Federal Register / Vol. 79, No. 16 / Friday, January 24, 2014 / Proposed Rules 4121 

the current attributable owner as 

defined in § 1.271. This three-month 

period is not extendable. 

§ 1.387 Correction of failure to notify the 

Office of a change to the attributable owner 

and errors in notice of attributable owner in 

a patent. 

If, despite a good faith effort by the 

patent owner to notify the Office of the 

initial attributable owner as defined in 

§ 1.271, and of any changes to the 

attributable owner as defined in § 1.271, 

in the manner required by §§ 1.273, 

1.275, 1.277, 1.381, 1.383, and 1.385, 

the patent owner has failed to notify the 

Office of a change to the attributable 

owner or has indicated an incorrect or 

an incomplete attributable owner, the 

failure or error may be excused on 

petition accompanied by a showing of 

reason for the delay, error, or 

incompleteness, and the petition fee set 

forth in § 1.17(g). 

Dated: January 16, 2014. 

Michelle K. Lee, 

Deputy Under Secretary of Commerce for 

Intellectual Property and Deputy Director of 

the United States Patent and Trademark 

Office. 

[FR Doc. 2014–01195 Filed 1–23–14; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R03–OAR–2013–0090; FRL–9905–64– 

Region–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Approval of the 

Redesignation Requests and the 

Associated Maintenance Plans of the 

Charleston Nonattainment Area To 

Attainment for the 1997 Annual and 

2006 24-Hour Fine Particulate Matter 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

the State of West Virginia’s requests to 

redesignate to attainment the Charleston 

nonattainment area for the 1997 annual 

and the 2006 24-hour fine particulate 

matter (PM2.5) national ambient air 

quality standard (NAAQS). EPA is also 

proposing to determine that the 

Charleston Area continues to attain both 

the1997 annual and the 2006 24-hour 

PM2.5 NAAQS. In addition, EPA is 

proposing to approve as a revision to the 

West Virginia state implementation plan 

(SIP), the associated maintenance plans 

to show maintenance of the 1997 annual 

and the 2006 24-hour PM2.5 NAAQS 

through 2025 for the Charleston Area. 

As part of the maintenance plan, EPA is 

proposing to approve a 2008 emissions 

inventory for the Charleston Area for the 

2006 24-hour PM2.5 NAAQS. EPA is 

proposing that the 2008 emissions 

inventory for volatile organic 

compounds (VOCs) and ammonia (NH3), 

in conjunction with inventories for 

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

sulfur dioxide (SO2) meet the 

comprehensive emissions inventory 

requirement of the Clean Air Act (CAA) 

for the 2006 24-hour PM2.5 NAAQS. 

West Virginia’s maintenance plans 

include insignificance findings for the 

mobile source contribution of PM2.5 and 

NOx emissions for the Charleston Area 

for both the 1997 annual and the 2006 

24-hour PM2.5 NAAQS. EPA agrees with 

these insignificance findings, and is 

proposing approval of such findings for 

transportation conformity purposes. In 

this rulemaking action, EPA also 

addresses the effects of two decisions of 

the United States Court of Appeals for 

the District of Columbia (DC Circuit 

Court): The DC Circuit Court’s August 

21, 2012 decision to vacate and remand 

the Cross-State Air Pollution Control 

(CSAPR); and the DC Circuit Court’s 

January 4, 2013 decision to remand to 

EPA two rules implementing the 1997 

annual PM2.5 NAAQS. This rulemaking 

action to propose approval of the 1997 

annual and the 2006 24-hour PM2.5

NAAQS redesignation requests and 

associated maintenance plans for the 

Charleston Area is based on EPA’s 

determination that the Area has met the 

criteria for redesignation to attainment 

specified in the CAA for both the 1997 

annual and the 2006 24-hour PM2.5

NAAQS. 

DATES: Written comments must be 

received on or before February 24, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0090 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–2013–0090, 

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–2013– 

0090. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 24304. 


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4122 Federal Register / Vol. 79, No. 16 / Friday, January 24, 2014 / 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. EPA’s Requirements 

A. Criteria for Redesignation to Attainment 

B. Requirements of a Maintenance Plan 

III. Summary of Proposed Actions 

IV. Effects of Recent Court Decisions on 

Proposed Actions 

A. Effect of the August 21, 2012 DC Circuit 

Court Decision Regarding EPA’s CSAPR 

B. Effect of the January 4, 2013 DC Circuit 

Court Decision Regarding the PM2.5

Implementation under Subpart 4 of Part 

D of Title I of the CAA 

V. EPA’s Analysis of West Virginia’s 

Submittals 

A. Redesignation Requests 

B. Maintenance Plans 

C. Transportation Conformity 

Insignificance Determination 

VI. Proposed Actions 

VII. Statutory and Executive Order Reviews 

I. Background 

The first air quality standards for 

PM2.5 were established on July 18, 1997 

(62 FR 38652). EPA promulgated an 

annual standard at a level of 15 

micrograms per cubic meter (mg/m3), 

based on a three-year average of annual 

mean PM2.5 concentrations (the 1997 

annual PM2.5 standard). In the same 

rulemaking, EPA promulgated a 24-hour 

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

hour concentrations. 

On January 5, 2005 (70 FR 944, 1014), 

EPA published air quality area 

designations for the 1997 PM2.5 NAAQS. 

In that rulemaking action, EPA 

designated the Charleston Area as 

nonattainment for the 1997 annual 

PM2.5 NAAQS. The Charleston Area is 

comprised of Kanawha and Putnam 

Counties. See 40 CFR 81.349. 

On October 17, 2006 (71 FR 61144), 

EPA retained the annual average 

standard at 15 mg/m3 but revised the 24- 

hour standard to 35 mg/m3, based again 

on the three-year average of the 98th 

percentile of the 24-hour concentrations 

(the 2006 annual PM2.5 standard) . On 

November 13, 2009 (74 FR 58688), EPA 

published designations for the 2006 24- 

hour PM2.5 standard, which became 

effective on December 14, 2009. In that 

rulemaking action, EPA designated the 

Charleston Area as nonattainment for 

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

FR 58775 and 40 CFR 81.349. 

In response to legal challenges of the 

annual standard promulgated in 2006, 

the DC Circuit Court remanded the 2006 

annual standard to EPA for further 

consideration. See American Farm 

Bureau Federation and National Pork 

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

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

given that the 1997 annual and the 2006 

annual PM2.5 standards are essentially 

identical, attainment of the 1997 annual 

PM2.5 standard would also indicate 

attainment of the remanded 2006 annual 

PM2.5 standard. Since the Charleston 

Area is designated nonattainment for 

the1997 annual and the 2006 24-hour 

PM2.5 NAAQS, today’s proposed 

rulemaking action addresses the 

redesignation to attainment of the 

Charleston Area for these standards. 

On October 11, 2011 (76 FR 62640) 

and November 18, 2011 (76 FR 71450), 

EPA determined that the Charleston 

Area has attained the 1997 annual and 

2006 24-hour PM2.5 NAAQS, 

respectively. Pursuant to 40 CFR 

51.1004(c) and based on these 

determinations, the requirements for the 

Charleston Area to submit an attainment 

demonstration and associated 

reasonably available control measures 

(RACM), a reasonable further progress 

(RFP) plan, contingency measures, and 

other planning SIP revisions related to 

the attainment of either the 1997 annual 

and 2006 24-hour PM2.5 NAAQS are 

suspended until such time as: the Area 

is redesignated to attainment for each 

standard, at which time the 

requirements no longer apply; or EPA 

determines that the Area has again 

violated any of the standards, at which 

time such plans are required to be 

submitted. 

On December 12, 2012 (77 FR 73923), 

EPA approved a 2002 emissions 

inventory for the 1997 annual PM2.5

NAAQS for the Charleston Area. The 

emissions inventory was submitted with 

West Virginia’s attainment plan for the 

1997 annual PM2.5 NAAQS on 

November 4, 2009, to meet the 

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

CAA, one of the criteria for 

redesignation. The emissions inventory 

included emissions for 2002 that cover 

the general source categories of point, 

area, nonroad mobile, onroad mobile 

and biogenic sources which addressed 

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. 

On December 6, 2012, the State of 

West Virginia through the West Virginia 

Department of Environmental Protection 

(WVDEP) formally submitted a request 

to redesignate the Charleston Area from 

nonattainment to attainment for the 

1997 annual and the 2006 24-hour PM2.5

NAAQS. Concurrently, WVDEP 

submitted maintenance plans for the 

Area as SIP revisions to ensure 

continued attainment throughout the 

Area over the next 10 years for the 1997 

annual and the 2006 24-hour PM2.5

NAAQS. The maintenance plans 

submitted for each of the standards are 

essentially the same, thus EPA is 

proposing to approve as a SIP revision 

a maintenance plan for both the 1997 

annual and the 2006 24-hour PM2.5

NAAQS. The December 6, 2012 

submittal also includes a 2008 

emissions inventory for PM2.5, SO2, and 

NOx for the 2006 24-hour PM2.5 NAAQS, 

which WVDEP supplemented on June 

24, 2013 to include emissions of VOC 

and NH3. EPA is proposing to approve 

the 2008 emissions inventory for the 

2006 24-hour PM2.5 NAAQS for PM2.5, 

SO2, NOx, VOC, and NH3 in order to 

meet the emissions inventory 

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

CAA. 

In this proposed rulemaking action, 

EPA is taking into account two 

decisions of the DC Circuit Court. In the 

first of the two DC Circuit Court 

decisions, the DC Circuit Court, on 

August 21, 2012, issued EME Homer 

City Generation, L.P. v. EPA, 696 F.3d 

7 (D.C. Cir. 2012), which vacated and 

remanded CSAPR and ordered EPA to 

continue administering the Clean Air 

Interstate Rule (CAIR) ‘‘pending . . . 

development of a valid replacement.’’ 

EME Homer City at 38. The DC Circuit 

Court denied all petitions for rehearing 

on January 24, 2013. EPA and other 

parties filed for certiorari to the 

Supreme Court, and on June 24, 2013, 

the Supreme Court granted certiorari on 

EPA’s petition for appeal of EME Homer 

City Generation. See EME Homer City 

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

Cir. 2012), cert. granted, 570 U.S. — 

(2013). Nonetheless, EPA intends to 

continue to act in accordance with the 

EME Homer City opinion. In the second 

decision, on January 4, 2013, in Natural 

Resources Defense Council (NRDC) v. 

EPA, the DC Circuit Court remanded to 

EPA the ‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

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

II. EPA’s Requirements 

A. Criteria for Redesignation to 

Attainment 

The CAA provides the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

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

redesignation providing that: (1) EPA 

determines that the area has attained the 

applicable NAAQS; (2) EPA has fully 


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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 ‘‘State 

Implementation Plans; General 

Preamble for the Implementation of 

Title I of the CAA Amendments of 

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

(the ‘‘General Preamble’’) and has 

provided further guidance on processing 

redesignation requests in the following 

documents: (1) ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, 

September 4, 1992 (hereafter referred to 

as the ‘‘1992 Calcagni Memorandum’’); 

(2) ‘‘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 D. Nichols, 

Assistant Administrator for Air and 

Radiation, October 14, 1994. 

B. Requirements of a Maintenance Plan 

Section 175A of the CAA sets forth 

the elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. Under 

section 175A of the CAA, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least 10 

years after approval of a redesignation of 

an area to attainment. Eight years after 

the redesignation, the state must submit 

a revised maintenance plan 

demonstrating that attainment will 

continue to be maintained for the 10 

years following the initial 10-year 

period. To address the possibility of 

future NAAQS violations, the 

maintenance plan must contain such 

contingency measures, with a schedule 

for implementation, as EPA deems 

necessary to assure prompt correction of 

any future PM2.5 violations. 

The 1992 Calcagni Memorandum 

provides additional guidance on the 

content of a maintenance plan. The 

memorandum states that a 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. 

III. Summary of Proposed Actions 

EPA is proposing to take several 

rulemaking actions related to the 

redesignation of the Charleston Area to 

attainment for both the 1997 annual and 

the 2006 24-hour PM2.5 NAAQS. EPA is 

proposing to find that the Charleston 

Area meets the requirements for 

redesignation for the 1997 annual and 

the 2006 24-hour 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 

designation for the Charleston Area 

from nonattainment to attainment for 

the 1997 annual and the 2006 24-hour 

PM2.5 NAAQS. 

EPA is also proposing to approve the 

associated maintenance plans for the 

Charleston Area as a revision to the 

West Virginia SIP for the 1997 annual 

and the 2006 24-hour PM2.5 NAAQS, 

including the insignificance 

determinations for PM2.5 and NOX for 

the onroad motor source contribution of 

the Charleston Area for both the 1997 

annual and the 2006 24-hour PM2.5

NAAQS. The approval of the 

maintenance plans is one of the CAA 

criteria for redesignation of the 

Charleston Area to attainment for both 

standards. West Virginia’s maintenance 

plans are designed to ensure continued 

attainment in the Charleston Area for 10 

years after redesignation for both the 

1997 annual and the 2006 24-hour PM2.5

NAAQS. 

EPA previously determined that the 

Charleston Area has attained both the 

1997 annual and the 2006 24-hour PM2.5

NAAQS, therefore, EPA is proposing to 

find that the Area continues to attain 

both standards. See 76 FR 62640, 

October 11, 2011 and 76 FR 71450, 

November 18, 2011. EPA is also 

proposing to approve the 2008 

comprehensive emissions inventory that 

includes PM2.5, SO2 NOX, VOC, and NH3

for the Charleston Area as part of the 

West Virginia SIP for the 2006 24-hour 

PM2.5 NAAQS in order to meet the 

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

CAA. 

IV. Effects of Recent Court Decisions on 

Proposed Actions 

A. Effect of the August 21, 2012 DC 

Circuit Court Decision Regarding EPA’s 

CSAPR 

1. Background 

EPA recently promulgated CSAPR (76 

FR 48208, August 8, 2011), to replace 

CAIR, which has been in place since 

2005. See 76 FR 59517. CAIR requires 

significant reductions in emissions of 

SO2 and NOX from electric generating 

units to limit the interstate transport of 

these pollutants and the ozone and fine 

particulate matter they form in the 

atmosphere. See 76 FR 70093. The DC 

Circuit Court initially vacated CAIR, 

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

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

remanded the rule to EPA without 

vacatur to preserve the environmental 

benefits provided by CAIR, North 

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

(D.C. Cir. 2008). 

On December 30, 2011, the DC 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 DC 

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 DC 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 DC Circuit 

Court issued a decision to vacate 

CSAPR. In that decision, it also ordered 

EPA to continue administering CAIR 

‘‘pending the promulgation of a valid 

replacement.’’ EME Homer City, 696 

F.3d at 38 (DC Circ. 2012). The DC 

Circuit Court denied all petitions for 

rehearing on January 24, 2013. EPA and 

other parties have filed petitions for 

certiorari to the U.S. Supreme Court. On 

June 24, 2013 the Supreme Court 

granted EPA’s petition for certiorari. 

Nonetheless, EPA intends to continue to 

act in accordance with the EME Homer 

City opinion. 

2. Proposal on This Issue 

In light of these unique circumstances 

and for the reasons explained 

subsequently, to the extent that 

attainment is due to emission 

reductions associated with CAIR, EPA is 

here proposing to determine that those 

reductions are sufficiently permanent 

and enforceable for purposes of sections 

107(d)(3)(E)(iii) and 175A of the CAA. 

EPA, therefore, proposes to approve the 


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redesignation requests and the related 

SIP revisions for Kanawha and Putnam 

Counties in West Virginia, including 

West Virginia’s plan for maintaining 

attainment of the 1997 annual and 2006 

24-hour PM2.5 NAAQS in the Charleston 

Area. 

As directed by the DC Circuit Court, 

CAIR remains in place and enforceable 

until substituted by a valid replacement 

rule. West Virginia’s SIP revision lists 

CAIR as a control measure that was 

approved by EPA on August 6, 2009 (74 

FR 38536) and became state-effective on 

May 1, 2008 for the purpose of reducing 

SO2 and NOx emissions. CAIR was thus 

in place and getting emission reductions 

when the Charleston Area monitored 

attainment of the 1997 annual and 2006 

24-hour PM2.5 NAAQS. The qualityassured, quality-controlled, certified 

monitoring data used to demonstrate the 

Area’s attainment of both the 1997 

annual and 2006 24-hour PM2.5 NAAQS 

was also impacted by CAIR. 

To the extent that West Virginia is 

relying on CAIR in its maintenance 

plan, the recent directive from the DC 

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 DC 

Circuit Court to develop a new rule to 

address interstate transport to replace 

CSAPR, and the opinion makes clear 

that after promulgating that new rule, 

EPA must provide states an opportunity 

to draft and submit SIPs to implement 

that rule. Thus, CAIR will remain in 

place until: (1) EPA has promulgated a 

final rule through a notice-and-comment 

rulemaking process; (2) states have had 

an opportunity to draft and submit SIPs; 

(3) EPA has reviewed the SIPs to 

determine if they can be approved; and 

(4) EPA has taken action on the SIPs, 

including promulgating a Federal 

Implementation Plan (FIP) if 

appropriate. The DC Circuit Court’s 

clear instruction to EPA that it must 

continue to administer CAIR until a 

valid replacement exists provides an 

additional backstop. By definition, any 

rule that replaces CAIR and meets the 

DC Circuit Court’s direction would 

require upwind states to have SIPs that 

eliminate significant contributions to 

downwind nonattainment and prevent 

interference with maintenance in 

downwind areas. 

Further, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the DC Circuit Court emphasized 

that the consequences of vacating CAIR 

‘‘might be more severe now in light of 

the reliance interests accumulated over 

the intervening four years.’’ EME Homer 

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

reliance interests include the interests of 

states who reasonably assumed they 

could rely on reductions associated with 

CAIR which brought certain 

nonattainment areas into attainment 

with the NAAQS. If EPA were 

prevented from relying on reductions 

associated with CAIR in redesignation 

actions, states would be forced to 

impose additional, redundant 

reductions on top of those achieved by 

CAIR. EPA believes this is precisely the 

type of irrational result the DC Circuit 

Court sought to avoid by ordering EPA 

to continue administering CAIR. For 

these reasons also, EPA believes it is 

appropriate to allow states to rely on 

CAIR, and the existing emissions 

reductions achieved by CAIR, as 

sufficiently permanent and enforceable 

for purposes such as redesignation. 

Following promulgation of the 

replacement rule, EPA will review SIP 

revisions as appropriate to identify 

whether there are any issues that need 

to be addressed. 

B. Effect of the January 4, 2013 DC 

Circuit Court Decision Regarding PM2.5

Implementation Under Subpart 4 of Part 

D of Title I of the CAA 

1. Background 

On January 4, 2013, in NRDC v. EPA, 

the DC 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 DC Circuit Court 

found that EPA erred in implementing 

the 1997 annual PM2.5 NAAQS pursuant 

to the general implementation 

provisions of subpart 1 of Part D of Title 

I of the CAA (subpart 1), rather than the 

particulate-matter-specific provisions of 

subpart 4 of Part D of Title I (subpart 4). 

Although the DC Circuit Court did not 

directly address the 2006 24-hour PM2.5

NAAQS, EPA is taking into account the 

DC Circuit Court’s position on subpart 

4 and the 1997 annual PM2.5 NAAQS in 

evaluating redesignations for the 2006 

24-hour PM2.5 NAAQS. 

2. Proposal on This Issue 

EPA is proposing to determine that 

the DC Circuit Court’s January 4, 2013 

decision does not prevent EPA from 

redesignating the Charleston Area to 

attainment for either the 1997 annual or 

the 2006 24-hour PM2.5 NAAQS. Even in 

light of the DC Circuit Court’s decision, 

redesignation for this Area is 

appropriate under the CAA and EPA’s 

longstanding interpretations of the 

CAA’s provisions regarding 

redesignation. EPA first explains its 

longstanding interpretation that 

requirements that are imposed, or that 

become due, after a complete 

redesignation request is submitted for 

an area that is attaining the standard, are 

not applicable for purposes of 

evaluating a redesignation request. 

Second, EPA then shows that, even if 

EPA applies the subpart 4 requirements 

to the West Virginia redesignation 

requests and disregards the provisions 

of its 1997 PM2.5 Implementation Rule 

recently remanded by the DC Circuit 

Court, the State’s request for 

redesignation of the Area still qualifies 

for approval. EPA’s discussion takes 

into account the effect of the DC 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 Requests 

With respect to the 1997 PM2.5

Implementation Rule, the DC Circuit 

Court’s January 4, 2013 ruling rejected 

EPA’s reasons for implementing the 

PM2.5 NAAQS solely in accordance with 

the provisions of subpart 1, and 

remanded that matter to EPA, so that it 

could address implementation of the 

1997 annual PM2.5 NAAQS under 

subpart 4 of Part D of the CAA, in 

addition to subpart 1. For the purposes 

of evaluating the West Virginia’s 

redesignation request for the Charleston 

Area, to the extent that implementation 

under subpart 4 would impose 

additional requirements for areas 

designated nonattainment, EPA believes 

that those requirements are not 

‘‘applicable’’ for the purposes of section 

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

is not required to consider subpart 4 

requirements with respect to the 

redesignation of the Charleston Area. 

Under its longstanding interpretation of 

the CAA, EPA has interpreted section 

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

matter, that the part D provisions which 

are ‘‘applicable’’ and which must be 

approved in order for EPA to 

redesignate an area include only those 

which came due prior to a state’s 

submittal of a complete redesignation 

request. See 1992 Calcagni 

Memorandum. See also ‘‘State 

Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) on or after 


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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). 

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 requests for both 

standards, the requirements under 

subpart 4 were not due, and indeed, 

were not yet known to apply. 

EPA’s view that, for purposes of 

evaluating the redesignation of the 

Charleston Area, the subpart 4 

requirements were not due at the time 

West Virginia submitted the 

redesignation requests is in keeping 

with the EPA’s interpretation of subpart 

2 requirements for subpart 1 ozone areas 

redesignated subsequent to the DC 

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 

DC 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 

rulemaking actions, EPA therefore did 

not consider subpart 2 requirements to 

be ‘‘applicable’’ for the purposes of 

evaluating whether the area should be 

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

of the CAA. 

EPA’s interpretation derives from the 

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

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

for an area to be redesignated, a state 

must meet ‘‘all requirements 

‘applicable’ to the area under section 

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

provides that EPA must have fully 

approved the ‘‘applicable’’ SIP for the 

area seeking redesignation. These two 

sections read together support EPA’s 

interpretation of ‘‘applicable’’ as only 

those requirements that came due prior 

to submission of a complete 

redesignation request. First, holding 

states to an ongoing obligation to adopt 

new CAA requirements that arose after 

the state submitted its redesignation 

request, in order to be redesignated, 

would make it problematic or 

impossible for EPA to act on 

redesignation requests in accordance 

with the 18-month deadline Congress 

set for EPA action in section 

107(d)(3)(D). If ‘‘applicable 

requirements’’ were interpreted to be a 

continuing flow of requirements with no 

reasonable limitation, states, after 

submitting a redesignation request, 

would be forced continuously to make 

additional SIP submissions that in turn 

would require EPA to undertake further 

notice-and-comment rulemaking actions 

to act on those submissions. This would 

create a regime of unceasing rulemaking 

that would delay action on the 

redesignation request beyond the 18- 

month timeframe provided by the CAA 

for this purpose. 

Second, a fundamental premise for 

redesignating a nonattainment area to 

attainment is that the area has attained 

the relevant NAAQS due to emission 

reductions from existing controls. Thus, 

an area for which a redesignation 

request has been submitted would have 

already attained the NAAQS as a result 

of satisfying statutory requirements that 

came due prior to the submission of the 

request. Absent a showing that 

unadopted and unimplemented 

requirements are necessary for future 

maintenance, it is reasonable to view 

the requirements applicable for 

purposes of evaluating the redesignation 

request as including only those SIP 

requirements that have already come 

due. These are the requirements that led 

to attainment of the NAAQS. To require, 

for redesignation approval, that a state 

also satisfy additional SIP requirements 

coming due after the state submits its 

complete redesignation request, and 

while EPA is reviewing it, would 

compel the state to do more than is 

necessary to attain the NAAQS, without 

a showing that the additional 

requirements are necessary for 

maintenance. 

In the context of this redesignation, 

the timing and nature of the D.C. Circuit 

Court’s January 4, 2013 decision in 

NRDC v. EPA compound the 

consequences of imposing requirements 

that come due after the redesignation 

request is submitted. West Virginia 

submitted its redesignation requests for 

the 1997 annual and the 2006 24-hour 

PM2.5 NAAQS on December 6, 2012 for 

Charleston Area, 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 

requests for both the 1997 annual and 

the 2006 24-hour PM2.5 NAAQS to 

comply now with requirements of 

subpart 4 that the D.C. Circuit Court 

announced only in its January, 2013 

decision on the 1997 PM2.5

Implementation Rule, 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. Circuit 

Court’s ruling refusing to make 

retroactive EPA’s determination that the 

Area did not meet its attainment 

deadline. In that case, petitioners urged 

the D.C. Circuit Court to make EPA’s 

nonattainment determination effective 

as of the date that the statute required, 

rather than the later date on which EPA 

actually made the determination. The 

D.C. Circuit Court rejected this view, 

stating that applying it ‘‘would likely 

impose large costs on States, which 

would face fines and suits for not 

implementing air pollution prevention 

plans . . . even though they were not on 

notice at the time.’’ Id. at 68. Similarly, 

it would be unreasonable to penalize the 

State of West Virginia by rejecting its 

redesignation request for an area that is 

already attaining both the 1997 annual 

and 2006 24-hour PM2.5 standards and 

that met all applicable requirements 

known to be in effect at the time of the 

requests. For EPA now to reject the 

redesignation requests solely because 

the State did not expressly address 


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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 in this rulemaking 

action. 

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

milestone requirements, contingency measures. 

6As EPA has explained above, we do not believe 

that the D.C. Circuit 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. 

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 West 

Virginia Redesignation Requests 

Even if EPA were to take the view that 

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

decision requires that, in the context of 

pending redesignations for either the 

1997 annual or 2006 24-hour PM2.5

standards, subpart 4 requirements were 

due and in effect at the time West 

Virginia submitted its redesignation 

requests, EPA proposes to determine 

that the Charleston Area still qualifies 

for redesignation to attainment for both 

the 1997 annual and 2006 24-hour PM2.5

standards. As explained subsequently, 

EPA believes that the two redesignation 

requests for the Charleston Area, though 

not expressed in terms of subpart 4 

requirements, substantively meet the 

requirements of that subpart for 

purposes of redesignating the Area to 

attainment for both standards. 

With respect to evaluating the 

relevant substantive requirements of 

subpart 4 for purposes of redesignating 

the Charleston Area, EPA notes that 

subpart 4 incorporates components of 

subpart 1 of part D, which contains 

general air quality planning 

requirements for areas designated as 

nonattainment. See Section 172(c). 

Subpart 4 itself contains specific 

planning and scheduling requirements 

for coarse particulate matter (PM10) 3

nonattainment areas, and under the D.C. 

Circuit Court’s January 4, 2013 decision 

in NRDC v. EPA, these same statutory 

requirements also apply for PM2.5

nonattainment areas. EPA has 

longstanding general guidance that 

interprets the 1990 amendments to the 

CAA, making recommendations to states 

for meeting the statutory requirements 

for SIPs for nonattainment areas. See, 

the General Preamble. In the General 

Preamble, EPA discussed the 

relationship of subpart 1 and subpart 4 

SIP requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM10

requirements’’ (57 FR 13538, April 16, 

1992). The subpart 1 requirements 

include, among other things, provisions 

for attainment demonstrations, RACM, 

RFP, emissions inventories, and 

contingency measures. 

For the purposes of these 

redesignation requests, in order to 

identify any additional requirements 

which would apply under subpart 4, we 

are considering the Charleston 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 NAAQS is viewed as 

having satisfied the attainment planning 

requirements for these subparts. For 

redesignations, EPA has for many years 

interpreted attainment-linked 

requirements as not applicable for areas 

attaining the standard. In the General 

Preamble, EPA stated that: ‘‘The 

requirements for RFP will not apply in 

evaluating a request for redesignation to 

attainment since, at a minimum, the air 

quality data for the area must show that 

the area has already attained. Showing 

that the State will make RFP towards 

attainment will, therefore, have no 

meaning at that point.’’ 

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 Circuit Court’s 

January 4, 2013 decision in NRDC v. 

EPA to mean that attainment-related 

requirements specific to subpart 4 

should be imposed retroactively 6 and 

thus are now past due, those 

requirements do not apply to an area 

that is attaining the 1997 annual and/or 

the 2006 24-hour PM2.5 NAAQS, for the 

purpose of evaluating a pending request 

to redesignate the area to attainment. 

EPA has consistently enunciated this 

interpretation of applicable 

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

since the General Preamble was 

published more than twenty years ago. 

Courts have recognized the scope of 

EPA’s authority to interpret ‘‘applicable 

requirements’’ in the redesignation 

context. See Sierra Club v. EPA, 375 

F.3d 537 (7th Cir. 2004). 


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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. 

Moreover, even outside the context of 

redesignations, EPA has viewed the 

obligations to submit attainment-related 

SIP planning requirements of subpart 4 

as inapplicable for areas that EPA 

determines are attaining the 1997 

annual and/or the 2006 24-hour PM2.5

NAAQS. EPA’s prior ‘‘Clean Data 

Policy’’ rulemakings for the PM10

NAAQS, also governed by the 

requirements of subpart 4, explain 

EPA’s reasoning. They describe the 

effects of a determination of attainment 

on the attainment-related SIP planning 

requirements of subpart 4. See 

‘‘Determination of Attainment for Coso 

Junction Nonattainment Area,’’ (75 FR 

27944, May 19, 2010). See also Coso 

Junction Proposed PM10 Redesignation, 

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

Proposed and Final Determinations of 

Attainment for San Joaquin 

Nonattainment Area (71 FR 40952, 

40954–55, July 19, 2006; and 71 FR 

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

short, EPA in this context has also long 

concluded that to require states to meet 

superfluous SIP planning requirements 

is not necessary and not required by the 

CAA, so long as those areas continue to 

attain the relevant NAAQS. 

Elsewhere in this notice, EPA 

determined that the Charleston Area has 

attained both the 1997 annual and 2006 

24-hour PM2.5 NAAQS. Under its 

longstanding interpretation, EPA is 

proposing to determine here that the 

Area meets the attainment-related plan 

requirements of subparts 1 and 4 for 

both the 1997 annual and 2006 24-hour 

PM2.5 NAAQS. Thus, EPA is proposing 

to conclude that the requirements to 

submit an attainment demonstration 

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

determination under section 172(c)(1) 

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

demonstration under 189(c)(1), and 

contingency measure requirements 

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

purposes of evaluating these 

redesignation requests. 

c. Subpart 4 and Control of PM2.5

Precursors 

The D.C. Circuit Circuit Court in 

NRDC v. EPA remanded to EPA the two 

rules at issue in the case with 

instructions to EPA to re-promulgate 

them consistent with the requirements 

of subpart 4. EPA in this section 

addresses the D.C. Circuit Circuit 

Court’s opinion with respect to PM2.5

precursors. While past implementation 

of subpart 4 for PM10 has allowed for 

control of PM10 precursors such as NOX

from major stationary, mobile, and area 

sources in order to attain the standard 

as expeditiously as practicable, section 

189(e) of the CAA specifically provides 

that control requirements for major 

stationary sources of direct PM10 shall 

also apply to PM10 precursors from 

those sources, except where EPA 

determines that major stationary sources 

of such precursors ‘‘do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ 

EPA’s 1997 PM2.5 Implementation 

Rule, remanded by the D.C. Circuit 

Circuit Court, contained rebuttable 

presumptions concerning certain PM2.5

precursors applicable to attainment 

plans and control measures related to 

those plans. Specifically, in 40 CFR 

51.1002, EPA provided, among other 

things, that a state was ‘‘not required to 

address VOC [and NH3] as . . . PM2.5

attainment plan precursor[s] and to 

evaluate sources of VOC [and NH3] 

emissions in the State for control 

measures.’’ EPA intended these to be 

rebuttable presumptions. EPA 

established these presumptions at the 

time because of uncertainties regarding 

the emission inventories for these 

pollutants and the effectiveness of 

specific control measures in various 

regions of the country in reducing PM2.5

concentrations. EPA also left open the 

possibility for such regulation of VOC 

and NH3 in specific areas where that 

was necessary. 

The D.C. Circuit Court in its January 

4, 2013 decision made reference to both 

section 189(e) and 40 CFR 51.1002, and 

stated that, ‘‘In light of our disposition, 

we need not address the petitioners’ 

challenge to the presumptions in [40 

CFR 51.1002] that VOCs and NH3 are 

not PM2.5 precursors, as subpart 4 

expressly governs precursor 

presumptions.’’ NRDC v. EPA, at 27, 

n.10. 

Elsewhere in the D.C. Circuit Court’s 

opinion, however, the D.C. Circuit Court 

observed: ‘‘NH3 is a precursor to fine 

particulate matter, making it a precursor 

to both PM2.5 and PM10. For a PM10

nonattainment area governed by subpart 

4, a precursor is presumptively 

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

[section 189(e)].’’ Id. at 21, n.7. 

For a number of reasons, EPA believes 

that its proposed redesignations of the 

Charleston Area for the 1997 annual and 

the 2006 24-hour PM2.5 NAAQS are 

consistent with the D.C. Circuit Court’s 

decision on this aspect of subpart 4. 

First, while the D.C. Circuit Court, citing 

section 189(e), stated that ‘‘for a PM10

area governed by subpart 4, a precursor 

is ‘presumptively’ regulated,’’ the D.C. 

Circuit Court expressly declined to 

decide the specific challenge to EPA’s 

1997 PM2.5 Implementation Rule 

provisions regarding NH3 and VOC as 

precursors. The D.C. Circuit Court had 

no occasion to reach whether and how 

it was substantively necessary to 

regulate any specific precursor in a 

particular PM2.5 nonattainment area, 

and did not address what might be 

necessary for purposes of acting upon a 

redesignation request. However, even if 

EPA takes the view that the 

requirements of subpart 4 were deemed 

applicable at the time the state 

submitted the redesignation request, 

and disregards the 1997 PM2.5

Implementation Rule’s rebuttable 

presumptions regarding NH3 and VOC 

as PM2.5 precursors (and any similar 

provisions reflected in the guidance for 

the 2006 24-hour PM2.5 NAAQS), 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 Charleston Area, EPA believes 

that doing so is consistent with 

proposing redesignation of the Area for 

the 1997 annual and the 2006 24-hour 

PM2.5 NAAQS. The Area has attained 

both the 1997 annual and 2006 24-hour 

PM2.5 NAAQS without any specific 

additional controls of NH3 and VOC and 

emissions from any sources in the Area. 

Precursors in subpart 4 are 

specifically regulated under the 

provisions of section 189(e), which 

requires, with important exceptions, 

control requirements for major 

stationary sources of PM10 precursors.7

Under subpart 1 and EPA’s prior 

implementation rule, all major 

stationary sources of PM2.5 precursors 

were subject to regulation, with the 

exception of NH3 and VOC. Thus we 

must address here whether additional 

controls of NH3 and VOC from major 

stationary sources are required under 

section 189(e) of subpart 4 in order to 

redesignate the Area for the 1997 annual 

and 2006 24-hour PM2.5 NAAQS. As 

explained subsequently, we do not 

believe that any additional controls of 

NH3 and VOC are required in the 

context of these redesignations. 

In the General Preamble, EPA 

discusses its approach to implementing 

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

With regard to precursor regulation 

under section 189(e), the General 

Preamble explicitly stated that control 

of VOC under other CAA requirements 

may suffice to relieve a state from the 

need to adopt precursor controls under 

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


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8The Charleston Area has reduced VOC 

emissions through the implementation of various 

control programs including VOC Reasonably 

Available Control Technology (RACT) regulations 

and various on-road and non-road motor vehicle 

control programs. 

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). 

this proposal proposes to determine that 

West Virginia’s SIP has met the 

provisions of section 189(e) with respect 

to NH3 and VOC as precursors. This 

proposed supplemental determination is 

based on our findings that: (1) The 

Charleston 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 

redesignations of the Charleston Area, 

which is attaining the 1997 annual and 

2006 24-hour PM2.5 NAAQS, at present 

NH3 and VOC precursors from major 

stationary sources do not contribute 

significantly to levels exceeding the 

1997 annual or the 2006 24-hour PM2.5

NAAQS in the Area. See 57 FR 13539– 

42. 

EPA notes that its 1997 PM2.5

Implementation Rule provisions in 40 

CFR 51.1002 were not directed at 

evaluation of PM2.5 precursors in the 

context of redesignation, but at SIP 

plans and control measures required to 

bring a nonattainment area into 

attainment of the 1997 annual or the 

2006 24-hour PM2.5 NAAQS. By 

contrast, redesignation to attainment 

primarily requires the nonattainment 

area to have already attained due to 

permanent and enforceable emission 

reductions, and to demonstrate that 

controls in place can continue to 

maintain the standard. Thus, even if we 

regard the D.C. Circuit Court’s January 

4, 2013 decision as calling for 

‘‘presumptive regulation’’ of NH3 and 

VOC for PM2.5 under the attainment 

planning provisions of subpart 4, those 

provisions in and of themselves do not 

require additional controls of these 

precursors for an area that already 

qualifies for redesignation. Nor does 

EPA believe that requiring West Virginia 

to address precursors differently than it 

has already would result in a 

substantively different outcome. 

Although, as EPA has emphasized, its 

consideration here of precursor 

requirements under subpart 4 is in the 

context of a redesignation to attainment, 

EPA’s existing interpretation of subpart 

4 requirements with respect to 

precursors in attainment plans for PM10

contemplates that states may develop 

attainment plans that regulate only 

those precursors that are necessary for 

purposes of attainment in the area in 

question, i.e., states may determine that 

only certain precursors need be 

regulated for attainment and control 

purposes.9 Courts have upheld this 

approach to the requirements of subpart 

4 for PM10.10 EPA believes that 

application of this approach to PM2.5

precursors under subpart 4 is 

reasonable. Because the Charleston Area 

has already attained both the 1997 

annual and 2006 24-hour PM2.5 NAAQS 

with its current approach to regulation 

of PM2.5 precursors, EPA believes that it 

is reasonable to conclude in the context 

of this redesignation that there is no 

need to revisit the attainment control 

strategy with respect to the treatment of 

precursors. Even if the D.C. Circuit 

Court’s decision is construed to impose 

an obligation, in evaluating this 

redesignation request, to consider 

additional precursors under subpart 4, it 

would not affect EPA’s approval here of 

West Virginia’s requests for 

redesignation of the Charleston Area for 

the 1997 annual and 2006 24-hour PM2.5

NAAQS. In the context of a 

redesignation, the Area has shown that 

it has attained the standards. Moreover, 

the State has shown and EPA has 

proposed to determine that attainment 

of both 1997 annual and 2006 24-hour 

PM2.5 NAAQS in this Area is due to 

permanent and enforceable emissions 

reductions on all precursors necessary 

to provide for continued attainment of 

the standards. It follows logically that 

no further control of additional 

precursors is necessary. Accordingly, 

EPA does not view the January 4, 2013 

decision of the D.C. Circuit Court as 

precluding redesignation of the 

Charleston Area to attainment for the 

1997 annual and the 2006 24-hour PM2.5

NAAQS at this time. In summary, even 

if West Virginia was required to address 

precursors for the Charleston Area 

under subpart 4 rather than under 

subpart 1, as interpreted in EPA’s 

remanded 1997 PM2.5 Implementation 

Rule, EPA would still conclude that the 

Area had met all applicable 

requirements for purposes of 

redesignation in accordance with 

section 107(d)(3(E)(ii) and (v) of the 

CAA. 

V. EPA’s Analysis of West Virginia’s 

Submittal 

EPA is proposing several rulemaking 

actions for Charleston Area: (1) To 

redesignate Charleston Area to 

attainment for both the 1997 annual and 

the 2006 24-hour PM2.5 NAAQS; and (2) 

to approve into the West Virginia SIP 

the associated maintenance plans for 

both the 1997 annual and 2006 24-hour 

PM2.5 NAAQS. EPA is also proposing in 

this rulemaking action to approve the 

2008 comprehensive emissions 

inventory to satisfy section 172(c)(3) 

requirement for the 2006 24-hour PM2.5

NAAQS, one of the criteria for 

redesignation. EPA’s proposed 

approvals of the redesignation requests 

and maintenance plans for the 1997 

annual and the 2006 24-hour PM2.5

NAAQS are based upon EPA’s 

determination that the Area continues to 

attain both standards, which EPA is 

proposing in this rulemaking action, 

and that all other redesignation criteria 

have been met for the Charleston Area. 

The following is a description of how 

the WVDEP December 6, 2012 submittal 

and a supplemental submittal on June 

24, 2013 satisfies the requirements of 

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

1997 annual and 2006 24-hour PM2.5

NAAQS. 

A. Requests for Redesignation 

1. Attainment 

As noted previously, in the final 

rulemaking action dated October 11, 

2011 (76 FR 62640), EPA determined 

that the Charleston Area has attained 

the 1997 annual PM2.5 NAAQS. This 

determination of attainment was based 

upon complete, quality-assured and 

certified ambient air quality monitoring 

data for the period of 2007–2009 

showing that the Area had attained the 

1997 annual PM2.5 NAAQS by its 

applicable attainment date of April 5, 

2010. On November 18, 2011 (76 FR 

71450), EPA determined that the 

Charleston Area had a clean data for the 

2006 24-hour PM2.5 NAAQS. The 

determination was based upon 

complete, quality assured, and certified 

ambient air monitoring date showing 

that this Area has monitored attainment 

of the 2006 24-hour PM2.5 NAAQS based 

on the 2007–2009 data and data 

available to date for 2010 in EPA’s Air 

Quality System (AQS) database. Further 

discussion of pertinent air quality issues 

underlying this determination was 

provided in the notice of proposed 

rulemakings for EPA’s determination of 

attainment for this Area, published on 

July 15, 2011 (76 FR 41739) for the 1997 

annual PM2.5 NAAQS and August 19, 


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2011 (76 FR 51927) for the 2006 24-hour 

PM2.5 NAAQS. 

EPA has reviewed the ambient air 

quality PM2.5 monitoring data in the 

Charleston Area consistent with the 

requirements contained at 40 CFR part 

50, and recorded in EPA’s AQS 

database. To support the previous 

determinations of attainment of the 

Area, EPA has also reviewed more 

recent data in its AQS database, 

including certified, quality-assured data 

for the period from 2008–2010, 2009– 

2011 and 2010–2012. This data, shown 

in Table 1, shows that the Charleston 

Area continues to attain the 1997 annual 

and the 2006 24-hour PM2.5 NAAQS. In 

addition, as discussed subsequently 

with respect to the maintenance plan, 

WVDEP has committed to continue 

monitoring ambient PM2.5

concentrations in accordance with 40 

CFR part 58. Thus, EPA is proposing to 

determine that the Charleston Area 

continues and attain the 1997 and the 

2006 24-hour PM2.5 NAAQS. 

TABLE 1—DESIGN VALUES FOR THE CHARLESTON AREA FOR THE 1997 ANNUAL AND THE 2006 24-HOUR PM2.5 NAAQS 

(μg/m3) FOR 2008–2010, 2009–2011 AND 2010–2012 

Monitor ID 

(located in Kanawha County) 

3-Year design values 

2008–2010 

1997 annual 

PM2.5

2008–2010 

2006 24-hour 

PM2.5

2009–2011 

1997 annual 

PM2.5

2009–2011 

2006 24-hour 

PM2.5

2010–2012 

1997 annual 

PM2.5

2010–2012 

2006 24-hour 

PM2.5

540390010 ............................................... 11.8 25 11.0 24 10.7 23 

540390005 ............................................... 13.2 28 12.5 26 11.9 24 

2. The Area Has Met All Applicable 

Requirements Under Section 110 and 

Subpart 1 of the CAA and Has a Fully 

Approved SIP Under Section 110(k) of 

the CAA 

In accordance with section 

107(d)(3)(E)(v) of the CAA, the SIP 

revisions for the 1997 annual and 2006 

24-hour PM2.5 NAAQS for the 

Charleston Area must be fully approved 

under section 110(k) of the CAA and all 

the requirements applicable to the Area 

under section 110 of the CAA (general 

SIP requirements) and part D of Title I 

of the CAA (SIP requirements for 

nonattainment areas) must be met. 

a. Section 110 General SIP 

Requirements 

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

delineates the general requirements for 

a SIP, which include enforceable 

emissions limitations and other control 

measures, means, or techniques, 

provisions for the establishment and 

operation of appropriate devices 

necessary to collect data on ambient air 

quality, and programs to enforce the 

limitations. The general SIP elements 

and requirements set forth in section 

110(a)(2) of the CAA include, but are 

not limited to the following: (1) 

Submittal of a SIP that has been adopted 

by the state after reasonable public 

notice and hearing; (2) provisions for 

establishment and operation of 

appropriate procedures needed to 

monitor ambient air quality; (3) 

implementation of a source permit 

program; provisions for the 

implementation of Part C requirements 

PSD; (4) provisions for the 

implementation of Part D requirements 

for NSR permit programs; (5) provisions 

for air pollution modeling; and (6) 

provisions for public and local agency 

participation in planning and emission 

control rule development. 

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

requires that SIPs contain certain 

measures to prevent sources in a state 

from significantly contributing to air 

quality problems in another state. To 

implement this provision, EPA has 

required certain states to establish 

programs to address the interstate 

transport of air pollutants in accordance 

with the NOX SIP Call (63 FR 57356, 

October 27, 1998), amendments to the 

NOX SIP Call (64 FR 26298, May 14, 

1999 and 65 FR 11222, March 2, 2000), 

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

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

CAA requirements for a state are not 

linked with a particular nonattainment 

area’s designation and classification in 

that state. EPA believes that the 

requirements linked with a particular 

nonattainment area’s designation and 

classifications are the relevant measures 

to evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a state regardless of 

the designation of any one particular 

area in the state. Thus, EPA does not 

believe that these requirements are 

applicable requirements for purposes of 

redesignation. 

In addition, EPA believes that the 

other section 110(a)(2) elements of the 

CAA not connected with nonattainment 

plan submissions and not linked with 

an area’s attainment status are not 

applicable requirements for purposes of 

redesignation. The Charleston Area will 

still be subject to these requirements 

after it is redesignated. EPA concludes 

that the section 110(a)(2) of the CAA 

and part D requirements which are 

linked with a particular area’s 

designation and classification are the 

relevant measures to evaluate in 

reviewing a redesignation request, and 

that section 110(a)(2) elements of the 

CAA not linked in the area’s 

nonattainment status are not applicable 

for purposes of redesignation. This 

approach is consistent with EPA’s 

existing policy on applicability of 

conformity (i.e., for redesignations) and 

oxygenated fuels requirement. See 

Reading, Pennsylvania, proposed and 

final rulemakings (61 FR 53174, October 

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

Cleveland-Akron-Lorain, Ohio final 

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

and Tampa, Florida final rulemaking (60 

FR 62748, December 7, 1995). See also 

the discussion on this issue in the 

Cincinnati, Ohio redesignation (65 FR 

37890, June 19, 2000) and in the 

Pittsburgh, Pennsylvania redesignation 

(66 FR 53099, October 19, 2001). 

EPA has reviewed the West Virginia 

SIP and has concluded that it meets the 

general SIP requirements under section 

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

are applicable for purposes of 

redesignation. EPA has previously 

approved provisions of West Virginia’s 

SIP addressing section 110(a)(2) 

requirements, including provisions 

addressing PM2.5. See (76 FR 47062, 

August 4, 2011). These requirements 

are, however, statewide requirements 

that are not linked to the PM2.5

nonattainment status of the Charleston 

Area. Therefore, EPA believes that these 

SIP elements are not applicable 

requirements for purposes of review of 

West Virginia’s PM2.5 redesignation 

requests. 

b. Subpart 4 Requirements 

Subpart 1sets forth the basic 

nonattainment plan requirements 

applicable to PM2.5 nonattainment areas. 

Under section 172 of the CAA, states 


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with nonattainment areas must submit 

plans providing for timely attainment 

and meet a variety of other 

requirements. 

The General Preamble for 

Implementation of Title I discusses the 

evaluation of these requirements in the 

context of EPA’s consideration of a 

redesignation request. The General 

Preamble sets forth EPA’s view of 

applicable requirements for purposes of 

evaluating redesignation requests when 

an area is attaining the standard. See (57 

FR 13498, April 16, 1992). 

As noted previously, EPA has 

determined that the Charleston Area has 

attained both the 1997 annual and 2006 

24-hour PM2.5 NAAQS. Pursuant to 40 

CFR 51.2004(c), the requirement for 

West Virginia to submit for the 

Charleston Area an attainment 

demonstration and associated RACM, an 

RFP plan, contingency measures, and 

other planning SIPs related to the 

attainment of the 1997 annual and 2006 

24-hour PM2.5 NAAQS are suspended 

until the Area is redesignated to 

attainment for each standard, or EPA 

determines that the Area again violated 

any of the standards, at which time such 

plans are required to be submitted. 

Since the attainment has been reached 

for the Area for the 1997 annual and 

2006 24-hour PM2.5 NAAQS and 

continues to attain both standards, no 

additional measures are needed to 

provide for attainment. Therefore, the 

requirements of sections 172(c)(1), 

172(c)(2), 172(c)(6), and 172(c)(9) of the 

CAA are no longer considered to be 

available for purposes of redesignation 

of the Area for both standards. 

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

submission and approval of a 

comprehensive, accurate and current 

inventory of actual emissions. As a 

result of EPA’s determinations of 

attainment of the Area for the 1997 

annual and 2006 24-hour PM2.5 NAAQS, 

in which certain planning requirements 

were suspended for both standards, the 

only remaining requirement under 

section 172 of the CAA to be considered 

for purposes of redesignation of the 

Area is the comprehensive emissions 

inventory required under section 

172(c)(3) of the CAA. As part of West 

Virginia’s attainment plan submittal, the 

State submitted a 2002 emissions 

inventory for the Charleston Area for the 

1997 annual PM2.5 NAAQS on 

November 4, 2009 which includes 

emissions estimates that cover the 

general source categories of point 

sources, nonroad mobile sources, area 

sources and on-road mobile sources. 

The pollutants that comprise the 

inventory are NOX, VOCs, PM2.5, NH3, 

and SO2. On December 12, 2012 (77 FR 

73923), EPA approved the 2002 

emissions inventory for the 1997 annual 

PM2.5 NAAQS. 

The December 6, 2012 submittal 

included the 2008 comprehensive 

emissions inventory for the 2006 24- 

hour PM2.5 NAAQS. The 2008 emissions 

inventory includes direct PM, NOX and 

SO2. See Tables 2 and 3 in this 

document. On June 24, 2013, West 

Virginia supplemented its submittal 

with the 2008 emission inventories for 

NH3 and VOC for the 2006 24-hour 

PM2.5 NAAQS. The additional emission 

inventories information provided by the 

State addresses emissions of NH3 and 

VOC from the general source categories 

of point sources, area sources, onroad 

mobile sources, and nonroad sources. 

See Tables 2 and 3 in this document. 

The state-submitted inventories were 

based on the data that West Virginia 

certified and submitted to the 2008 

National Emissions Inventory (NEI) that 

is available at http://www.epa.gov/ttn/

chief/net/2008inventory.html. The NEI 

is a comprehensive and detailed 

estimate of air emissions of both criteria 

and hazardous air pollutants from all air 

emissions sources. The NEI is prepared 

every three years by EPA based 

primarily upon emission estimates and 

emission model inputs provided by 

State, Local and Tribal air agencies. 

The NEI point data category contains 

emission estimates for sources that are 

individually inventory and located at a 

fixed, stationary location. Point sources 

include large industrial facilities and 

electric power plants. The NEI nonpoint 

data category contains emissions 

estimates for sources which 

individually are too small in magnitude 

or too numerous to inventory as 

individual point sources. The NEI 

onroad and nonroad data categories 

contain mobile sources which are 

estimated for the 2008 NEI version 3 via 

the MOVES2010b and NONROAD 

models, respectively. NONROAD was 

run within the National Mobile 

Inventory Model (NMIM). 

TABLE 2—KANAWHA COUNTY, CHARLESTON AREA 2008 EMISSIONS IN TONS PER YEAR (TPY) BY SOURCE SECTOR

Sector Direct PM NOX SO2 NH3 VOC 

Point ..................................................................................... 792 10,222 20,018 15 1,850 

Area ...................................................................................... 1,658 786 977 86 2,786 

Nonroad ............................................................................... 262 5,679 263 1 1,818 

Onroad ................................................................................. 214 6,729 47 278 3,385 

Total .............................................................................. 2,926 23,415 21,307 380 9,839 

TABLE 3—PUTMAN COUNTY, CHARLESTON AREA 2008 EMISSIONS (TPY) BY SOURCE SECTOR

Sector Direct PM NOX SO2 NH3 VOC 

Point ..................................................................................... 3,710 13,452 93,535 4 311 

Area ...................................................................................... 608 186 202 48 752 

Nonroad ............................................................................... 100 2,725 141 0 261 

Onroad ................................................................................. 54 1,609 12 61 710 

Total .............................................................................. 4,477 17,972 93,891 113 2,034 

EPA is proposing to approve the 2008 

NH3, VOC, NOX, PM2.5, and SO2

emissions inventory submitted by West 

Virginia for the 2006 24-hour PM2.5

NAAQS. For more information on EPA’s 

analysis of the 2008 emissions 

inventory, see Appendix B of the State 

submittal and EPA’s emissions 

inventory technical support document 

(TSD) dated August 29, 2013, available 

in the docket for this rulemaking action 

at www.regulations.gov. Docket ID No. 


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EPA–OAR–RO3–2013–0090. Final 

approval of the 2008 emissions 

inventory will satisfy the emissions 

inventory requirement of section 

172(c)(3) of the CAA for the 2006 24- 

hour PM2.5 NAAQS. 

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

the identification and quantification of 

allowable emissions for major new and 

modified stationary sources in an area, 

and section 172(c)(5) of the CAA 

requires source permits for the 

construction and operation of new and 

modified major stationary sources 

anywhere in the nonattainment area. 

EPA has determined that, since the PSD 

requirements will apply after 

redesignation, areas being redesignated 

need not comply with the requirement 

that a nonattainment NSR program be 

approved prior to redesignation, 

provided that the area demonstrates 

maintenance of the NAAQS without 

part D NSR. A more detailed rationale 

for this view is described in a 

memorandum from Mary Nichols, 

Assistant Administrator for Air and 

Radiation, dated October 14, 1994 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ 

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 

Charleston Area upon redesignation to 

attainment. 

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

the SIP to meet the applicable 

provisions of section 110(a)(2) of the 

CAA. As noted previously, EPA believes 

the West Virginia SIP meets the 

requirements of section 110(a)(2) of the 

CAA that are applicable for purposes of 

redesignation. 

Section 175A of the CAA requires a 

state seeking redesignation to 

attainment to submit a SIP revision to 

provide for the maintenance of the 

NAAQS in the area ‘‘for at least 10 years 

after the redesignation.’’ In conjunction 

with its request to redesignate the 

Charleston Area to attainment status, 

West Virginia submitted SIP revisions to 

provide for maintenance of the 1997 

annual and 2006 24-hour PM2.5 NAAQS 

in the Charleston Area for at least 10 

years after redesignation, throughout 

2025. West Virginia is requesting that 

EPA approve this SIP revision as 

meeting the requirement of section 

175A of the CAA. Once approved, the 

maintenance plans for the Charleston 

Area will ensure that the SIP for West 

Virginia meets the requirements of the 

CAA regarding maintenance of the 1997 

annual and 2006 24-hour PM2.5 NAAQS 

for the Charleston Area. EPA’s analysis 

of the maintenance plans is provided in 

section V.B of this document. 

Section 176(c) of the CAA requires 

states to establish criteria and 

procedures to ensure that Federally 

supported or funded projects conform to 

the air quality planning goals in the 

applicable SIP. The requirement to 

determine conformity applies to 

transportation plans, programs, and 

projects developed, funded or approved 

under Title 23 of the United States Code 

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

(transportation conformity) as well as to 

all other Federally supported or funded 

projects (general conformity). State 

transportation conformity SIP revisions 

must be consistent with Federal 

conformity regulations relating to 

consultation, enforcement and 

enforceability which EPA promulgated 

pursuant to its authority under the CAA. 

EPA interprets the conformity SIP 

requirements as not applying for 

purposes of evaluating the redesignation 

request under section 107(d) of the CAA 

because state conformity rules are still 

required after redesignation and Federal 

conformity rules apply where state rules 

have not been approved. See Wall v. 

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

(upholding this interpretation). See also 

(60 FR 62748, December 7, 1995) 

(discussing Tampa, Florida). 

Thus, for purposes of redesignating to 

attainment the Charleston Area for the 

1997 annual PM2.5 NAAQS, EPA 

determines that the Area has met all 

applicable SIP requirements under part 

D of Title I of the CAA. EPA also 

determines that upon final approval of 

the 2008 comprehensive emissions 

inventory as proposed in this 

rulemaking action, the Charleston Area 

will also meet all applicable SIP 

requirements under part D of Title I of 

the CAA for purposes of redesignating 

the Area to attainment for the 2006 24- 

hour PM2.5 NAAQS. 

c. The Charleston Area Has a Fully 

Approved Applicable SIP Under Section 

110(k) of the CAA 

For purposes of redesignation to 

attainment for the 1997 annual PM2.5

NAAQS, EPA has fully approved all 

applicable requirements of the West 

Virginia SIP for the Area in accordance 

with section 110(k) of the CAA. Upon 

final approval of the 2008 

comprehensive emissions inventory 

proposed in this rulemaking action, EPA 

will have fully SIP-approved all 

applicable requirements of the West 

Virginia SIP for the Area for purposes of 

redesignaton to attainment for the 2006 

24-hour PM2.5 NAAQS in accordance 

with section 110(k) of the CAA. 

3. Permanent and Enforceable 

Reductions in Emissions 

For redesignating a nonattainment 

area to attainment, section 

107(d)(3)(E)(iii) of the CAA requires 

EPA to determine that the air quality 

improvement in the area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP and 

applicable Federal air pollution control 

regulations and other permanent and 

enforceable reductions. EPA believes 

that West Virginia has demonstrated 

that the observed air quality 

improvement in the Area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP, Federal 

measures, and other state-adopted 

measures. In making this demonstration, 

West Virginia has calculated the change 

in emissions between 2005, one of the 

years used to designate the Area as 

nonattainment, and 2008, one of the 

years the Area monitored attainment as 

provided in Table 4. 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 Area and contributing areas 

have implemented in recent years. For 

more information on EPA’s analysis of 

the 2005 and 2008 emissions inventory, 

see EPA’s emissions inventory TSD 

dated August 29, 2013, available in the 

docket for this rulemaking action at 

www.regulations.gov. Docket ID No. 

EPA–OAR–RO3–2013–0090. 

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

AREA

2005 2008 Decrease 

EGU NOX ..................................................................................................................................... 38,226 17,555 20,671 


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

AREA—Continued 

2005 2008 Decrease 

EGU PM2.5 ................................................................................................................................... 4,802 4,359 443 

EGU SO2 ..................................................................................................................................... 125,276 108,959 16,317 

Onroad NOX ................................................................................................................................ 10,776 8,337 2,439 

Onroad PM2.5 ............................................................................................................................... 351 268 83 

Onroad SO2 ................................................................................................................................. 214 59 155 

Nonroad NOX ............................................................................................................................... 973 897 76 

Nonroad PM2.5 ............................................................................................................................. 119 113 6 

Nonroad SO2 ............................................................................................................................... 76 14 62 

a. Federal Measures Implemented 

Reductions in PM2.5 precursor 

emissions have occurred statewide and 

in upwind states as a result of Federal 

emission control measures, with 

additional emission reductions expected 

to occur in the future. The Tier 2 

Emission Standards for Vehicles and 

Gasoline Sulfur Standards (Tier 2 

Standards) have resulted in lower NOX

and SO2 emissions from new cars and 

light duty trucks, including sport utility 

vehicles. The Federal rules were phased 

in between 2004 and 2009. EPA has 

estimated that, after phasing in the new 

requirements, new vehicles emit less 

NOX in the following percentages: 

Passenger cars (light duty vehicles)—77 

percent; light duty trucks, minivans, 

and sports utility vehicles—86 percent; 

and larger sports utility vehicles, vans, 

and heavier trucks—69–95 percent. EPA 

expects fleet wide average emissions to 

decline by similar percentages as new 

vehicles replace older vehicles. The Tier 

2 standards also reduced the sulfur 

content of gasoline to 30 parts per 

million (ppm) beginning in January 

2006, which reflects up to a 90 percent 

reduction in sulfur content. 

EPA issued the Heavy-Duty Diesel 

Engine Rule in July 2000. This rule 

includes standards limiting the sulfur 

content of diesel fuel, which went into 

effect in 2004. A second phase took 

effect in 2007 which reduced PM2.5

emissions from heavy-duty highway 

engines and further reduced the 

highway diesel fuel sulfur content to 15 

ppm. The total program is estimated to 

achieve a 90 percent reduction in direct 

PM2.5 emissions and a 95 percent 

reduction in NOX emissions for these 

new engines using low sulfur diesel, 

compared to existing engines using 

higher sulfur diesel fuel. The reduction 

in fuel sulfur content also yielded an 

immediate reduction in particulate 

sulfate emissions from all diesel 

vehicles. 

In May 2004, EPA promulgated the 

Nonroad Diesel Rule for large nonroad 

diesel engines, such as those used in 

construction, agriculture, and mining, to 

be phased in between 2008 and 2014. 

The rule also reduces the sulfur content 

in nonroad diesel fuel by over 99 

percent. Prior to 2006, nonroad diesel 

fuel averaged approximately 3,400 ppm 

sulfur. This rule limited nonroad diesel 

sulfur content to 500 ppm by 2006, with 

a further reduction to 15 ppm by 2010. 

b. State and Local Measures 

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 Charleston Area are located 

at the Appalachian Power—Kanawha 

River Plant in Kanawha County and 

Appalachian Power—John E. Amos 

Plant in Putnam County. EPA issued the 

NOX SIP Call in 1998 pursuant to the 

CAA to require 22 states and the District 

of Columbia to reduce NOX emissions 

from large EGUs and large non-EGUs 

such as industrial boilers, internal 

combustion engines, and cement kilns. 

See (63 FR 57356, October 27, 1998). 

EPA approved West Virginia’s Phase I 

NOX SIP Call rule on May 10, 2002 (67 

FR 31733) and Phase II rule on 

September 28, 2006 (71 FR 56881). 

Emission reductions resulting from 

regulations developed in response to the 

NOX SIP Call are permanent and 

enforceable. 

On March 10, 2005, EPA issued CAIR, 

which applies to 27 states and the 

District of Columbia. CAIR relied on 3 

separate cap-and-trade programs to 

reduce SO2 and NOX emissions. On 

August 4, 2009 (74 FR 38536), EPA 

approved West Virginia’s CAIR rules 

into the West Virginia SIP. The 

maintenance plans for the Area for both 

1997annual and 2006 24-hour PM2.5

NAAQS, thus, list CAIR as a control 

measure for the purpose of reducing SO2

and NOX emissions from EGUs. 

On August 8, 2011 (76 FR 48208), 

EPA promulgated CSAPR to replace 

CAIR, which has been in place since 

2005. The D.C. Circuit Court initially 

vacated CAIR, North Carolina v. EPA, 

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

ultimately remanded the rule to EPA 

without vacatur to preserve the 

environmental benefits provided by 

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

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

21, 2012, the D.C. Circuit Court issued 

a decision to vacate CSAPR. In that 

decision, it also ordered EPA to 

continue administering CAIR ‘‘pending 

the promulgation of a valid 

replacement.’’ EME Homer City, 696 

F.3d at 38. EPA and other parties have 

filed petitions for certiorari to the U.S. 

Supreme Court, and on June 24, 2013, 

the Supreme Court granted certiorari on 

EPA’s petition for appeal of EME Homer 

City Generation. See EME Homer City 

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

Cir. 2012), cert. granted, 570 U.S.— 

(2013). Nonetheless, EPA intends to 

continue to act in accordance with the 

EME Homer City opinion. 

As noted earlier, EPA believes it is 

appropriate to allow states to rely on the 

existing emissions reductions achieved 

by CAIR, as sufficiently permanent and 

enforceable pending a valid replacement 

rule, for purposes such as a 

redesignation. CAIR was in place and 

thus getting emission reductions when 

the Charleston Area monitored 

attainment of the 1997 annual and 2006 

24-hour PM2.5 NAAQS. The monitoring 

data used to demonstrate the Area’s 

attainment of the 1997 annual and 2006 

24-hour PM2.5 NAAQS was impacted by 

CAIR. EPA finds West Virginia 

appropriately included CAIR as a 

control measure in this SIP revision. 

Furthermore, 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 the 

Charleston Area, namely, Appalachian 

Power, Kanawha River Plant in 

Kanawha County; and Appalachian 

Power, John E. Amos Plant in Putnam 

County. As part of a Federally 

enforceable consent decree, the 

Kanawha River Plant was required, on 

the date of entry, to operate low NOX

burners continuously to control 


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emissions of NOX and also on the date 

of entry, units can only burn coal with 

sulfur content no greater than 1.75 lb/ 

one million British Thermal Unit 

(mmBTU) on an annual average basis to 

reduce SO2 emissions. Since 2008, 

additional controls have and will be 

installed on EGUs within the Area 

which will continue to contribute to the 

reductions in precursor pollutants for 

PM2.5. Table 5 provides the reductions 

from EGUs in the Area from 2005 and 

2008. EPA believes that West Virginia 

has adequately demonstrated that the 

improvement in air quality in 

Charleston Area is due to permanent 

and enforceable emissions reductions 

resulting from implementation of the 

SIP, Federal measures, and other Stateadopted measures. 

TABLE 5—SUMMARY OF REDUCTIONS FROM EGUS IN THE CHARLESTON AREA, IN TPY

2005 2008 Reductions 

SO2 .............................................................................................................................................. 125,276 108,959 16,317 

NOX .............................................................................................................................................. 38,226 17,555 20,671 

PM2.5 ............................................................................................................................................ 4,802 4,359 443 

B. Maintenance Plans 

On December 6, 2012, WVDEP 

submitted maintenance plans for the 

Charleston Area for the 1997 annual and 

2006 24-hour PM2.5 NAAQS as required 

by section 175A of the CAA. EPA’s 

analysis for proposing approval of the 

maintenance plans are provided in this 

section. 

1. Attainment Emissions Inventory 

An attainment inventory is comprised 

of the emissions during the time period 

associated with the monitoring data 

showing attainment. WVDEP developed 

emissions inventories for NOX, direct 

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

in the period during which the 

Charleston 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 

Kanawha and Putnam Counties in West 

Virginia. WVDEP used the 2008 annual 

emissions inventory submitted to EPA’s 

NEI database and EPA’s Clean Air 

Markets Division (CAMD) 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 

Transportation (ODOT), Ohio EPA, West 

Virginia Department of Transportation 

(WVDOT), WVDEP, Kentucky 

Transportation Cabinet (KYTC), and the 

Kentucky Division of Air Quality 

(KDAQ). 

EPA has reviewed the documentation 

provided by WVDEP and found the 

emissions inventory to be acceptable. 

For more information on EPA’s analysis 

of the 2008 emissions inventory, see 

Appendix B of the State submittal and 

the emissions inventory TSD dated 

August 29, 2013, available on line at 

www.regulations.gov, Docket ID No. 

EPA–OAR–R03–2013–0090. 

2. Maintenance Demonstration 

Section 175A requires a state seeking 

redesignation to attainment to submit a 

SIP revision to provide for the 

maintenance of the NAAQS in the area 

‘‘for at least 10 years after the 

redesignation.’’ EPA has interpreted this 

as a showing of maintenance ‘‘for a 

period of ten years following 

redesignation.’’ Where the emissions 

inventory method of showing 

maintenance is used, its purpose is to 

show that emissions during the 

maintenance period will not increase 

over the attainment year inventory. See 

1992 Calcagni Memorandum, pages 9– 

10. 

For a demonstration of maintenance, 

emissions inventories are required to be 

projected to future dates to assess the 

influence of future growth and controls; 

however, the maintenance 

demonstration need not be based on 

modeling. See Wall v. EPA, supra; 

Sierra Club v. EPA, supra. See also 66 

FR 53099–53100; 68 FR 25430–32. 

WVDEP uses projection inventories to 

show that the Area will remain in 

attainment and developed projection 

inventories for an interim year of 2018 

and a maintenance plan end year of 

2025 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 

Charleston Area through the year 2025. 

The projection inventories for the 

2018 and 2025 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 

2018 point source inventory by 

interpolation between VISTAS/ASIP 

2012 and 2018 modeling inventory. The 

2025 EGU inventory for PM2.5, NOX, and 

SO2 was kept the same as the VISTAS/ 

ASIP 2018 inventory. The 2025 nonEGU inventory was extrapolated from 

the 2012 and 2018 inventory. Point 

source emissions for 2012 and 2018 

were developed for EGUs and nonEGUs. 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 2018 were 

interpolated from the VISTAS/ASIP 

2012 and 2018 inventories. The 2025 

emissions were extrapolated from the 

VISTAS/ASIP 2012 and 2018 

inventories. Growth and controls for 

emissions were based on the 


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methodologies applied by EPA for the 

CAIR analysis. Nonroad source 

emissions, including aircraft, 

locomotives, and commercial marine 

vessels (CMV) for 2018 were 

interpolated from the VISTAS/ASIP 

2012 and 2018 inventories. CMV source 

emissions from SO2 included in the 

2025 inventory were held constant at 

2018 levels because no further reduction 

in fuel sulfur content is expected. All 

other nonroad source emissions for 2025 

were extrapolated from the VISTAS/

ASIP 2012 and 2018 inventories. The 

2018 and 2025 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 analysis of the 

emissions inventory, see Appendix B of 

the State submittal and EPA’s TSD 

dated August 29, 2013, available on line 

at www.regulations.gov, Docket ID No. 

EPA–OAR–R03–2013–0090. Table 6 

provides the inventories for the 2008 

attainment year, the 2018 interim year, 

and the 2025 maintenance plan end year 

for the Area. 

TABLE 6—COMPARISON OF 2008, 2018, AND 2025 SO2, NOX, AND DIRECT PMEMISSION TOTALS FOR THE CHARLESTON

AREA (IN TPY) 

SO2 NOX PM2.5

2008 (attainment) ......................................................................................................................... 115,198 41,387 7,403 

2018 (interim) ............................................................................................................................... 23,535 28,331 5,929 

2018 (projected decrease) ........................................................................................................... 91,663 13,056 1,474 

2025 (maintenance) ..................................................................................................................... 23,694 27,291 5,869 

2025 (projected decrease) ........................................................................................................... 91,504 14,907 1,534 

Table 6 shows that between 2008 and 

2018, the Area is projected to reduce 

SO2 emissions by 91,663 tpy, NOX

emissions by 13,056 tpy, and direct 

PMemissions by 1,474 tpy. Between 

2008 and 2025, the Area is projected to 

reduce SO2 emissions by 91,504 tpy, 

NOX emissions by 14,907 tpy, and direct 

PM2.5 emissions by 1,534 tpy. Thus, the 

projected emissions inventories show 

that the Area will continue to maintain 

the 1997 annual and 2006 PM2.5 NAAQS 

during the 10 year maintenance period. 

3. Monitoring Network 

West Virginia’s maintenance plans 

include a commitment to continue to 

operate its EPA-approved monitoring 

network, as necessary to demonstrate 

ongoing compliance with the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

West Virginia currently operates two 

PM2.5 monitors in the Charleston Area. 

These monitors are located in Kanawha 

County and operated by the West 

Virginia Division of Air Quality. West 

Virginia will consult with EPA prior to 

making any necessary changes to the 

network and will continue to quality 

assure the monitoring data in 

accordance with the requirements of 40 

CFR part 58. 

4. Verification of Continued Attainment 

To provide for tracking of the 

emission levels in the Area, WVDEP 

requires major point sources to submit 

air emissions information annually and 

prepares a new periodic inventory for 

all PM2.5 precursors every three years in 

accordance with EPA’s Air Emissions 

Reporting Requirements (AERR). 

Emissions information will be compared 

to the attainment year inventory (2008) 

to assure continued attainment with the 

1997 annual and 2006 24-hour PM2.5

NAAQS and will used to assess 

emissions trends, as necessary. 

5. Contingency Measures 

The contingency plan provisions are 

designed to promptly correct a violation 

of either the 1997 annual or the 2006 24- 

hour PM2.5 NAAQS that occurs in the 

Area after redesignation. Section 175A 

of the CAA requires that a maintenance 

plan include such contingency 

measures as EPA deems necessary to 

ensure that a state will promptly correct 

a violation of the NAAQS that occurs 

after redesignation. The maintenance 

plan should identify the events that 

would ‘‘trigger’’ the adoption and 

implementation of a contingency 

measure(s), the contingency measure(s) 

that would be adopted and 

implemented, and the schedule 

indicating the time frame by which the 

state would adopt and implement the 

measure(s). 

West Virginia’s maintenance plans 

outline 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 for the 1997 annual 

PM2.5 NAAQS when the average 

weighted annual mean for a single 

calendar year exceeds 15.5 mg/m3 within 

the Charleston Area. An initial warning 

level response is triggered for the 2006 

24-hour PM2.5 NAAQS when the 98th 

percentile 24-hour PM2.5 concentration 

for a single calendar year exceeds 35.5 

mg/m3 within the Area. In the case of 

triggering a warning level, a study will 

be conducted to determine if the 

emissions trends show increasing 

concentrations of PM2.5, and whether 

this trend, if any, is likely to continue. 

If it is determined through the study 

that 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. 

For the 1997 annual PM2.5 NAAQS, 

the action level response will be 

prompted by any one of the following: 

(1) A warning level response study 

showing emissions increases; (2) a twoyear average of the weighted annual 

mean of 15.0 mg/m3or greater occurs 

within the Area; or (3) a violation of the 

standard in the Area (i.e., a three-year 

average of the weighted annual means of 

15.0 mg/m3 or greater). For the 2006 24- 

hour PM2.5 NAAQS, the action level 

response will be prompted by the 

following: (1) A warning level response 

study showing emissions increases; (2) 

a two-year average of the 98th percentile 

of 35 mg/m3 or greater within the area; 

or (3) a violation of the standard in Area 

(i.e., a three-year average of the 98th 

percentile of 35 mg/m3 or greater). If an 

action level response is triggered for any 

of the standards, 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. 


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11 ‘‘Review of the NAAQS for Particulate Matter— 

Regulatory Impact Analysis.’’ Docket ID No. EPA– 

R03–OAR–2010–0955. 

12These emissions estimates were taken from the 

emissions inventories developed for the RIA for the 

2012 PM2.5 NAAQS. 

West Virginia commits to adopt and 

expeditiously implement the necessary 

corrective actions. West Virginia’s 

potential contingency measures include 

the following: (1) Diesel reduction 

emission strategies, (2) alternative fuels 

and diesel retrofit programs for fleet 

vehicle operations, (3) tighter 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, which include 

the following: 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, and 

aggregate processing plants. 

6. EPA’s Evaluation of VOC and NH3

Precursors in West Virginia’s 

Maintenance Plans 

With regard to the redesignation of 

the Charleston Area in evaluating the 

effect of the DC Circuit Court’s remand 

of EPA’s 1997 PM2.5 Implementation 

Rule, which included presumptions 

against consideration of VOC and NH3

as PM2.5 precursors, EPA in this 

proposal is also considering the impact 

of the decision on the maintenance plan 

required under sections 175A and 

107(d)(3)(E)(iv) of the CAA. To begin 

with, EPA notes that the Area has 

attained both the 1997 annual and 2006 

24-hour PM2.5 NAAQS and that West 

Virginia has shown that attainment of 

these standards are due to permanent 

and enforceable emission reductions. 

EPA proposes to determine that the 

West Virginia’s maintenance plan shows 

continued maintenance of the 1997 

annual and 2006 24-hour PM2.5 NAAQS 

by tracking the levels of the precursors 

whose control brought about attainment 

of the standards in the Charleston 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 VOC and 

NH3 in demonstrating continued 

maintenance in this Area. As explained 

subsequently, based upon 

documentation provided by the State 

and supporting information, EPA 

believes that the maintenance plan for 

the Area need not include any 

additional emission reductions of VOC 

or NH3 in order to provide for continued 

maintenance of the 1997 annual and the 

2006 24-hour PM2.5 NAAQS. 

First, as noted previously in EPA’s 

discussion of section 189(e), VOC 

emission levels in the Charleston Area 

have historically been well-controlled 

under SIP requirements related to ozone 

and other pollutants. Second, total NH3

emissions throughout the Charleston 

Area are low, estimated to be less than 

600 tons per year. See Table 7 in this 

document. 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. 

West Virginia’s maintenance plan 

shows that significant emissions of 

direct PM, NOX, and SO2 are projected 

to decrease by 1,534 tpy, 14,907 tpy, 

and 91,504 tpy, respectively, over the 

maintenance period in the Area. See 

Table 6 in this document. In addition, 

emissions inventories used in the 

regulatory impact analysis (RIA) for the 

2012 PM2.5 NAAQS 11 show that VOC 

emissions in the Area are projected to 

decrease by 4,282 tpy between 2007 and 

2020. NH3 emissions are projected to 

increase by 55 tpy between 2007 and 

2020; however this increase is not 

significant when compared with the 

emissions reductions projected for the 

other precursors. See Table 7 in this 

document. Given that the Charleston 

Area is already attaining the 1997 

annual and the 2006 24-hour PM2.5

NAAQS even with the current level of 

emissions from sources in the Area, the 

downward trend of emissions 

inventories would be consistent with 

continued attainment. 

Indeed, projected emissions 

reductions for the precursors that West 

Virginia is addressing for purposes of 

the 1997 annual and 2006 24-hour PM2.5

NAAQS indicate that the Area should 

continue to attain both standards 

following the precursor control strategy 

that the State has already elected to 

pursue. 

Even if VOC and NH3 emissions were 

to increase unexpectedly between 2007 

and 2025, the overall emissions 

reductions projected between 2008 and 

2025 of direct PM2.5, NOX, and SO2

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 

either the 1997 annual or 2006 24-hour 

PM2.5 standard during the maintenance 

period. 

TABLE 7—COMPARISON OF 2007 AND 2020 EMISSIONS OF VOC AND NH3 FOR THE CHARLESTON AREA, IN TPY 12

Sector 

VOC NH3

2007 2020 Net change 

2007–2020 2007 2020 Net Change 2007–2020 

Point ................................................................................. 2,182 2,185 3 20 161 141 

Area .................................................................................. 2,825 2,605 ¥220 118 120 2 

Nonroad ........................................................................... 2,413 1,494 ¥919 4 4 0 

On-road ............................................................................ 4,263 1,117 ¥3,164 155 69 ¥86 

Fires ................................................................................. 2,167 2,167 0 150 150 0 

Total .......................................................................... 13,850 9,568 ¥4,282 447 504 55 

In addition, available air quality 

modeling analyses show continued 

maintenance of the standard during the 

maintenance period. The current annual 

design value for the Area is 12.5 mg/m3

and the current 24-hour design value is 

26 mg/m3, based on 2009–2011 air 

quality data, which are well below the 

levels of the 1997 annual and 2006 24- 

hour PM2.5 NAAQS. See Table 1 in this 

document. Moreover, the modeling 

analysis conducted for the RIA for the 

2012 PM2.5 NAAQS indicates that the 

design values for the Charleston Area 

are expected to continue to decline 


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13The 2020 projected PM2.5 design values are part 

of the RIA for the 2012 PM2.5 NAAQS. 

through 2020. In the RIA analysis, the 

2020 modeled annual design value for 

the Area is 9.4 mg/m3 and the 2020 24- 

hour design value is 17 mg/m3.13 Given 

that most precursor emissions are 

projected to decrease through 2025, it is 

reasonable to conclude that monitored 

PM2.5 levels in the Area will also 

continue to decrease through 2025. 

Thus, EPA believes that there is 

ample justification to conclude that the 

Charleston Area should be redesignated, 

even taking into consideration the 

emissions of other precursors 

potentially relevant to PM2.5. After 

consideration of the DC Circuit Court’s 

January 4, 2013 decision, and for the 

reasons set forth in this notice, EPA 

proposes to approve West Virginia’s 

maintenance plans and requests to 

redesignate the Charleston Area to 

attainment for the 1997 annual and 2006 

24-hour PM2.5 standards. This proposed 

rulemaking action is based on a showing 

that the West Virginia’s maintenance 

plans provide for maintenance of both 

the 1997 annual and 2006 24-hour PM2.5

standards for at least 10 years after 

redesignation, throughout 2025, in 

accordance with section 175A of the 

CAA. 

C. Transportation Conformity 

Insignificance Determinations 

Transportation conformity is required 

under section 176(c) of the CAA to 

ensure that Federally supported 

highway, transit projects, and other 

activities are consistent with (conform 

to) the purpose of the SIP. The CAA 

requires Federal actions in 

nonattainment and maintenance areas to 

‘‘conform to’’ the goals of the SIP. This 

means that such actions will not cause 

or contribute to violations of a NAAQS 

or any interim milestone. Actions 

involving Federal Highway 

Administration (FHWA) or Federal 

Transit Administration (FTA) funding 

or approval are subject to the 

Transportation Conformity Rule (40 CFR 

part 93, subpart A). Under this rule, 

metropolitan planning organizations 

(MPOs) in nonattainment and 

maintenance areas coordinate with state 

air quality and transportation agencies, 

EPA, FHWA, and FTA to demonstrate 

that their metropolitan transportation 

plans and transportation improvement 

plans (TIPs) conform to applicable SIPs. 

This is typically determined by showing 

that estimated emissions from existing 

and planned highway and transit 

systems are less than or equal to the 

motor vehicle emissions budgets 

(MVEBs) contained in a SIP. 

For MVEBs to be approvable, they 

must meet, at a minimum, EPA’s 

adequacy criteria in 40 CFR 

93.118(e)(4). However, in certain 

instances, the Transportation 

Conformity Rule allows areas to forgo 

establishment of a MVEB 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. The general 

criteria for insignificance 

determinations can be found in 40 CFR 

93.109(f). Insignificance determinations 

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. EPA’s 

rationale for providing for insignificance 

determinations is described in the July 

1, 2004, revision to the Transportation 

Conformity Rule at 69 FR 40004. 

Specifically, the rationale is explained 

on page 40061 under the subsection 

XXIII.B entitled, ‘‘Areas With 

Insignificant Motor Vehicle Emissions.’’ 

As part of the 1997 annual and the 

2006 24-hour PM2.5 NAAQS 

redesignation requests and maintenance 

plans, West Virginia is requesting that 

EPA finds that onroad emission of direct 

PM and NOX emissions for the 

Charleston Area are insignificant for 

transportation conformity purposes. On 

September 12, 2013, EPA initiated an 

adequacy review of the findings of 

insignificance for both the 1997 annual 

and the 2006 24-hour PM2.5 NAAQS that 

West Virginia included in its 

redesignation submittals. As such, 

notices of the submission of these 

findings were posted on the adequacy 

Web site (http://epa.gov/otaq/

stateresources/transconf/currsips.htm). 

The public comment period closed on 

October 15, 2013. There were no public 

comments. EPA is acting on making 

these adequacy findings final through a 

separate notice of adequacy. Consistent 

with EPA’s adequacy review of West 

Virginia’s redesignation requests and 

maintenance plans and EPA’s thorough 

review of the entire SIP submissions, 

EPA is proposing to approve West 

Virginia’s insignificance determinations 

for the onroad motor vehicle 

contribution of PM2.5 and NOX

emissions to the overall PM2.5 emissions 

for the 1997 annual and the 2006 24- 

hour PM2.5 NAAQS for the Charleston 

Area. 

Because EPA finds that West 

Virginia’s submittals meet the criteria in 

the Transportation Conformity Rule for 

insignificance findings for motor vehicle 

emissions of PM2.5 and NOX in the 

Charleston Area, it is not necessary to 

establish PM2.5 and NOX MVEBs for the 

Area. EPA finds that the submittals 

demonstrate that PM2.5 and NOX, 

regional motor vehicle emissions are 

insignificant contributors to the annual 

and daily PM2.5 air quality in the 

Charleston Area. These findings are 

based on the following: (1) West 

Virginia provided information that 

projects that onroad mobile source NOX

constitutes 8 percent or less of the 

Area’s total NOX emissions in 2018 and 

2025 due to continuing fleet turnover; 

(2) West Virginia provided information 

that projects that onroad mobile source 

PM2.5 emissions constitute 3.62 percent 

of the Area’s total PM2.5 emissions and 

decreases significantly in later analysis 

years to 1.89 percent (2018) and 1.40 

percent (2025); (3) there are no SIP 

requirements for motor vehicle control 

measures for the Area and it is unlikely 

that motor vehicle control measures will 

be implemented for PM2.5 in the Area in 

the future; and (4) the Area has attained 

both the 1997 annual and the 2006 24- 

hour PM2.5 NAAQS. As a result, MVEBs 

for PM2.5 and NOX are not required for 

the Charleston Area to maintain the 

1997 annual and the 2006 24-hour PM2.5

NAAQS. EPA is proposing to approve 

the findings of insignificant 

contribution by onroad sources for PM2.5

and NOX, resulting in no proposed 

MVEBs for the Charleston Area for the 

2018 and 2025 projected maintenance 

years. Onroad emissions were 

calculated using the EPA required 

MOVES2010a model. 

West Virginia did not provide 

emission budgets for SO2, VOC, and 

NH3 because it concluded, consistent 

with the presumptions regarding these 

precursors in the Transportation 

Conformity Rule at 40 CFR 

93.102(b)(2)(v), which predated and was 

not disturbed by the litigation on the 

1997 PM2.5 Implementation Rule, that 

emissions of these precursors from 

motor vehicles are not significant 

contributors to the Area’s PM2.5 air 

quality problem. 

EPA issued conformity regulations to 

implement the 1997 annual PM2.5

NAAQS in July 2004 and May 2005 (69 

FR 40004, July 1, 2004 and 70 FR 24280, 

May 6, 2005). Those actions were not 

part of the final rule recently remanded 

to EPA by the DC Circuit Court in NRDC 

v. EPA, No. 08–1250 (Jan. 4, 2013), in 

which the DC Circuit Court remanded to 

EPA the 1997 PM2.5 Implementation 

Rule because it concluded that EPA 


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14The 2004 rulemaking action addressed most of 

the transportation conformity requirements that 

apply in PM2.5 nonattainment and maintenance 

areas. The 2005 conformity rule included 

provisions addressing treatment of PM2.5 precursors 

in MVEBs. See 40 CFR 93.102(b)(2). While none of 

these provisions were challenged in the NRDC case, 

EPA also notes that the Court declined to address 

challenges to EPA’s presumptions regarding PM2.5

precursors in the PM2.5 implementation rule. NRDC 

v. EPA, at 27, n. 10. 

must implement that NAAQS pursuant 

to the PM-specific implementation 

provisions of subpart 4, rather than 

solely under the general provisions of 

subpart 1. That decision does not affect 

EPA’s proposed approval of the 

insignificance findings. 

First, as noted above, EPA’s 

conformity rule implementing the 1997 

annual PM2.5 NAAQS was a separate 

action from the overall PM2.5

implementation rule addressed by the 

DC Circuit Court and was not 

considered or disturbed by the decision. 

Therefore, the conformity regulations 

were not at issue in NRDC v. EPA.14 In 

addition, as discussed in section V.A.1 

of this rulemaking action, the air quality 

data show that the Charleston Area 

continues to attain both the 1997 annual 

and 2006 24-hour PM2.5 NAAQS. 

Further, West Virginia’s maintenance 

plan shows continued maintenance 

through 2025 by demonstrating that 

NOX, SO2, and direct PM emissions 

continue to decrease through the 

maintenance period. With regard to SO2, 

the 2005 final conformity rule (70 FR 

24280) based its presumption 

concerning onroad SO2 MVEBs on 

emissions inventories that show that 

SO2 emissions from onroad sources 

constitute a ‘‘de minimis’’ portion of 

total SO2 emissions. For the Charleston 

Area, onroad mobile source SO2

constitutes less than two tenth of one 

percent (less than 0.2 percent) of the 

Area’s total SO2 emissions in the 2018 

and 2025 horizon years. For more 

information on EPA’s review of the 

determination of insignificance, see the 

TSD dated October 29, 2013, available 

on line at www.regulations.gov, Docket 

ID No. EPA–OAR–R03–2013–0090. 

VI. Proposed Actions 

EPA is proposing to approve the 

redesignation of the Charleston Area 

from nonattainment to attainment for 

the 1997 annual and 2006 24-hour PM2.5

NAAQS. EPA has evaluated West 

Virginia’s redesignation requests and 

determined that upon approval of the 

2008 comprehensive emissions 

inventory for the 2006 24-hour PM2.5

NAAQS proposed in this rulemaking 

action, it would meet the redesignation 

criteria set forth in section 107(d)(3)(E) 

of the CAA for both standards. EPA 

believes that the monitoring data 

demonstrate that the Charleston Area is 

attaining and will continue to attain the 

1997 annual and the 2006 24-hour PM2.5

NAAQS. EPA is also proposing to 

approve the associated maintenance 

plans for the Area submitted on 

December 6, 2012, as a revision to the 

West Virginia SIP because it meets the 

requirements of section 175A of the 

CAA for both standards. For 

transportation conformity purposes, 

EPA is also proposing to approve both 

the 1997 annual and the 2006 24-hour 

PM2.5 NAAQS, West Virginia’s 

determinations that onroad emissions of 

PM2.5 and NOX are insignificant 

contributors to PM2.5 concentrations in 

the Charleston Area. Final approval of 

these redesignation requests would 

change the official designations of the 

Charleston Area from nonattainment to 

attainment for the 1997 annual and 2006 

24-hour PM2.5 NAAQS at 40 CFR part 

81, and would incorporate into the West 

Virginia SIP the associated maintenance 

plans ensuring continued attainment of 

the 1997 annual and the 2006 24-hour 

PM2.5 NAAQS in Charleston Area for the 

next 10 years, until 2025. EPA is 

soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of the 

maintenance plan under section 

107(d)(3)(E) of the CAA are actions that 

affect the status of geographical area and 

do not impose any additional regulatory 

requirements on sources beyond those 

required by state law. A redesignation to 

attainment does not in and of itself 

impose any new requirements, but 

rather results in the application of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

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 rulemaking 

action merely proposes to approve state 

law as meeting Federal requirements 

and does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this proposed 

action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule proposing to 

approve West Virginia’s redesignation 

requests, maintenance plans, and 

transportation conformity insignificance 

determinations for the 1997 annual and 

the 2006 24-hour PM2.5 NAAQS, and the 

2008 emissions inventory for the 2006 

24-hour PM2.5 NAAQS for the 

Charleston 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, Incorporation by 

reference, 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. 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
4138 Federal Register / Vol. 79, No. 16 / Friday, January 24, 2014 / Proposed Rules 

1See 47 CFR 76.111 (cable operators), 76.127 

(satellite providers), 76.128 (application of sports 

blackout rules), 76.1506(m) (open video systems). 

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

Dated: December 17, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2014–01181 Filed 1–23–14; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 12–3; FCC 13–162] 

Sports Blackout Rules 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission seeks comment on its 

proposal to eliminate the sports 

blackout rules. Elimination of the sports 

blackout rules alone likely would not 

end sports blackouts, but it would leave 

sports carriage issues to private 

solutions negotiated by the interested 

parties in light of current market 

conditions and eliminate unnecessary 

regulation. 

DATES: Comments for this proceeding 

are due on or before February 24, 2014; 

reply comments are due on or before 

March 25, 2014. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 12–3, by 

any of the following methods: 

D Federal Communications 

Commission’s Web site: http://

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

D Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although the Commission continues to 

experience delays in receiving U.S. 

Postal Service mail). All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

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 detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information, contact Kathy 

Berthot, Kathy.Berthot@fcc.gov, of the 

Media Bureau, Policy Division, (202) 

418–7454. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking, FCC 13–162, 

adopted on December 17, 2013 and 

released on December 18, 2013. The full 

text is available for public inspection 

and copying during regular business 

hours in the FCC Reference Center, 

Federal Communications Commission, 

445 12th Street SW., CY–A257, 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). Documents will 

be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat. The 

complete text may be purchased from 

the Commission’s copy contractor, 445 

12th Street, SW., Room CY–B402, 

Washington, DC 20554. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an email to 

fcc504@fcc.gov or call the Commission’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). 

This document contains no proposed 

information collection requirements. 

Summary of the Notice of Proposed 

Rulemaking 

I. Introduction 

1. In this Notice of Proposed 

Rulemaking, we propose to eliminate 

the Commission’s sports blackout rules, 

which prohibit certain multichannel 

video programming distributors 

(MVPDs) from retransmitting, within a 

protected local blackout zone, the signal 

of a distant broadcast station carrying a 

live sporting event if the event is not 

available live on a local television 

broadcast station.1 The sports blackout 

rules were originally adopted nearly 40 

years ago when game ticket sales were 

the main source of revenue for sports 

leagues. These rules were intended to 

address concerns that MVPDs’ 

importation of a distant signal carrying 

a blacked-out sports event could result 

in lost revenue from ticket sales, which 

might cause sports leagues to expand 

the reach of blackouts by refusing to sell 

their rights to sports events to all distant 

stations. The rationale underpinning the 

rules was to ensure to the greatest extent 

possible the continued availability of 

sports telecasts to the public. Changes in 

the sports industry in the last four 

decades have called into question 

whether the sports blackout rules 

remain necessary to ensure the overall 

availability of sports programming to 

the general public. In this proceeding, 

we will determine whether the sports 

blackout rules have become outdated 

due to marketplace changes since their 

adoption, and whether modification or 

elimination of those rules is 

appropriate. We recognize that 

elimination of our sports blackout rules 

alone might not end sports blackouts, 

but it would leave sports carriage issues 

to private solutions negotiated by the 

interested parties in light of current 

market conditions and eliminate 

unnecessary regulation. 

II. Background 

A. History of the Sports Blackout Rules 

2. Prior to 1953, National Football 

League (NFL) bylaws prohibited 

member teams from, among other 

things, (i) telecasting their games into 

the home territory of another team that 

was playing at home, and (ii) telecasting 

their games into the home territory of 

another team that was playing away 

from home and was telecasting its game 

into its home territory. In 1953, a federal 

court held that the NFL’s prohibition on 

the telecast of outside games into the 

home territory of a team that was 

playing at home was a reasonable 

method of protecting the home team’s 

gate receipts and was not illegal under 

the antitrust laws. The court found, 

however, that restricting the telecast of 

outside games into the home territory of 

a team not playing at home was an 

unreasonable restraint on trade because, 

when the home team was playing away, 

there was no gate to protect. 

3. In 1961, the NFL entered into an 

agreement with the CBS television 

network under which the NFL’s member 

teams pooled the television rights to 

their games and authorized the league to 

sell the rights to the network as a 

package, with the revenue from the 

league sales to be distributed equally 

among the member teams. Under this 

agreement, CBS was permitted to 

determine which games would be 

televised and where the games would be 

televised. The NFL then petitioned the 

court for a ruling on whether the terms 

of its contract with CBS violated the 

court’s 1953 final judgment. The court 

concluded that the provision giving CBS 

the power to determine which games 

would be televised and where was 

contrary to the final judgment and that 

execution and performance of the 

contract was therefore prohibited. This 

ruling did not, however, apply to a 

similar contract between the newly 

formed American Football League (AFL) 

and the ABC television network, 

because the AFL was not a party to the 

court’s 1953 final judgment. Concerned 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS