, and the 

design value reflects a continued 

downward trend in monitored data in 

the Area for the last several years. 

Thus, even if EPA finalizes its 

proposed approval of the redesignation 

request and maintenance plan in 2013, 

EPA’s approval is based on a showing, 

in accordance with CAA section 175A, 

that West Virginia’s maintenance plan 

provides for maintenance for at least 10 

years after redesignation and clearly 

into 2023. 

(4) Monitoring Network 

EPA has determined that West 

Virginia’s maintenance plan includes a 

commitment to continue to operate its 

EPA-approved monitoring network, as 

necessary to demonstrate ongoing 

compliance with the NAAQS. West 

Virginia currently operates two PM2.5

monitors in the Wheeling Area. One is 

located in Marshall County, and the 

other one is in Ohio County. In its 

March 8, 2012 submittal, West Virginia 

stated that it will consult with EPA 

prior to making any necessary changes 

to the network and will continue to 

quality assure the monitoring data in 

accordance with the requirements of 40 

CFR part 58. 

(5) Verification of Continued 

Attainment 

To provide for tracking of the 

emission levels in the Area, WVDEP 

requires major point sources to submit 

air emissions information annually and 

prepares a new periodic inventory for 

all PM2.5 precursors every three years in 

accordance with EPA’s Air Emissions 

Reporting Requirements (AERR). EPA 

has determined that WVDEP will 

continue to compare emissions 

information to the attainment year 

inventory to assure continued 

attainment with the 1997 annual PM2.5

NAAQS and that WVDEP will use this 

information to assess emissions trends, 

as necessary. 

(6) The Maintenance Plan’s Contingency 

Measures 

The contingency plan provisions for 

maintenance plans are designed to 

promptly correct a violation of the 

NAAQS that occurs after redesignation. 

Section 175A of the CAA requires that 

a maintenance plan include such 

contingency measures as EPA deems 

necessary to ensure that a state will 

promptly correct a violation of the 

NAAQS that occurs after redesignation. 

The maintenance plan should identify 

the events that would ‘‘trigger’’ the 

adoption and implementation of a 

contingency measure(s), the 

contingency measure(s) that would be 

adopted and implemented, and the 

schedule indicating the time frame by 

which the state would adopt and 

implement the measure(s). 

The ability of the West Virginia 

portion of the Area to stay in 

compliance with the 1997 annual PM2.5

NAAQS after redesignation depends 

upon NOX and SO2 emissions in the 

Wheeling Area remaining at or below 

2008 levels. West Virginia’s 

maintenance plan projects NOX and SO2

emissions to decrease and stay below 

2008 levels through at least the year 

2022. West Virginia’s maintenance plan 

outlines the procedures for the adoption 

and implementation of contingency 

measures to further reduce emissions 

should a violation occur. 

West Virginia’s contingency measures 

include a Warning Level Response and 

an Action Level Response. An initial 

Warning Level Response is triggered 

when the average weighted annual 

mean for a single calendar year exceeds 

15.5 mg/m3 within the maintenance area. 

In that case, a study will be conducted 

to determine if the emissions trends 

show increases; if action is necessary to 

reverse emissions increases, West 

Virginia will follow the same 

procedures for control selection and 

implementation as for an Action Level 

Response, and implementation of 

necessary controls will take place as 

expeditiously as possible, but no later 

than 12 months from the end of the 

most recent calendar year. 

The Action Level Response will be 

prompted by any one of the following: 

A Warning Level Response study that 

shows emissions increases; a weighted 

annual mean over a two-year average 

that exceeds the standard; or a violation 

of the standard in the maintenance area. 

If an Action Level Response is triggered, 

West Virginia will adopt and implement 

appropriate control measures within 18 

months from the end of the year in 

which monitored air quality triggering a 

response occurs. West Virginia will also 

consider whether additional regulations 

that are not a part of the maintenance 

plan can be implemented in a timely 

manner to respond to the trigger. 

West Virginia’s candidate contingency 

measures include the following: (1) 

Diesel reduction emission strategies, (2) 

alternative fuels and diesel retrofit 

programs for fleet vehicle operations, (3) 

PM2.5, SO2, and NOX emissions offsets 

for new and modified major sources, (4) 

concrete manufacturing controls, and (5) 

additional NOX reductions. 

Additionally, West Virginia has 

identified a list of sources that could 

potentially be controlled. These include: 

Industrial, commercial and institutional 

(ICI) Boilers for SO2 and NOX controls, 

EGUs, process heaters, internal 

combustion engines, combustion 

turbines, other sources greater than 100 

tpy, fleet vehicles, concrete 

manufacturers, and aggregate processing 

plants. EPA finds that the West Virginia 

maintenance plan for the Wheeling Area 

includes appropriate contingency 

measures as necessary to ensure West 

Virginia will promptly correct any 

violation of the NAAQS that occurs after 

redesignation. For all of the reasons 

discussed above, EPA is proposing to 

approve West Virginia’s 1997 annual 

PM2.5 maintenance plan for the West 

Virginia portion of the Area as meeting 

the requirements of section 175A of the 

CAA. 

VII. Analysis of West Virginia’s 

Transportation Conformity 

Insignificance Determination for the 

Wheeling Area 

Under section 176(c) of the CAA, new 

transportation projects, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the part of the state’s air quality plan 

that addresses pollution from mobile 

sources. ‘‘Conformity’’ to the SIP means 

that transportation activities will not 

cause new air quality violations, worsen 

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existing violations, or delay timely 

attainment of a NAAQS or an interim 

milestone. 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 

(MVEBs) contained in a SIP. If a 

transportation plan does not ‘‘conform,’’ 

most new projects that would expand 

the capacity of roadways cannot go 

forward. Regulations at 40 CFR part 93 

set forth EPA policy, criteria, and 

procedures for demonstrating and 

ensuring conformity of such 

transportation activities to a SIP. 

When reviewing submitted ‘‘control 

strategy’’ SIPs or maintenance plans 

containing MVEBs, EPA must 

affirmatively find the MVEBs contained 

therein ‘‘adequate’’ for use in 

determining transportation conformity. 

The process for determining adequacy is 

set forth in the guidance, 

‘‘Transportation Conformity Rule 

Amendments for the New PM2.5 and 

PM2.5 NAAQS and Miscellaneous 

Revisions of Existing Areas; 

Transportation Conformity Rule 

Amendments; Response to Court 

Decision and Additional Rule Changes.’’ 

69 FR 40004 (July 1, 2004). After EPA 

affirmatively finds the submitted 

MVEBs are adequate for transportation 

conformity purposes, in accordance 

with the guidance, the MVEBs can be 

used by state and Federal agencies in 

determining whether proposed 

transportation projects ‘‘conform’’ to the 

SIP as required by section 176(c) of the 

CAA. 

For budgets to be approvable, they 

must meet, at a minimum, EPA’s 

adequacy criteria in 40 CFR 

93.118(e)(4). However, the 

transportation conformity rule at 40 CFR 

93.109(f) allows areas to forego 

establishment of MVEBs where it is 

demonstrated that the regional motor 

vehicle emissions for a particular 

pollutant or precursor are an 

insignificant contributor to the air 

quality problem in an area. EPA’s 

rationale for providing for insignificance 

determinations may be found in the July 

1, 2004 revision to the Transportation 

Conformity Rule. The general criteria for 

insignificance determinations, per 40 

CFR 93.109(f), are based on a number of 

factors, including the percentage of 

motor vehicle emissions in the context 

of the total SIP inventory; the current 

state of air quality as determined by 

monitoring data for the relevant 

NAAQS; the absence of SIP motor 

vehicle control measures; and the 

historical trends and future projections 

of the growth of motor vehicle 

emissions in the area. 

In West Virginia’s March 8, 2012 

submittal, the State provided 

information that projects that onroad 

mobile source NOX constitutes less than 

12 and a half percent of the Area’s total 

NOX emissions in 2015 and 2022 due to 

continuing fleet turnover and that 

onroad mobile source PM2.5 emissions 

constitute less than two and a half 

percent of the Area’s total PM2.5

emissions. Both projections took into 

consideration future vehicle miles 

traveled (VMT) growth. In addition, 

neither EPA nor the State has made any 

findings that volatile organic 

compounds (VOCs), SO2, or ammonia 

(NH3) are a significant contributor to 

PM2.5 mobile emissions. Therefore, the 

March 8, 2012 submittal meets the 

criteria in the relevant portions of 40 

CFR 93.102 and 93.118 for an 

insignificance finding, and EPA agrees 

with the determination of insignificance 

for SO2, NOX and PM2.5 for the West 

Virginia portion of the Area. As 

previously discussed, EPA already 

initiated a comment period on 

November 5, 2012 on the proposed 

insignificance determination for the 

West Virginia portion of the Area on the 

OTAQ Web site to allow for a 30-day 

review of this proposed insignificance 

determination in conjunction with this 

proposed rulemaking. EPA is proposing 

to find that West Virginia’s 

insignificance determination for 

transportation conformity is adequate. 

For more information on EPA’s 

insignificance findings, see the TSD 

dated June 5, 2012, available on line at 

www.regulations.gov, Docket ID No. 

EPA–OAR–R03–2012–0368. 

VIII. Proposed Actions 

EPA is proposing to approve the 

redesignation of the West Virginia 

portion of the Area from nonattainment 

to attainment for the 1997 annual PM2.5

NAAQS. EPA has evaluated West 

Virginia’s redesignation request and 

determined that it meets the 

redesignation criteria set forth in section 

107(d)(3)(E) of the CAA. EPA believes 

that the monitoring data demonstrate 

that the Wheeling Area has attained the 

1997 annual PM2.5 NAAQS and will 

continue to attain the standard. Final 

approval of this redesignation request 

would change the designation of the 

West Virginia portion of the Area from 

nonattainment to attainment for the 

1997 p.m.2.5 annual NAAQS. EPA is also 

proposing to approve the associated 

maintenance plan for the West Virginia 

portion of the Area submitted on March 

8, 2012, as a revision to the West 

Virginia SIP because it meets the 

requirements of section 175A of the 

CAA as described previously in this 

notice. EPA is also proposing to approve 

the insignificance determination for 

onroad motor vehicle contribution of 

PM2.5, NOX and SO2 submitted by the 

West Virginia portion of the Area in 

conjunction with West Virginia’s 

redesignation request. As noted 

previously, EPA had already initiated a 

comment period on the proposed 

insignificance determination for the 

West Virginia portion of the Area in the 

OTAQ Web site (http://www.epa.gov/ 

otaq/stateresources/transconf/ 

currsips.htm) to allow for a 30-day 

review of this proposed determination 

in conjunction with this proposed 

rulemaking. The 30-day comment 

period started on November 5, 2012 and 

will end on December 5, 2012. In 

addition, as part of the maintenance 

plan, EPA is proposing to approve the 

2005 base year emissions inventory as 

meeting the requirement in section 

172(c)(3) of the CAA. EPA is soliciting 

public comments on the issues 

discussed in this document. These 

comments will be considered before 

taking final action. 

IX. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

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73586 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Proposed Rules 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule proposing to 

approve West Virginia’s redesignation 

request, maintenance plan, 2005 base 

year emissions inventory, and 

transportation conformity insignificance 

determination for the Wheeling Area for 

the 1997 annual PM2.5 NAAQS does not 

have tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, PM2.5, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness areas. 

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

Dated: November 21, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2012–29866 Filed 12–10–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 10–90; WT Docket No. 10– 

208; DA 12–1853] 

Further Inquiry Into Issues Related to 

Mobility Fund Phase II 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Wireless 

Telecommunications Bureau and 

Wireline Competition Bureau 

(collectively, the Bureaus) seek further 

comment on specific issues relating to 

the implementation of Phase II of the 

Mobility Fund. The Bureaus also seek to 

develop a more comprehensive record 

on certain issues relating to the award 

of ongoing support for advanced mobile 

services. 

DATES: Comments are due on or before 

December 21, 2012, and reply comments 

are due on or before January 7, 2013. 

ADDRESSES: All filings in response to 

this public notice must refer to Docket 

Numbers 10–90 and 10–208. The 

Bureaus strongly encourage interested 

parties to file comments electronically. 

Comments may be submitted by any of 

the following methods: 

D Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

D Federal Communications 

Commission’s Web Site: http:// 

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

D Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. Filings can be 

sent by hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail. All filings must be 

addressed to the Commission’s 

Secretary, Attn: WTB/ASAD, Office of 

the Secretary, Federal Communications 

Commission. 

D All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th Street SW., Room TW–A325, 

Washington, DC 20554. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

D Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

D People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

FOR FURTHER INFORMATION CONTACT: Sue 

McNeil, Auctions and Spectrum Access 

Division, Wireless Telecommunications 

Bureau at (202) 418–0660. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Further 

Inquiry Into Issues Related to Mobility 

Fund Phase II (Mobility Fund Phase II 

Public Notice) released on November 27, 

2012. The complete text of the Mobility 

Fund Phase II Public Notice, as well as 

related Commission documents, is 

available for public inspection and 

copying from 8:00 a.m. to 4:30 p.m. 

Eastern Time (ET) Monday through 

Thursday or from 8:00 a.m. to 11:30 a.m. 

ET on Fridays in the FCC Reference 

Information Center, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554. 

The Mobility Fund Phase II Public 

Notice and related Commission 

documents also may be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc. 

(BCPI), 445 12th Street SW., Room CY– 

B402, Washington, DC 20554, telephone 

202–488–5300, fax 202–488–5563, or 

you may contact BCPI at its Web site: 

http://www.BCPIWEB.com. When 

ordering documents from BCPI, please 

provide the appropriate FCC document 

number, for example, DA 12–1853. 

I. Introduction 

1. The Bureaus seek further comment 

on a limited number of specific issues 

relating to the implementation of Phase 

II of the Mobility Fund. As established 

in the USF/ICC Transformation Order 

and FNPRM, 76 FC 78383, December 16, 

2011, in Mobility Fund Phase II the 

Commission will award $500 million 

annually to ensure the availability of 

mobile broadband and high quality 

voice services in certain areas. Building 

on the comments previously filed in 

response to the USF/ICC 

Transformation Order and FNPRM and 

the Bureaus’ experience in 

implementing a reverse auction to 

award one-time Phase I support, the 

Bureaus seek to develop a more 

comprehensive record on certain issues 

related to the award of ongoing support 

for advanced mobile services. In 

considering the issues related to 

Mobility Fund Phase II, the Bureaus ask 

commenters keep in mind that Phase II 

support is not one-time support, but is 

ongoing support aimed at expanding 

and sustaining mobile services. 

II. Background 

2. In the USF/ICC Transformation 

Order and FNPRM, the Commission 

comprehensively reformed and 

modernized the universal service highcost program. Among other things, for 

the first time, the Commission explicitly 

recognized the important benefits of and 

demand for mobile services through the 

creation of a two-phase Mobility Fund 

within the high-cost program. 

3. For Phase I, the Commission 

allocated $300 million in one-time 

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