Federal Register / Vol. 78, No. 130 / Monday, July 8, 2013 / Proposed Rules 40655 

Casper, Wyoming 82602. The public 

hearings will be held from 1 p.m. until 

5 p.m. and again from 6 p.m. until 8 

p.m. at both locations. The comment 

period for the proposed rule published 

June 10, 2013 at 78 FR 34738 is 

extended. Comments must be received 

on or before August 26, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Laurel Dygowski, EPA Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129, (303) 

312–6144, dygowski.laurel@epa.gov. 

SUPPLEMENTARY INFORMATION: On June 

10, 2013, we published a proposed rule 

partially approving and partially 

disapproving Wyoming’s 40 CFR 

51.309(g) regional haze SIP. 78 FR 

34738. In our June 10, 2013 proposed 

rule, we provided notification that we 

were holding a public hearing on June 

24, 2013, in Cheyenne, Wyoming. To 

partially accommodate requests for both 

additional time to prepare for public 

hearings and an extension to the public 

comment period in letters from the 

Governor of Wyoming on June 13, 2013, 

the Wyoming Congressional Delegation 

on June 14, 2013, and the Wyoming 

Department of Environmental Quality 

on June 14, 2013, we have scheduled 

additional public hearings as stated 

above and extended the public comment 

period to August 26, 2013. 

The public hearings will provide 

interested parties the opportunity to 

present information and opinions to 

EPA concerning our proposal. Interested 

parties may also submit written 

comments, as discussed in the proposed 

rulemaking. Written statements and 

supporting information submitted 

during the comment period will be 

considered with the same weight as any 

oral comments and supporting 

information presented at the public 

hearings. 

Dated: June 21, 2013. 

Howard M. Cantor, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2013–16295 Filed 7–5–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R03–OAR–2012–0386; FRL–9829–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Redesignation of the West 

Virginia Portion of the ParkersburgMarietta, WV–OH 1997 Annual Fine 

Particulate Matter Nonattainment Area 

to Attainment and Approval of the 

Associated Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; supplemental. 

SUMMARY: EPA is issuing a supplement 

to its proposed approval of the State of 

West Virginia’s request to redesignate 

the West Virginia portion of the 

Parkersburg-Marietta, WV–OH fine 

particulate matter (PM2.5) nonattainment 

area (Parkersburg-Marietta Area or Area) 

to attainment for the 1997 annual PM2.5

national ambient air quality standard 

(NAAQS). This supplemental proposal 

revises and expands the basis for 

proposing approval of the State’s 

request in light of developments since 

EPA issued its initial proposal on 

December 11, 2012. This supplemental 

proposal addresses the effects of two 

decisions of the United States Court of 

Appeals for the District of Columbia 

(D.C. Circuit Court): The D.C. Circuit 

Court’s August 21, 2012 decision to 

vacate and remand to EPA the CrossState Air Pollution Control Rule 

(CSAPR); and the D.C. Circuit Court’s 

January 4, 2013 decision to remand to 

EPA two final rules implementing the 

PM2.5 NAAQS. EPA is seeking comment 

only on the issues raised in this 

supplemental proposal and is not 

reopening for comment other issues 

raised in its prior proposal. 

DATES: Written comments must be 

received on or before August 7, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0386 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

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

C. Mail: EPA–R03–OAR–2012–0386, 

Cristina Fernandez, 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– 

0386. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 25304. 


tkelley on DSK3SPTVN1PROD with PROPOSALS
40656 Federal Register / Vol. 78, No. 130 / Monday, July 8, 2013 / Proposed Rules 

FOR FURTHER INFORMATION CONTACT: Rose 

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

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Specific Issues on Which EPA Is Taking 

Comments 

A. Effect of the August 21, 2012 D.C. 

Circuit Court Decision Regarding EPA’s 

CSAPR 

1. Background 

2. Supplemental Proposal on This Issue 

B. Effect of the January 4, 2013 D.C. Circuit 

Court Decision Regarding the PM2.5

Implementation Under Subpart 4 

1. Background 

2. Supplemental Proposal on This Issue 

a. Applicable Requirements for Purposes of 

Evaluating the Redesignation Request 

b. Subpart 4 Requirements and 

Parkersburg-Marietta Area’s 

Redesignation Request 

c. Subpart 4 and Control of PM2.5

Precursors 

d. Maintenance Plan and Evaluation of 

Precursors 

III. Summary of Proposed Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On March 5, 2012, the State of West 

Virginia through the West Virginia 

Department of Environmental Protection 

(WVDEP) formally submitted a request 

to redesignate the West Virginia portion 

of the Parkersburg-Marietta Area from 

nonattainment to attainment of the 1997 

annual PM2.5 NAAQS. Concurrently, 

West Virginia submitted a maintenance 

plan for the Area as a SIP revision to 

ensure continued attainment throughout 

the Area over the next 10 years. 

On December 11, 2012 (77 FR 73560), 

EPA published a notice of proposed 

rulemaking (NPR or the December 11, 

2012 NPR) determining that the 

Parkersburg-Marietta Area has attained 

the 1997 annual PM2.5 NAAQS and that 

the Area has met the requirements for 

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

of the Clean Air Act (CAA) upon 

approval of the base year emissions 

inventory. On December 12, 2012 (77 FR 

73924), EPA approved the base year 

emissions inventory which included 

emissions estimates that cover the 

general source categories of point, area, 

nonroad mobile, onroad mobile, and 

biogenic sources. The pollutants that 

comprise the inventory are nitrogen 

oxides (NOX), volatile organic 

compounds (VOCs), PM2.5, coarse 

particles (PM10), ammonia (NH3), and 

sulfur dioxide (SO2). This emissions 

inventory satisfies the requirement of 

section 172(c)(3) of the CAA, which 

requires states to submit a 

comprehensive, accurate, and current 

emissions inventory for a nonattainment 

area. For purposes of the PM2.5 NAAQS, 

this emissions inventory addresses not 

only direct emissions of PM2.5, but also 

emissions of all precursors with the 

potential to participate in PM2.5

formation, i.e., SO2, NOX, VOC and NH3. 

In the December 11, 2012 NPR, EPA 

proposed several actions related to the 

redesignation of the Area to attainment 

for the 1997 annual PM2.5 NAAQS. First, 

EPA proposed to approve West 

Virginia’s request to change the legal 

definition of the West Virginia portion 

of the Parkersburg- Marietta Area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. Second, 

EPA proposed to approve the 

maintenance plan for the West Virginia 

portion of the Area as a revision to the 

West Virginia SIP because the plan 

meets the requirements of section 175A 

of the CAA. Third, EPA proposed to 

approve the insignificance 

determination for the onroad motor 

vehicle contribution of PM2.5, NOX and 

SO2 in the West Virginia portion of the 

Area for transportation conformity 

purposes. EPA received no comments in 

response to the December 11, 2012 NPR 

proposing approval of the above 

described redesignation request, 

maintenance plan and the insignificance 

determination. EPA is not reopening the 

public comment period to submit 

comment on the issues addressed in the 

December 11, 2012 NPR. 

EPA today is issuing a supplement to 

its December 11, 2012 NPR. This 

supplemental NPR addresses two recent 

decisions of the D.C. Circuit Court 

which affect the proposed redesignation 

and which have arisen since the 

issuance of the NPR: (1) The D.C. Circuit 

Court’s August 21, 2012 decision to 

vacate and remand to EPA the CSAPR 

and (2) the D.C. Circuit Court’s January 

4, 2013 decision to remand to EPA two 

final rules implementing the PM2.5

NAAQS. Therefore, EPA’s supplemental 

proposal revises and expands the basis 

for EPA’s proposed approval of West 

Virginia’s request to designate the 

Parkersburg-Marietta Area to attainment 

for the 1997 annual PM2.5 NAAQS, in 

light of these developments since EPA’s 

initial NPR. 

II. Specific Issues on Which EPA Is 

Taking Comments 

A. Effect of the August 21, 2012 D.C. 

Circuit Court Decision Regarding EPA’s 

CSAPR 

1. Background 

In its December 11, 2012 NPR to 

redesignate the Parkersburg-Marietta 

Area, EPA proposed to determine that 

the emission reduction requirements 

that contributed to attainment of the 

1997 annual PM2.5 standard in the 

nonattainment area could be considered 

permanent and enforceable. EPA 

recently promulgated CSAPR (76 FR 

48208, August 8, 2011) to replace Clean 

Air Interstate Rule (CAIR), which has 

been in place since 2005. See 76 FR 

59517. CAIR requires significant 

reductions in emissions of SO2 and NOX

from electric generating units to limit 

the interstate transport of these 

pollutants and the ozone and PM2.5 they 

form in the atmosphere. See 76 FR 

70093. The D.C. Circuit Court initially 

vacated CAIR, North Carolina v. EPA, 

531 F.3d 896 (D.C. Cir. 2008), but 

ultimately remanded that 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). 

CSAPR included regulatory changes 

to sunset (i.e., discontinue) CAIR and 

the CAIR Federal Implementation Plans 

(FIPs) for control periods in 2012 and 

beyond. See 76 FR 48322. Although 

West Virginia’s redesignation request 

and maintenance plan relied on 

reductions associated with CAIR, EPA 

proposed to approve the request based 

in part on the fact that CAIR was to 

remain in force through the end of 2011 

and CSAPR would achieve ‘‘similar or 

greater reductions in the relevant areas 

in 2012 and beyond.’’ See 76 FR 59517. 

On December 30, 2011, the D.C. 

Circuit Court issued an order addressing 

the status of CSAPR and CAIR in 

response to motions filed by numerous 

parties seeking a stay of CSAPR pending 

judicial review. In that order, the D.C. 

Circuit Court stayed CSAPR pending 

resolution of the petitions for review of 

that rule in EME Homer City Generation, 

L.P. v. EPA (No. 11–1302 and 

consolidated cases). The D.C. Circuit 

Court also indicated that EPA was 

expected to continue to administer 

CAIR in the interim until judicial 

review of CSAPR was completed. 

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

Court issued the decision in EME Homer 

City, to vacate and remand CSAPR and 

ordered EPA to continue administering 

CAIR ‘‘pending . . . development of a 

valid replacement.’’ EME Homer City at 

38. The D.C. Circuit Court denied all 

petitions for rehearing on January 24, 

2013. EPA and other parties 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. 


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2. Supplemental Proposal on This Issue 

In light of these unique circumstances 

and for the reasons explained below, 

EPA in this portion of its supplemental 

rule is seeking comment limited to the 

impact of the D.C. Circuit Court’s 

decision in EME Homer City ruling on 

EPA’s proposal to approve the 

redesignation request and the related 

SIP revisions for the ParkersburgMarietta Area, including West Virginia’s 

plan for maintaining attainment of the 

1997 annual PM2.5 standard in the Area. 

As explained in greater detail below, to 

the extent that attainment is due to 

emission reductions associated with 

CAIR, EPA is here determining that 

those reductions are sufficiently 

permanent and enforceable for purposes 

of CAA sections 107(d)(3)(E)(iii) and 

175A. 

As directed by the D.C. Circuit Court, 

CAIR remains in place and enforceable 

until EPA promulgates a valid 

replacement rule to substitute for CAIR. 

West Virginia’s SIP revision lists CAIR 

as a control measure that was adopted 

by the State in 2006 and required 

compliance by January 1, 2009. CAIR 

was thus in place and getting emission 

reductions when Parkersburg-Marietta 

began monitoring attainment of the 1997 

annual PM2.5 standard during the 2006– 

2008 time period. The quality-assured, 

certified monitoring data continues to 

show the area in attainment of the 1997 

PM2.5 standard through 2011. 

To the extent that West Virginia is 

relying on CAIR in its maintenance plan 

to support continued attainment into 

the future, the recent directive from the 

D.C. Circuit Court in EME Homer City 

ensures that the reductions associated 

with CAIR will be permanent and 

enforceable for the necessary time 

period. EPA has been ordered by the 

D.C. Circuit Court to develop a new rule 

to address interstate transport to replace 

CSAPR, and the opinion makes clear 

that after promulgating that new rule 

EPA must provide states an opportunity 

to draft and submit SIPs to implement 

that rule. Thus, CAIR will remain in 

place until EPA has promulgated a final 

rule through a notice-and-comment 

rulemaking process, states have had an 

opportunity to draft and submit SIPs in 

response to it, 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 D.C. Circuit Court’s 

clear instruction to EPA is that it must 

continue to administer CAIR until a 

valid replacement exists, and thus EPA 

believes that CAIR emission reductions 

may be relied upon until the necessary 

actions are taken by EPA and states to 

administer CAIR’s replacement. 

Furthermore, the D.C. Circuit Court’s 

instruction provides an additional 

backstop by definition, any rule that 

replaces CAIR and meets the D.C. 

Circuit Court’s direction would require 

upwind states to have SIPs that 

eliminate any significant contributions 

to downwind nonattainment and 

prevent interference with maintenance 

in downwind areas. 

Moreover, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the D.C. Circuit Court 

emphasized that the consequences of 

vacating CAIR ‘‘might be more severe 

now in light of the reliance interests 

accumulated over the intervening four 

years.’’ EME Homer City, 696 F.3d at 38. 

The accumulated reliance interests 

include the interests of states that 

reasonably assumed they could rely on 

reductions associated with CAIR which 

brought certain nonattainment areas 

into attainment with the NAAQS. If EPA 

were prevented from relying on 

reductions associated with CAIR in 

redesignation actions, states would be 

forced to impose additional, redundant 

reductions on top of those achieved by 

CAIR. EPA believes this is precisely the 

type of irrational result the D.C. Circuit 

Court sought to avoid by ordering EPA 

to continue administering CAIR. For 

these reasons also, EPA believes it is 

appropriate to allow states to rely on 

CAIR, and the existing emissions 

reductions achieved by CAIR, as 

sufficiently permanent and enforceable 

for regulatory purposes such as 

redesignations. Following promulgation 

of the replacement rule for CSAPR, EPA 

will review existing SIPs as appropriate 

to identify whether there are any issues 

that need to be addressed. 

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

Circuit Court Decision Regarding the 

PM2.5 Implementation Under Subpart 4 

1. Background 

On January 4, 2013, in Natural 

Resources Defense Council v. EPA, the 

D.C. Circuit Court remanded to EPA the 

‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’). 706 F.3d 428 

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

found that EPA erred in implementing 

the 1997 PM2.5 NAAQS pursuant to the 

general implementation provisions of 

subpart 1 of Part D of Title I of the CAA, 

rather than the particulate-matterspecific provisions of subpart 4 of Part 

D of Title I. 

2. Supplemental Proposal on This Issue 

In this portion of EPA’s supplemental 

proposal, EPA is soliciting comment on 

the limited issue of the effect of the D.C. 

Circuit Court’s January 4, 2013 ruling on 

the proposed redesignation. As 

explained below, EPA is proposing to 

determine that the D.C. Circuit Court’s 

January 4, 2013 decision does not 

prevent EPA from redesignating the 

Parkersburg-Marietta Area to 

attainment. Even in light of the D.C. 

Circuit Court’s decision, redesignation 

for this Area is appropriate under the 

CAA and EPA’s longstanding 

interpretations of the CAA’s provisions 

regarding redesignation. EPA first 

explains its longstanding interpretation 

that requirements that are imposed, or 

that become due, after a complete 

redesignation request is submitted for 

an area that is attaining the standard, are 

not applicable for purposes of 

evaluating a redesignation request. 

Second, EPA then shows that, even if 

EPA applies the subpart 4 requirements 

to the Parkersburg-Marietta Area 

redesignation request and disregards the 

provisions of its 1997 PM2.5

implementation rule recently remanded 

by the D.C. Circuit Court, the State’s 

request for redesignation of this Area 

still qualifies for approval. EPA’s 

discussion takes into account the effect 

of the D.C. Circuit Court’s ruling on the 

Area’s maintenance plan, which EPA 

views as approvable when subpart 4 

requirements are considered. 

a. Applicable Requirements for 

Purposes of Evaluating the 

Redesignation Request 

With respect to the 1997 PM2.5

Implementation Rule, the D.C. Circuit 

Court’s January 4, 2013 ruling rejected 

EPA’s reasons for implementing the 

PM2.5 NAAQS solely in accordance with 

the provisions of subpart 1, and 

remanded that matter to EPA, so that it 

could address implementation of the 

1997 PM2.5 NAAQS under subpart 4 of 

Part D of the CAA, in addition to 

subpart 1. For the purposes of 

evaluating West Virginia’s redesignation 

request for the Parkersburg-Marietta 

Area, to the extent that implementation 

under subpart 4 would impose 

additional requirements for areas 

designated nonattainment, EPA believes 

that those requirements are not 

‘‘applicable’’ for the purposes of section 

107(d)(3)(E) of the CAA, and thus EPA 

is not required to consider subpart 4 

requirements with respect to the 

Parkersburg-Marietta Area 

redesignation. Under its longstanding 


tkelley on DSK3SPTVN1PROD with PROPOSALS
40658 Federal Register / Vol. 78, No. 130 / Monday, July 8, 2013 / Proposed Rules 

1Applicable 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. 

2Sierra Club v. Whitman was discussed and 

distinguished in a recent D.C. Circuit Court 

decision that addressed retroactivity in a quite 

different context, where, unlike the situation here, 

EPA sought to give its regulations retroactive effect. 

National Petrochemical and Refiners Ass’n v. EPA. 

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

643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. 

Ct. 571 (2011). 

interpretation of the CAA, EPA has 

interpreted section 107(d)(3)(E) to mean, 

as a threshold matter, that the part D 

provisions which are ‘‘applicable’’ and 

which must be approved in order for 

EPA to redesignate an area include only 

those which came due prior to a state’s 

submittal of a complete redesignation 

request. See ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992 (Calcagni memorandum). See also 

‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) on or after 

November 15, 1992,’’ Memorandum 

from Michael Shapiro, Acting Assistant 

Administrator, Air and Radiation, 

September 17, 1993 (Shapiro 

memorandum); Final Redesignation of 

Detroit-Ann Arbor, (60 FR 12459, 

12465–66, March 7, 1995); Final 

Redesignation of St. Louis, Missouri, (68 

FR 25418, 25424–27, May 12, 2003); 

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

(7th Cir. 2004) (upholding EPA’s 

redesignation rulemaking applying this 

interpretation and expressly rejecting 

Sierra Club’s view that the meaning of 

‘‘applicable’’ under the statute is 

‘‘whatever should have been in the plan 

at the time of attainment rather than 

whatever actually was in the plan and 

already implemented or due at the time 

of attainment’’).1 In this case, at the time 

that West Virginia 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 Parkersburg-Marietta 

Area redesignation, the subpart 4 

requirements were not due at the time 

West Virginia submitted the 

redesignation request is in keeping with 

the EPA’s interpretation of subpart 2 

requirements for subpart 1 ozone areas 

redesignated subsequent to the D.C. 

Circuit Court’s decision in South Coast 

Air Quality Mgmt. Dist. v. EPA, 472 F.3d 

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

D.C. Circuit Court found that EPA was 

not permitted to implement the 1997 8- 

hour ozone standard solely under 

subpart 1, and held that EPA was 

required under the statute to implement 

the standard under the ozone-specific 

requirements of subpart 2 as well. 

Subsequent to the 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) of the CAA. 

EPA’s interpretation derives from the 

provisions of section 107(d)(3) of the 

CAA. Section 107(d)(3)(E)(v) states that, 

for an area to be redesignated, a state 

must meet ‘‘all requirements 

‘applicable’ to the area under section 

110 and part D.’’ Section 107(d)(3)(E)(ii) 

provides that EPA must have fully 

approved the ‘‘applicable’’ SIP for the 

area seeking redesignation. These two 

sections read together support EPA’s 

interpretation of ‘‘applicable’’ as only 

those requirements that came due prior 

to submission of a complete 

redesignation request. First, holding 

states to an ongoing obligation to adopt 

new CAA requirements that arose after 

the state submitted its redesignation 

request, in order to be redesignated, 

would make it problematic or 

impossible for EPA to act on 

redesignation requests in accordance 

with the 18-month deadline Congress 

set for EPA action in section 

107(d)(3)(D). If ‘‘applicable 

requirements’’ were interpreted to be a 

continuing flow of requirements with no 

reasonable limitation, states, after 

submitting a redesignation request, 

would be forced continuously to make 

additional SIP submissions that in turn 

would require EPA to undertake further 

notice-and-comment rulemaking actions 

to act on those submissions. This would 

create a regime of unceasing rulemaking 

that would delay action on the 

redesignation request beyond the 18- 

month timeframe provided by the CAA 

for this purpose. 

Second, a fundamental premise for 

redesignating a nonattainment area to 

attainment is that the area has attained 

the relevant NAAQS due to emission 

reductions from existing controls. Thus, 

an area for which a redesignation 

request has been submitted would have 

already attained the NAAQS as a result 

of satisfying statutory requirements that 

came due prior to the submission of the 

request. Absent a showing that 

unadopted and unimplemented 

requirements are necessary for future 

maintenance, it is reasonable to view 

the requirements applicable for 

purposes of evaluating the redesignation 

request as including only those SIP 

requirements that have already come 

due. These are the requirements that led 

to attainment of the NAAQS. To require, 

for redesignation approval, that a state 

also satisfy additional SIP requirements 

coming due after the state submits its 

complete redesignation request, and 

while EPA is reviewing it, would 

compel the state to do more than is 

necessary to attain the NAAQS, without 

a showing that the additional 

requirements are necessary for 

maintenance. 

In the context of this redesignation, 

the timing and nature of the D.C. Circuit 

Court’s January 4, 2013 decision in 

NRDC v. EPA compound the 

consequences of imposing requirements 

that come due after the redesignation 

request is submitted. West Virginia 

submitted its redesignation request on 

March 5, 2012, but the D.C. Circuit 

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 West Virginia’s fullycompleted and pending redesignation 

request to comply now with 

requirements of subpart 4 that the D.C. 

Circuit Court announced only on 

January 4, 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 

Court recognized the inequity of this 

type of retroactive impact in Sierra Club 

v. Whitman, 285 F.3d 63 (D.C. Cir. 

2002),2 where it upheld the D.C. District 

Court’s ruling refusing to make 

retroactive EPA’s determination that the 

St. Louis area did not meet its 

attainment deadline. In that case, 

petitioners urged the D.C. Circuit Court 

to make EPA’s nonattainment 

determination effective as of the date 

that the statute required, rather than the 

later date on which EPA actually made 

the determination. The D.C. Circuit 

Court rejected this view, stating that 

applying it ‘‘would likely impose large 

costs on States, which would face fines 


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3PM10 refers to particulates nominally 10 

micrometers in diameter or smaller. 

4The potential effect of section 189(e) on section 

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

redesignation is discussed below. 

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

milestone requirements, contingency measures. 

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 West Virginia 

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 D.C. Circuit Court in 

Sierra Club v. Whitman. 

b. Subpart 4 Requirements and 

Parkersburg-Marietta Area’s 

Redesignation Request 

Even if EPA were to take the view that 

the D.C. Circuit Court’s January 4, 2013 

decision requires that, in the context of 

pending redesignations, subpart 4 

requirements were due and in effect at 

the time the State submitted its 

redesignation request, EPA proposes to 

determine that the Parkersburg-Marietta 

Area still qualifies for redesignation to 

attainment. As explained below, EPA 

believes that the redesignation request 

for the Parkersburg-Marietta 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 Parkersburg-Marietta 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 PM103 nonattainment 

areas, and under the D.C. Circuit Court’s 

January 4, 2013 decision in NRDC v. 

EPA, these same statutory requirements 

also apply for PM2.5 nonattainment 

areas. EPA has longstanding general 

guidance that interprets the 1990 

amendments to the CAA, making 

recommendations to states for meeting 

the statutory requirements for SIPs for 

nonattainment areas. See, ‘‘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 PM10

requirements.’’ (57 FR 13538, April 16, 

1992). EPA’s December 11, 2012 NPR 

for this redesignation action addressed 

how the Parkersburg-Marietta Area 

meets the requirements for 

redesignation under subpart 1. These 

subpart 1 requirements include, among 

other things, provisions for attainment 

demonstrations, reasonably available 

control measures (RACM), reasonable 

further progress (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, EPA is considering the 

Parkersburg-Marietta Area to be a 

‘‘moderate’’ PM2.5 nonattainment area. 

Under section 188 of the CAA, all areas 

designated nonattainment areas under 

subpart 4 would initially be classified 

by operation of law as ‘‘moderate’’ 

nonattainment areas, and would remain 

moderate nonattainment areas unless 

and until EPA reclassifies the area as a 

‘‘serious’’ nonattainment area. 

Accordingly, EPA believes that it is 

appropriate to limit the evaluation of 

the potential impact of subpart 4 

requirements to those that would be 

applicable to moderate nonattainment 

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

4 apply to moderate nonattainment 

areas and include the following: (1) An 

approved permit program for 

construction of new and modified major 

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

(2) an attainment demonstration (section 

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

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

quantitative milestones demonstrating 

RFP toward attainment by the 

applicable attainment date (section 

189(c)). 

The permit requirements of subpart 4, 

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

refer to and apply the subpart 1 permit 

provisions requirements of sections 172 

and 173 to PM10, without adding to 

them. Consequently, EPA believes that 

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

impose for redesignation purposes any 

additional requirements for moderate 

areas beyond those contained in subpart 

1.4 In any event, in the context of 

redesignation, EPA has long relied on 

the interpretation that a fully approved 

nonattainment new source review 

program is not considered an applicable 

requirement for redesignation, provided 

the area can maintain the standard with 

a prevention of significant deterioration 

(PSD) program after redesignation. A 

detailed rationale for this view is 

described in a memorandum from Mary 

Nichols, Assistant Administrator for Air 

and Radiation, dated October 14, 1994, 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ See also 

rulemakings for Detroit, Michigan (60 

FR 12467–12468, March 7, 1995); 

Cleveland-Akron-Lorain, Ohio (61 FR 

20458, 20469–20470, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

October 23, 2001); and Grand Rapids, 

Michigan (61 FR 31834–31837, June 21, 

1996). 

With respect to the specific 

attainment planning requirements under 

subpart 4,5 when EPA evaluates a 

redesignation request under either 

subpart 1 and/or 4, any area that is 

attaining the PM2.5 standard is viewed 

as having satisfied the attainment 

planning requirements for these 

subparts. For redesignations, EPA has 

for many years interpreted 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.’’ See General 

Preamble for the Interpretation of Title 

I of the Clean Air Act Amendments of 

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

1992). 

The General Preamble also explained 

that: ‘‘[t]he section 172(c)(9) 

requirements are directed at ensuring 

RFP and attainment by the applicable 

date. These requirements no longer 

apply when an area has attained the 

standard and is eligible for 

redesignation. Furthermore, section 

175A for maintenance plans . . . 

provides specific requirements for 

contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas.’’ Id. EPA 

similarly stated in its 1992 Calcagni 

memorandum that, ‘‘The requirements 

for reasonable further progress and other 

measures needed for attainment will not 

apply for redesignations because they 

only have meaning for areas not 

attaining the standard.’’ 

It is evident that even if we were to 

consider the D.C. Circuit Court’s January 

4, 2013 decision in NRDC v. EPA to 


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6As EPA has explained above, we do not believe 

that the D.C. Circuit Court’s January 4, 2013 

decision should be interpreted so as to impose these 

requirements on the states retroactively. Sierra Club 

v. Whitman, supra. 

7Under either subpart 1 or subpart 4, for 

purposes of demonstrating attainment as 

expeditiously as practicable, a state is required to 

evaluate all economically and technologically 

feasible control measures for direct PM emissions 

and precursor emissions, and adopt those measures 

that are deemed reasonably available. 

mean that attainment-related 

requirements specific to subpart 4 

should be imposed retroactively 6 and 

thus are now past due, those 

requirements do not apply to an area 

that is attaining the 1997 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) of the CAA 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. 

In its December 11, 2012 NPR for this 

action, EPA proposed to determine that 

the Parkersburg-Marietta Area has 

attained the 1997 PM2.5 NAAQS and 

therefore meets the attainment-related 

plan requirements of subpart 1. Under 

its longstanding interpretation, EPA is 

proposing to determine here that the 

Area also meets the attainment-related 

plan requirements of subpart 4. 

Thus, EPA is proposing to conclude 

that the requirements to submit an 

attainment demonstration under 

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

under sections 172(c)(1) and 

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

189(c)(1), and contingency requirements 

under section 172(c)(9) of the CAA are 

satisfied for purposes of evaluating the 

redesignation request. 

c. Subpart 4 and Control of PM2.5

Precursors 

The DC Circuit Court in NRDC v. EPA 

remanded to EPA the two rules at issue 

in the case with instructions to EPA to 

re-promulgate them consistent with the 

requirements of subpart 4. EPA in this 

section addresses the DC Circuit Court’s 

opinion with respect to PM2.5

precursors. While past implementation 

of subpart 4 for PM10 has allowed for 

control of PM10 precursors such as NOX

from major stationary, mobile, and area 

sources in order to attain the standard 

as expeditiously as practicable, section 

189(e) of the CAA specifically provides 

that control requirements for major 

stationary sources of direct PM10 shall 

also apply to PM10 precursors from 

those sources, except where EPA 

determines that major stationary sources 

of such precursors ‘‘do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ 

EPA’s 1997 PM2.5 Implementation 

Rule, remanded by the DC Circuit Court, 

contained rebuttable presumptions 

concerning certain PM2.5 precursors 

applicable to attainment plans and 

control measures related to those plans. 

Specifically, in 40 CFR 51.1002, EPA 

provided, among other things, that a 

state was ‘‘not required to address VOC 

[and NH3] as . . . PM2.5 attainment plan 

precursor[s] and to evaluate sources of 

VOC [and NH3] emissions in the State 

for control measures.’’ EPA intended 

these to be rebuttable presumptions. 

EPA established these presumptions at 

the time because of uncertainties 

regarding the emission inventories for 

these pollutants and the effectiveness of 

specific control measures in various 

regions of the country in reducing PM2.5

concentrations. EPA also left open the 

possibility for such regulation of NH3

and VOC in specific areas where that 

was necessary. 

The DC Circuit Court in its January 4, 

2013 decision made reference to both 

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

stated that, ‘‘In light of our disposition, 

we need not address the petitioners’ 

challenge to the presumptions in [40 

CFR 51.1002] that NH3 and VOCs are 

not PM2.5 precursors, as subpart 4 

expressly governs precursor 

presumptions.’’ NRDC v. EPA, at 27, 

n.10. 

Elsewhere in the DC Circuit Court’s 

opinion, however, the Court observed: 

‘‘NH3 is a precursor to fine particulate 

matter, making it a precursor to both 

PM2.5 and PM10. For a PM10

nonattainment area governed by subpart 

4, a precursor is presumptively 

regulated. See 42 U.S.C. § 7513a(e) 

[section 189(e)].’’ Id. at 21, n.7. 

For a number of reasons, EPA believes 

that its proposed redesignation of the 

Parkersburg-Marietta Area is consistent 

with the DC Circuit Court’s decision on 

this aspect of subpart 4. First, while the 

DC Circuit Court, citing section 189(e), 

stated that ‘‘for a PM10 area governed by 

subpart 4, a precursor is presumptively 

regulated,’’ the DC Circuit Court 

expressly declined to decide the specific 

challenge to EPA’s 1997 PM2.5

implementation rule provisions 

regarding NH3 and VOC as precursors. 

The DC Circuit Court had no occasion 

to reach whether and how it was 

substantively necessary to regulate any 

specific precursor in a particular PM2.5

nonattainment area, and did not address 

what might be necessary for purposes of 

acting upon a redesignation request. 

However, even if EPA takes the view 

that the requirements of subpart 4 were 

deemed applicable at the time the state 

submitted the redesignation request, 

and disregards the implementation 

rule’s rebuttable presumptions regarding 

NH3 and VOC as PM2.5 precursors, the 

regulatory consequence would be to 

consider the need for regulation of all 

precursors from any sources in the area 

to demonstrate attainment and to apply 

the section 189(e) provisions to major 

stationary sources of precursors. In the 

case of Parkersburg-Marietta Area, EPA 

believes that doing so is consistent with 

proposing redesignation of the Area for 

the 1997 PM2.5 standard. The 

Parkersburg-Marietta Area has attained 

the standard without any specific 

additional controls of NH3 and VOC 

emissions from any sources in the area. 

Precursors in subpart 4 are 

specifically regulated under the 

provisions of section 189(e), which 

requires, with important exceptions, 

control requirements for major 

stationary sources of PM10 precursors.7

Under subpart 1 and EPA’s prior 

implementation rule, all major 

stationary sources of PM2.5 precursors 

were subject to regulation, with the 

exception of NH3 and VOC. Thus, we 

must address here whether additional 

controls of NH3 and VOC from major 

stationary sources are required under 

section 189(e) of subpart 4 in order to 

redesignate the Parkersburg-Marietta 

Area for the 1997 annual PM2.5


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8The Parkersburg-Marietta Area has reduced VOC 

emissions through the implementation of various 

control programs including VOC Reasonably 

Available Control Technology regulations 

(45CSR21) and various onroad and nonroad motor 

vehicle control programs. 

9See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans for California—San Joaquin 

Valley PM10 Nonattainment Area; Serious Area Plan 

for Nonattainment of the 24-Hour and Annual PM10

Standards,’’ 69 FR 30006 (May 26, 2004) (approving 

a PM10 attainment plan that impose controls on 

direct PM10 and NOX emissions and did not impose 

controls on SO2, VOC, or NH3 emissions). 

10See, e.g., Assoc. of Irritated Residents v. EPA 

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

standard. As explained below, we do 

not believe that any additional controls 

of NH3 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 CAA requirements 

may suffice to relieve a state from the 

need to adopt precursor controls under 

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

this supplemental proposal proposes to 

determine that the West Virginia SIP has 

met the provisions of section 189(e) 

with respect to NH3 and VOCs as 

precursors. This proposed supplemental 

determination is based on EPA’s 

findings that (1) the ParkersburgMarietta Area contains no major 

stationary sources of NH3, and (2) 

existing major stationary sources of VOC 

are adequately controlled under other 

provisions of the CAA regulating the 

ozone NAAQS.8 In the alternative, EPA 

proposes to determine that, under the 

express exception provisions of section 

189(e), and in the context of the 

redesignation of the ParkersburgMarietta Area, which is attaining the 

1997 annual PM2.5 standard, at present 

VOC and NH3 precursors from major 

stationary sources do not contribute 

significantly to levels exceeding the 

1997 annual PM2.5 standard in the 

Parkersburg-Marietta 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 EPA regards the DC 

Circuit Court’s January 4, 2013 decision 

as calling for ‘‘presumptive regulation’’ 

of NH3 and VOC for PM2.5 under the 

attainment planning provisions of 

subpart 4, those provisions in and of 

themselves do not require additional 

controls of these precursors for an area 

that already qualifies for redesignation. 

Nor does EPA believe that requiring 

West Virginia to address precursors 

differently than they have already 

would result in a substantively different 

outcome. 

Although, as EPA has emphasized, its 

consideration here of precursor 

requirements under subpart 4 is in the 

context of a redesignation to attainment, 

EPA’s existing interpretation of subpart 

4 requirements with respect to 

precursors in attainment plans for PM10

contemplates that states may develop 

attainment plans that regulate only 

those precursors that are necessary for 

purposes of attainment in the area in 

question, i.e., states may determine that 

only certain precursors need be 

regulated for attainment and control 

purposes.9 Courts have upheld this 

approach to the requirements of subpart 

4 for PM10.10 EPA believes that 

application of this approach to PM2.5

precursors under subpart 4 is 

reasonable. Because the ParkersburgMarietta Area has already attained the 

1997 annual PM2.5 NAAQS with its 

current approach to regulation of PM2.5

precursors, EPA believes that it is 

reasonable to conclude in the context of 

this redesignation that there is no need 

to revisit the attainment control strategy 

with respect to the treatment of 

precursors. Even if the DC Circuit 

Court’s decision is construed to impose 

an obligation, in evaluating this 

redesignation request, to consider 

additional precursors under subpart 4, it 

would not affect EPA’s approval here of 

West Virginia’s request for redesignation 

of the Parkersburg-Marietta Area. In the 

context of a redesignation, the Area has 

shown that it has attained the standard. 

Moreover, the State has shown and EPA 

has proposed to determine that 

attainment in this Area is due to 

permanent and enforceable emissions 

reductions on all precursors necessary 

to provide for continued attainment. It 

follows logically that no further control 

of additional precursors is necessary. 

Accordingly, EPA does not view the 

January 4, 2013 decision of the DC 

Circuit Court as precluding 

redesignation of the ParkersburgMarietta Area to attainment for the 1997 

PM2.5 NAAQS at this time. 

In summary, even if West Virginia 

were required to address precursors for 

the Parkersburg-Marietta 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) of the 

CAA. 

d. Maintenance Plan and Evaluation of 

Precursors 

With regard to the redesignation of 

West Virginia, in evaluating the effect of 

the DC Circuit Court’s remand of EPA’s 

implementation rule, which included 

presumptions against consideration of 

NH3 and VOC as PM2.5 precursors, EPA 

in this supplemental proposal is also 

considering the impact of the decision 

on the maintenance plan required under 

sections 175A and 107(d)(3)(E)(iv) of the 

CAA. To begin with, EPA notes that the 

Parkersburg-Marietta Area has attained 

the 1997 annual PM2.5 standard and that 

the State has shown that attainment of 

that standard is due to permanent and 

enforceable emission reductions. 

In the December 11, 2012 NPR, EPA 

proposed 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 annual PM2.5 standard in the 

Parkersburg-Marietta Area. EPA 

therefore, believes that the only 

additional consideration related to the 

maintenance plan requirements that 

results from the DC Circuit Court’s 

January 4, 2013 decision, is that of 

assessing the potential role of NH3 and 

VOCs 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 ParkersburgMarietta Area need not include any 

additional emission reductions of NH3

or VOCs 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 NH3

emissions throughout the ParkersburgMarietta Area are very low, estimated to 

be less than 2,000 tons per year. See 

Table 2 below. This amount of NH3

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 NH3

and VOCs, is expected to increase over 

the maintenance period so as to 


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11These emissions estimates were taken from the 

emissions inventories developed for the RIA for the 

2012 PM2.5 NAAQS. NH3 increases are due to some 

(5%) increase in fertilizer application, but mostly 

from electric generating unit (EGU), and with huge 

SO2 (point) reductions (213,738 in 2007 and 16,881 

in 2020) would offset any increases. 

interfere with or undermine the State’s 

maintenance demonstration. 

West Virginia’s maintenance plan 

shows that emissions of direct PM2.5, 

SO2, and NOX are projected to decrease 

by 130 tons per year (tpy), 111,095 tpy, 

and 22,456 tpy, respectively, over the 

maintenance period. See Table 1 below. 

In addition, emissions inventories used 

in the regulatory impact analysis (RIA) 

for the 2012 PM2.5 NAAQS show that 

VOC emissions are projected to decrease 

by 2,424 tpy between 2007 and 2020. 

NH3 emissions are projected to increase 

by 130 tpy between 2007 and 2020. See 

Table 2 below. Given that the 

Parkersburg-Marietta Area is already 

attaining the 1997 annual 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 

annual 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 NH3 and VOC 

emissions were to increase 

unexpectedly between 2015 and 2022, 

the overall emissions reductions 

projected in direct PM2.5, SO2, and NOX

would be sufficient to offset any 

increases. For these reasons, EPA 

believes that local emissions of all of the 

potential PM2.5 precursors will not 

increase to the extent that they will 

cause monitored PM2.5 levels to violate 

the 1997 PM2.5 standard during the 

maintenance period. 

TABLE 1—COMPARISON OF 2008, 2015, 2022 SO2, NOX, AND DIRECT PM2.5 EMISSION TOTALS IN TONS PER YEAR (TPY) 

FOR THE PARKERSBURG-MARIETTA NONATTAINMENT AREA

SO2 NOX PM2.5

2008 ............................................................................................................................................. 159,535 35,412 3,686 

2015 ............................................................................................................................................. 77,294 18,509 3,648 

2022 ............................................................................................................................................. 48,439 12,985 3,557 

Decrease from 2008 to 2022 ....................................................................................................... 111,095 22,426 130 

TABLE 2—COMPARISON OF 2007 AND 2020 VOC AND AMMONIA EMISSION TOTALS BY SOURCE SECTOR (TPY) FOR THE

PARKERSBURG-MARIETTA NONATTAINMENT AREA 11

VOC NH3

Sector 2007 2020 Net change 

2007–2020 2007 2020 Net change 2007–2020 

Point ................................................................................. 1,526 1,529 3 601 759 158 

Area .................................................................................. 2,180 2,157 ¥23 774 793 19 

Nonroad ........................................................................... 1,452 763 ¥689 2 2 0 

On-road ............................................................................ 2,471 755 ¥1,716 89 42 ¥47 

Fires ................................................................................. 257 257 0 18 18 0 

Total .......................................................................... 7,885 5,461 ¥2,424 1,484 1,614 130 

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 12.3 

micrograms per cubic meter (mg/m3) 

(based on 2009–2011 air quality data), 

which is well below the 1997 annual 

PM2.5 NAAQS of 15 mg/m3. Moreover, 

the modeling analysis conducted for the 

RIA for the 2012 PM2.5 indicates that the 

design value for this Area is expected to 

continue to decline through 2020. In the 

RIA analysis, the 2020 modeled design 

value for the Parkersburg- Marietta Area 

is 9.2 mg/m3. Given that precursor 

emissions are projected to decrease 

through 2020, it is reasonable to 

conclude that monitored PM2.5 levels in 

this Area will also continue to decrease 

in 2020. 

Thus, EPA believes that there is 

ample justification to conclude that the 

Parkersburg-Marietta 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 

Court’s January 4, 2013 decision, and for 

the reasons set forth in this 

supplemental notice, EPA continues to 

propose approval of West Virginia’s 

maintenance plan and it’s request to 

redesignate the Parkersburg-Marietta 

Area to attainment for the 1997 annual 

PM2.5 standard. 

III. Proposed Action 

After fully considering the D.C. 

Circuit Court’s decisions in EME Homer 

City on EPA’s CSAPR rule and NRDC v. 

EPA on EPA’s 1997 PM2.5

Implementation rule, EPA in this 

supplemental notice is proposing to 

proceed with approval of the request to 

redesignate the Parkesburg-Marietta 

Area to attainment for the 1997 annual 

PM2.5 NAAQS, the associated 

maintenance plan, and the 

insignificance determination for onroad 

motor vehicle contribution of PM2.5,

NOX and SO2. EPA is seeking comment 

only on the issues raised in its 

supplemental proposal, and is not 

reopening comment on other issues 

addressed in its prior proposal. 

IV. 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 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 130 / Monday, July 8, 2013 / Proposed Rules 40663 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule 

pertaining to the redesignation of the 

West Virginia portion of the 

Parkersburg-Marietta WV–OH 1997 

annual PM2.5 nonattainment area, 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, Nitrogen dioxide, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness Areas. 

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

Dated: June 13, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2013–16060 Filed 7–5–13; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60, 61, and 63 

[EPA–R08–OAR–2012–0764; FRL–9828–5] 

Delegation of Authority to the 

Southern Ute Indian Tribe To 

Implement and Enforce National 

Emissions Standards for Hazardous 

Air Pollutants and New Source 

Performance Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is taking final action to 

approve the Southern Ute Indian Tribe’s 

(SUIT) July 3, 2012 request for 

delegation of authority to implement 

and enforce National Emissions 

Standards for Hazardous Air Pollutants 

(NESHAP) and New Source 

Performance Standards (NSPS). This 

request establishes and requires SUIT to 

administer a NSPS and NESHAPs 

program per EPA regulations. The 

delegation is facilitated by SUIT’s 

treatment ‘‘in the same manner as a 

state’’ (TAS) document, per CAA 

requirements. 

DATES: Written comments must be 

received on or before August 7, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2012–0764, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: olson.kyle@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Carl Daly, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl Daly, Director, 

Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Such deliveries 

are only accepted Monday through 

Friday, 8:00 a.m. to 4:30 p.m., excluding 

Federal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Please see the direct final rule which 

is located in the Rules Section of this 

Federal Register for detailed instruction 

on how to submit comments. 

FOR FURTHER INFORMATION CONTACT: Kyle 

Olson, Air Program, Mailcode 8P–AR, 

U.S. Environmental Protection Agency, 

Region 8, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129, (303) 312–6002 

or olson.kyle@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA is 

taking final action approving Southern 

Ute Indian Tribe’s (SUIT) July 3, 2012 

request for delegation of authority to 

implement and enforce National 

Emissions Standards for Hazardous Air 

Pollutants (NESHAP) and New Source 

Performance Standards (NSPS). This 

request establishes and requires SUIT to 

administer a NSPS and NESHAPs 

program per EPA regulations. SUIT met 

the requirements of Clean Air Act (CAA) 

sections 111(c) and 112(l) and 40 CFR 

Subpart E for full approval to administer 

CAA 111 and CAA 112 programs 

entirely due to its prior approval of its 

CAA Title V Part 70 Permitting Program. 

The delegation is facilitated by SUIT’s 

treatment ‘‘in the same manner as a 

state’’ (TAS) document, per CAA section 

301(d)(2). This action is being taken 

under section 111 and 112 of the CAA. 

In the ‘‘Rules and Regulations’’ 

section of this Federal Register, EPA is 

approving the delegation as a direct 

final rule without prior proposal 

because the Agency views this as a 

noncontroversial delegation and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the preamble to the direct final 

rule. If EPA receives no adverse 

comments, EPA will not take further 

action on this proposed rule. If EPA 

receives adverse comments, EPA will 

withdraw the direct final rule and it will 

not take effect. EPA will address all 

public comments in a subsequent final 

rule based on this proposed rule. EPA 

will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. See the information 

provided in the direct final action of the 

same title which is located in the Rules 

and Regulations Section of this Federal 

Register. 

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


tkelley on DSK3SPTVN1PROD with PROPOSALS