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• 18 AAC 50.220 ‘‘Enforceable Test 

Methods,’’ subparagraph (c)(2). 

• 18 AAC 50.326 ‘‘Title V Operating 

Permits, paragraph (e). 

• 18 AAC 50.345 ‘‘Construction and 

Operating Permits: Standard Permit 

Conditions,’’ paragraph (l). 

• 18 AAC 50.346 ‘‘Construction and 

operating permits: Other permit 

conditions,’’ paragraphs (a), (b) and (c). 

• 18 AAC 50.400 ‘‘Permit 

Administration Fees,’’ paragraph (a). 

• 18 AAC 50.542 ‘‘Minor Permit: 

Review and Issuance,’’ subparagraph 

(b)(2). 

• 18 AAC 50.546 ‘‘Minor Permits: 

Revisions,’’ paragraph (b). 

• AS 46.14.540 ‘‘Authority of 

Department in Cases of Emergency.’’ 

Provisions the EPA Is Removing From 

the SIP or From Incorporation by 

Reference 

Under the authority of CAA section 

110(k)(6), we are removing the following 

provisions from the SIP because they 

implement other requirements of the 

CAA and the State has not relied on 

these provisions to demonstrate 

attainment or maintenance of the 

NAAQS or to meet other specific 

requirements of section 110 of the CAA: 

18 AAC 50.220(c)(1)(A), (B), (C) and 18 

AAC 50.302(a)(3). We are also removing 

AS 46.14.510(b), which was 

incorporated by reference on November 

18, 1998 (63 FR 63983). However, we 

have determined that the provision is 

addressed by incorporation by reference 

elsewhere in the Federally-approved 

SIP. 

Provisions the EPA Is Taking No Action 

On 

Finally, as detailed above and in the 

TSD, we are taking no action on the 

following Alaska provisions: 18 AAC 

50.040 ‘‘Federal Standards Adopted by 

Reference’’ paragraph (i) (adoption by 

reference of Federal nonattainment NSR 

regulations at 40 CFR 51.165); 18 AAC 

50 Article 7 ‘‘Conformity;’’ and AS 

46.14.560 ‘‘Unavoidable Malfunctions 

and Emergencies.’’ We intend to address 

these changes in a separate action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (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 the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

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

this action does not involve technical 

standards; and 

• does not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and the EPA notes 

that it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, and 

Volatile organic compounds. 

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

Dated: April 23, 2014. 

Dennis J. McLerran, 

Regional Administrator Region 10. 

[FR Doc. 2014–10204 Filed 5–2–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R03–OAR–2013–0690; FRL–9910–36– 

Region–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia’s Redesignation Request and 

the Associated Maintenance Plan of 

the West Virginia Portion of the 

Martinsburg-Hagerstown, WV-MD 

Nonattainment Area for the 1997 

Annual Fine Particulate Matter 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

the State of West Virginia’s request to 

redesignate to attainment the West 

Virginia portion of the MartinsburgHagerstown, WV-MD nonattainment 

area (Martinsburg Area or Area) for the 

1997 annual fine particulate matter 

(PM2.5) national ambient air quality 

standard (NAAQS). EPA is also 

proposing to determine that the 

Martinsburg Area continues to attain the 

1997 annual PM2.5 NAAQS. In addition, 

EPA is proposing to approve as a 

revision to the West Virginia State 

Implementation Plan (SIP), the 

associated maintenance plan to show 

maintenance of the 1997 annual PM2.5

NAAQS through 2025 for the Area. The 

maintenance plan includes the 2017 and 

2025 PM2.5 and nitrogen oxides (NOX) 

mobile vehicle emissions budgets 

(MVEBs) for Berkeley County, West 

Virginia for the 1997 annual PM2.5

NAAQS which EPA is proposing to 

approve for transportation conformity 

purposes. Furthermore, EPA is 

proposing to approve as a revision to the 

West Virginia SIP, the 2007 base year 

emissions inventory for the Area for the 

1997 annual PM2.5 NAAQS. These 

actions are being taken under the Clean 

Air Act (CAA). 

DATES: Written comments must be 

received on or before June 4, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0690 by one of the 

following methods: 


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A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

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

C. Mail: EPA–R03–OAR–2013–0690, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

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

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2013– 

0690. 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. 

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 D.C. 

Circuit Court Decision Regarding EPA’s 

CSAPR 

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

Court Decision Regarding the PM2.5

Implementation Under Subpart 4 of Part 

D of Title I of the CAA 

V. EPA’s Analysis of West Virginia’s SIP 

Submittal 

A. Redesignation Request 

B. Maintenance Plan 

C. Transportation Conformity 

VI. Proposed Actions 

VII. Statutory and Executive Order Reviews 

I. Background 

The first air quality standards for 

PM2.5 were established on July 18, 1997 

(62 FR 38652). EPA promulgated an 

annual standard at a level of 15 

micrograms per cubic meter (mg/m3), 

based on a three-year average of annual 

mean PM2.5 concentrations (the 1997 

annual PM2.5 standard). In the same 

rulemaking, EPA promulgated a 24-hour 

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

hour concentrations. 

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

EPA published air quality area 

designations for the 1997 PM2.5 NAAQS. 

In that rulemaking action, EPA 

designated the Martinsburg Area as 

nonattainment for the 1997 annual 

PM2.5 NAAQS. The Martinsburg Area is 

comprised of Berkeley County in West 

Virginia (the West Virginia portion of 

the Area) and Washington County in 

Maryland. See 40 CFR 81.321 

(Maryland) and 40 CFR 81.349 (West 

Virginia). 

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 

Martinsburg Area as attainment for the 

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

58737 and 40 CFR 81.321 (Maryland) 

and also see 74 FR 58775 and 40 CFR 

81.349 (West Virginia). 

In response to legal challenges of the 

annual standard promulgated in 2006, 

the D.C. 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 Martinsburg 

Area is designated nonattainment for 

the annual NAAQS promulgated in 

1997, today’s proposed rulemaking 

action addresses the redesignation to 

attainment only for this standard. 

On November 20, 2009 (74 FR 60199), 

EPA determined that the Martinsburg 

Area had attained the 1997 annual PM2.5

NAAQS. Pursuant to 40 CFR 51.1004(c) 

and based on this determination, the 

requirements for the Martinsburg Area 

to submit an attainment demonstration 

and associated reasonably available 

control measures (RACM), a reasonable 

further progress (RFP) plan, contingency 

measures, and other planning SIP 

revisions related to the attainment of the 

1997 annual PM2.5 NAAQS were 

suspended until such time as: (1) The 

Area is redesignated to attainment for 

the standard, at which time the 

requirements no longer apply; or (2) 

EPA determines that the Area has again 

violated the standard, at which time 

such plans are required to be submitted. 

On January 20, 2012 (77 FR 1411), EPA 

also determined that the Martinsburg 

Area had attained the 1997 annual PM2.5

NAAQS by the applicable date of April 

5, 2010. 

On August 5, 2013, the State of West 

Virginia through the West Virginia 

Department of Environmental Protection 

(WVDEP) formally submitted a request 

to redesignate the West Virginia portion 

of the Martinsburg Area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. 

Concurrently, WVDEP submitted a 

maintenance plan for the Area as a SIP 

revision to ensure continued attainment 

throughout the Area over the next 10 


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years. The maintenance plan also 

includes a 2007 base year emissions 

inventory for PM2.5, NOX, sulfur dioxide 

(SO2), volatile organic compounds 

(VOC) and ammonia (NH3) for the1997 

annual PM2.5 NAAQS in order to meet 

the emissions inventory requirement of 

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

addition, the maintenance plan includes 

the 2017 and 2025 PM2.5 and NOX

MVEBs used for transportation 

conformity purposes for Berkeley 

County, West Virginia for the 1997 

annual PM2.5 NAAQS. 

In this proposed rulemaking action, 

EPA takes into account two decisions of 

the United States Court of Appeals for 

the District of Columbia (D.C. Circuit 

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

Circuit Court decisions, the D.C. 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 the Cross-State Air 

Pollution Control Rule (CSAPR) and 

ordered EPA to continue administering 

the Clean Air Interstate Rule (CAIR) 

‘‘pending . . . development of a valid 

replacement.’’ EME Homer City at 38. 

The D.C. Circuit 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 

D.C. Circuit Court remanded to EPA the 

‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

16, 2008). 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 

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. Each of these requirements are 

discussed in section V. of today’s 

proposed rulemaking action. 

EPA has provided guidance on 

redesignation in the ‘‘SIPs; General 

Preamble for the Implementation of 

Title I of the CAA Amendments of 

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

(the ‘‘General Preamble’’) and has 

provided further guidance on processing 

redesignation requests in the following 

documents: (1) ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, 

September 4, 1992 (hereafter referred to 

as the ‘‘1992 Calcagni Memorandum’’); 

(2) ‘‘SIP Actions Submitted in Response 

to CAA Deadlines,’’ Memorandum from 

John Calcagni, Director, Air Quality 

Management Division, October 28, 1992; 

and (3) ‘‘Part D New Source Review 

(Part D NSR) Requirements for Areas 

Requesting Redesignation to 

Attainment,’’ Memorandum from Mary 

D. Nichols, Assistant Administrator for 

Air and Radiation, October 14, 1994. 

B. Requirements of a Maintenance Plan 

Section 175A of the CAA sets forth 

the elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. Under 

section 175A of the CAA, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least 10 

years after 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 maintenance 

plan should address the following 

provisions: (1) An attainment emissions 

inventory; (2) a maintenance 

demonstration showing maintenance for 

10 years; (3) a commitment to maintain 

the existing monitoring network; (4) 

verification of continued attainment; 

and (5) a contingency plan to prevent or 

correct future violations of the NAAQS. 

Under the CAA, states are required to 

submit, at various times, control strategy 

SIP revisions and maintenance plans for 

nonattainment areas and for areas 

seeking redesignation to attainment for 

a given NAAQS. These emission control 

strategy SIP revisions (e.g., RFP and 

attainment demonstration SIP revisions) 

and maintenance plans create MVEBs 

based on onroad mobile source 

emissions for the relevant criteria 

pollutants and/or their precursors, 

where appropriate, to address pollution 

from onroad transportation sources. The 

MVEBs are the portions of the total 

allowable emissions that are allocated to 

onroad vehicle use that, together with 

emissions from all other sources in the 

area, will provide attainment, RFP, or 

maintenance, as applicable. The budget 

serves as a ceiling on emissions from an 

area’s planned transportation system. 

Under 40 CFR part 93, a MVEB for an 

area seeking a redesignation to 

attainment is established for the last 

year of the maintenance plan. 

The maintenance plan for the West 

Virginia portion of the Martinsburg 

Area, that comprises Berkeley County in 

West Virginia, includes the 2017 and 

2025 PM2.5 and NOX MVEBs for 

transportation conformity purposes. The 

transportation conformity determination 

for the Area is further discussed in 

section V.C. of today’s proposed 

rulemaking action and a technical 

support document (TSD) dated January 

28, 2014, available on line at 

www.regulations.gov, Docket ID No. 

EPA–OAR–R03–2013–0690. 

III. Summary of Proposed Actions 

EPA is proposing to take several 

rulemaking actions related to the 

redesignation of the West Virginia 

portion of the Martinsburg Area to 

attainment for the 1997 annual PM2.5

NAAQS. EPA is proposing to find that 

the Area meets the requirements for 

redesignation for the 1997 annual PM2.5

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

the CAA. EPA is thus proposing to 

approve West Virginia’s request to 

change the legal definition for the West 

Virginia portion of the Martinsburg Area 

from nonattainment to attainment for 

the 1997 annual PM2.5 NAAQS. This 

action does not impact the legal 

definition of the Maryland portion of 


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the Area. EPA is taking separate action 

to redesignate the Maryland portion. 

EPA is also proposing to approve the 

associated maintenance plan for the 

West Virginia portion of the 

Martinsburg Area as a revision to the 

West Virginia SIP for the 1997 annual 

PM2.5 NAAQS, including the 2017 and 

2025 PM2.5 and NOX MVEBs of the Area. 

The approval of the maintenance plan is 

one of the CAA criteria for redesignation 

of the Area to attainment for the 1997 

annual PM2.5 NAAQS. West Virginia’s 

maintenance plan is designed to ensure 

continued attainment in the West 

Virginia portion of the Martinsburg Area 

for 10 years after redesignation for the 

1997 annual PM2.5 NAAQS. 

EPA previously determined that the 

Martinsburg Area has attained the 1997 

annual PM2.5 NAAQS. Therefore, EPA is 

proposing to find that the Area 

continues to attain the standard. See 74 

FR 60199, November 20, 2009 and 77 

FR 1411, January 10, 2012. EPA is also 

proposing to approve the 2007 

comprehensive emissions inventory that 

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

NH3 for the West Virginia portion of the 

Area as a revision to the West Virginia 

SIP for the 1997 annual PM2.5 NAAQS 

in order to meet the requirements of 

section 172(c)(3) of the CAA. EPA’s 

analysis of the proposed actions is 

provided in section V. of today’s 

proposed rulemaking action. 

IV. Effects of Recent Court Decisions on 

Proposed Actions 

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

Circuit Court Decision Regarding EPA’s 

CSAPR 

1. Background 

EPA 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 (EGUs) to 

limit the interstate transport of these 

pollutants and the ozone and fine 

particulate matter they form in the 

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

Circuit 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 D.C. 

Circuit Court issued an order addressing 

the status of CSAPR and CAIR in 

response to motions filed by numerous 

parties seeking a stay of CSAPR pending 

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

Circuit Court stayed CSAPR pending 

resolution of the petitions for review of 

that rule in EME Homer City Generation, 

L.P. v. EPA (No. 11–1302 and 

consolidated cases). The D.C. Circuit 

Court also indicated that EPA was 

expected to continue to administer 

CAIR in the interim until judicial 

review of CSAPR was completed. 

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

Court issued 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 (D.C. Circ. 2012). The D.C. 

Circuit Court denied all petitions for 

rehearing on January 24, 2013. EPA and 

other parties have filed petitions for 

certiorari to the U.S. Supreme Court. 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 

redesignation request and the related 

SIP revisions for the West Virginia 

portion of the Martinsburg Area 

(Berkeley County, West Virginia), 

including West Virginia’s plan for 

maintaining attainment of the 1997 

annual PM2.5 NAAQS in the Area. 

As directed by the D.C. 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 Martinsburg Area monitored 

attainment of the 1997 annual PM2.5

NAAQS. The quality-assured, qualitycontrolled, certified monitoring data 

used to demonstrate the Area’s 

attainment of the 1997 annual 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 D.C. 

Circuit Court in EME Homer City 

ensures that the reductions associated 

with CAIR will be permanent and 

enforceable for the necessary time 

period. EPA has been ordered by the 

D.C. Circuit Court to develop a new rule 

to address interstate transport to replace 

CSAPR, and the opinion makes clear 

that after promulgating that new rule, 

EPA must provide states an opportunity 

to draft and submit SIPs to implement 

that rule. Thus, CAIR will remain in 

place until: (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 D.C. 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 

D.C. 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 D.C. Circuit Court 

emphasized that the consequences of 

vacating CAIR ‘‘might be more severe 

now in light of the reliance interests 

accumulated over the intervening four 

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

The accumulated reliance interests 

include the interests of states 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 D.C. Circuit 

Court sought to avoid by ordering EPA 

to continue administering CAIR. For 

these reasons also, EPA believes it is 

appropriate to allow states to rely on 

CAIR, and the existing emissions 

reductions achieved by CAIR, as 

sufficiently permanent and enforceable 

for 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. 


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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. 

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

Circuit Court Decision Regarding PM2.5

Implementation Under Subpart 4 of Part 

D of Title I of the CAA 

1. Background 

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

the D.C. Circuit Court remanded to EPA 

the ‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the NSR Program 

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

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’). 706 F.3d 428 

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

found that EPA erred in implementing 

the 1997 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). 

Prior to the January 4, 2013 decision, 

the states had worked towards meeting 

the air quality goals of the 1997 PM2.5

NAAQS in accordance with EPA 

regulations and guidance derived from 

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

Subsequent to this decision, EPA took 

this history into account and responded 

to the D.C. Circuit Court’s remand by 

proposing to set a new deadline for any 

remaining submissions that may be 

required for a moderate nonattainment 

area that are due to the applicability of 

subpart 4 of Part D of Title I of the CAA. 

On November 21, 2013 (78 FR 69806), 

EPA issued a proposed rule, 

Identification of Nonattainment 

Classification and Deadlines for 

Submission of SIP Provisions for the 

1997 PM2.5 NAAQS (the PM2.5 Subpart 

4 Classification and Deadline Rule) 

identifying the classification under 

subpart 4 for areas currently designated 

nonattainment for the 1997 PM2.5

standards, the deadlines for states to 

submit NSR and attainment-related SIP 

elements required for these areas 

pursuant to subpart 4, and the EPA 

guidance that is currently available 

regarding subpart 4 requirements. If 

finalized, this rule will set a deadline 

for states to submit attainment plans 

and meet other subpart 4 requirements. 

The proposed rule identified December 

31, 2014 as the deadline for the states 

to submit any additional attainmentrelated SIP elements that may be needed 

to meet the applicable requirements of 

subpart 4 for areas currently designated 

nonattainment for the 1997 PM2.5

NAAQS and to submit SIPs addressing 

the nonattainment NSR requirements in 

subpart 4. Since West Virginia 

submitted a request to redesignate the 

West Virginia portion of the 

Martinsburg Area from nonattainment to 

attainment on August 5, 2013 and the 

proposed PM2.5 Subpart 4 Classification 

and Deadline Rule identifies a 

December 31, 2014 deadline, West 

Virginia is not required at this time to 

meet the applicable requirements of 

subpart 4. 

2. Proposal on This Issue 

EPA is proposing to determine that 

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

decision does not prevent EPA from 

redesignating the West Virginia portion 

of the Martinsburg Area to attainment 

for the 1997 annual PM2.5 NAAQS. Even 

in light of the D.C. Circuit Court’s 

decision, redesignation for this Area is 

appropriate under the CAA and EPA’s 

longstanding interpretations of the 

CAA’s provisions regarding 

redesignation. EPA first explains its 

longstanding interpretation that 

requirements that are imposed, or that 

become due, after a complete 

redesignation request is submitted for 

an area that is attaining the standard, are 

not applicable for purposes of 

evaluating a redesignation request. 

Second, EPA then shows that, even if 

EPA applies the subpart 4 requirements 

to the West Virginia redesignation 

request and disregards the provisions of 

its 1997 PM2.5 Implementation Rule 

recently remanded by the D.C. Circuit 

Court, the State’s request for 

redesignation of the Area still qualifies 

for approval. EPA’s discussion takes 

into account the effect of the D.C. 

Circuit Court’s ruling and EPA’s 

proposed PM2.5 Subpart 4 Classification 

and Deadline Rule on the Area’s 

maintenance plan, which EPA views as 

approvable when subpart 4 

requirements are considered. 

a. Applicable Requirements for 

Purposes of Evaluating the 

Redesignation Request 

With respect to the 1997 PM2.5

Implementation Rule, the D.C. Circuit 

Court’s January 4, 2013 ruling rejected 

EPA’s reasons for implementing the 

PM2.5 NAAQS solely in accordance with 

the provisions of subpart 1, and 

remanded that matter to EPA, so that it 

could address implementation of the 

1997 annual PM2.5 NAAQS under 

subpart 4 of Part D of the CAA, in 

addition to subpart 1. For the purposes 

of evaluating West Virginia’s 

redesignation request for the West 

Virginia portion of the Martinsburg 

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 West Virginia 

portion of the Martinsburg 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 ‘‘SIP 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) NAAQS on or after 

November 15, 1992,’’ Memorandum 

from Michael Shapiro, Acting Assistant 

Administrator, Air and Radiation, 

September 17, 1993 (Shapiro 

memorandum); Final Redesignation of 

Detroit-Ann Arbor, (60 FR 12459, 

12465–66, March 7, 1995); Final 

Redesignation of St. Louis, Missouri, (68 

FR 25418, 25424–27, May 12, 2003); 

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

(7th Cir. 2004) (upholding EPA’s 

redesignation rulemaking applying this 

interpretation and expressly rejecting 

Sierra Club’s view that the meaning of 

‘‘applicable’’ under the statute is 

‘‘whatever should have been in the plan 

at the time of attainment rather than 

whatever actually was in the plan and 

already implemented or due at the time 

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

that West Virginia submitted its 

redesignation request for the 1997 PM2.5

NAAQS, the requirements under 

subpart 4 were not due. 

EPA’s view that, for purposes of 

evaluating the redesignation of the West 

Virginia portion of the Martinsburg 

Area, the subpart 4 requirements were 

not due at the time West Virginia 

submitted the redesignation request is 

in keeping with the EPA’s interpretation 

of subpart 2 requirements for subpart 1 

ozone areas redesignated subsequent to 

the D.C. Circuit Court’s decision in 

South Coast Air Quality Mgmt. Dist. v. 

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

South Coast, the D.C. Circuit Court 

found that EPA was not permitted to 

implement the 1997 8-hour ozone 

standard solely under subpart 1, and 

held that EPA was required under the 

statute to implement the standard under 

the ozone-specific requirements of 

subpart 2 as well. Subsequent to the 


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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). 

3PM10 refers to particulates nominally 10 

micrometers in diameter or smaller. 

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 and EPA’s November 21, 

2013 proposed PM2.5 Subpart 4 

Classification and Deadline Rule, 

compound the consequences of 

imposing requirements that come due 

after the redesignation request is 

submitted. West Virginia submitted its 

redesignation request for the 1997 

annual PM2.5 NAAQS on August 5, 2013 

for the West Virginia portion of the 

Martinsburg Area, which is prior to the 

deadline by which the Area is required 

to meet the applicable requirements 

pursuant to subpart 4. 

To require West Virginia’s fullycompleted and pending redesignation 

request for the 1997 annual PM2.5

NAAQS to comply now with 

requirements of subpart 4 that the D.C. 

Circuit Court announced only in 

January 2013 and for which the 

deadline to comply has not yet come, 

would be to give retroactive effect to 

such requirements and provide West 

Virginia a unique and earlier deadline 

for compliance solely on the basis of 

submitting a redesignation request for 

the West Virginia portion of the 

Martinsburg Area. The D.C. Circuit 

Court recognized the inequity of this 

type of retroactive impact in Sierra Club 

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

2002),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 the 1997 annual PM2.5

NAAQS and that met all applicable 

requirements known to be in effect at 

the time of the requests. For EPA now 

to reject the redesignation request solely 

because West Virginia did not expressly 

address subpart 4 requirements which 

have not yet come due and for which it 

had little to 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 Request 

Even if EPA were to take the view that 

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

decision requires that, in the context of 

pending redesignations for the 1997 

annual PM2.5 NAAQS, subpart 4 

requirements were due and in effect at 

the time West Virginia submitted its 

redesignation request, EPA proposes to 

determine that the West Virginia portion 

of the Martinsburg Area still qualifies 

for redesignation to attainment for the 

1997 annual PM2.5 NAAQS. As 

explained subsequently, EPA believes 

that the redesignation request for the 

West Virginia portion of the 

Martinsburg Area, though not expressed 

in terms of subpart 4 requirements, 

substantively meets the requirements of 

that subpart for purposes of 

redesignating the Area to attainment for 

the 1997 annual PM2.5 NAAQS. 

With respect to evaluating the 

relevant substantive requirements of 

subpart 4 for purposes of redesignating 

the West Virginia portion of the 

Martinsburg 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 


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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 Court’s January 4, 2013 

decision should be interpreted so as to impose these 

requirements on the states retroactively. Sierra Club 

v. Whitman, supra. 

requirements also apply for PM2.5

nonattainment areas. EPA has 

longstanding general guidance that 

interprets the 1990 amendments to the 

CAA, making recommendations to states 

for meeting the statutory requirements 

for SIPs for nonattainment areas. See, 

the General Preamble. In the General 

Preamble, EPA discussed the 

relationship of subpart 1 and subpart 4 

SIP requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM10

requirements’’ (57 FR 13538, April 16, 

1992). The subpart 1 requirements 

include, among other things, provisions 

for attainment demonstrations, RACM, 

RFP, emissions inventories, and 

contingency measures. 

For the purposes of this redesignation 

request, in order to identify any 

additional requirements which would 

apply under subpart 4, consistent with 

EPA’s November 21, 2013 proposed 

PM2.5 Subpart 4 Classification and 

Deadline Rule, EPA is considering the 

Martinsburg Area to be a ‘‘moderate’’ 

PM2.5 nonattainment area. As EPA 

explained in its November 21, 2013 

proposed rule, section 188 of the CAA 

provides that all areas designated 

nonattainment areas under subpart 4 are 

initially classified by operation of law as 

‘‘moderate’’ nonattainment areas, and 

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 NSR program is not 

considered an applicable requirement 

for redesignation, provided the area can 

maintain the standard with a prevention 

of significant deterioration (PSD) 

program after redesignation. A detailed 

rationale for this view is described in a 

memorandum from Mary Nichols, 

Assistant Administrator for Air and 

Radiation, dated October 14, 1994, 

entitled, ‘‘Part D NSR Requirements for 

Areas Requesting Redesignation to 

Attainment.’’ See also rulemakings for 

Detroit, Michigan (60 FR 12467–12468, 

March 7, 1995); Cleveland-AkronLorain, 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 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 or 

prior to December 13, 2014 and thus, 

were due prior to West Virginia’s 

redesignation request, those 

requirements do not apply to an area 

that is attaining the 1997 annual PM2.5

NAAQS, for the purpose of evaluating a 

pending request to redesignate the area 

to attainment. EPA has consistently 

enunciated this interpretation of 

applicable requirements under section 

107(d)(3)(E) since the General Preamble 

was published more than twenty years 

ago. Courts have recognized the scope of 

EPA’s authority to interpret ‘‘applicable 

requirements’’ in the redesignation 

context. See Sierra Club v. EPA, 375 

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

Moreover, even outside the context of 

redesignations, EPA has viewed the 

obligations to submit attainment-related 

SIP planning requirements of subpart 4 

as inapplicable for areas that EPA 

determines are attaining the1997 annual 

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 

Martinsburg Area has attained the 1997 

annual PM2.5 NAAQS. Under its 

longstanding interpretation, EPA is 

proposing to determine here that the 

West Virginia portion of the Area meets 

the attainment-related plan 

requirements of subparts 1 and 4 for the 

1997 annual PM2.5 NAAQS. Thus, EPA 


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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. 

8The Martinsburg 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. 

is proposing to conclude that the 

requirements to submit an attainment 

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

RACM determination under section 

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

demonstration under 189(c)(1), and 

contingency measure requirements 

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

purposes of evaluating this 

redesignation request. 

c. Subpart 4 and Control of PM2.5

Precursors 

The D.C. Circuit Court in NRDC v. 

EPA remanded to EPA the two rules at 

issue in the case with instructions to 

EPA to re-promulgate them consistent 

with the requirements of subpart 4. EPA 

in this section addresses the D.C. Circuit 

Court’s opinion with respect to PM2.5

precursors. While past implementation 

of subpart 4 for PM10 has allowed for 

control of PM10 precursors such as NOX

from major stationary, mobile, and area 

sources in order to attain the standard 

as expeditiously as practicable, section 

189(e) of the CAA specifically provides 

that control requirements for major 

stationary sources of direct PM10 shall 

also apply to PM10 precursors from 

those sources, except where EPA 

determines that major stationary sources 

of such precursors ‘‘do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ 

EPA’s 1997 PM2.5 Implementation 

Rule, remanded by the D.C. Circuit 

Court, contained rebuttable 

presumptions concerning certain PM2.5

precursors applicable to attainment 

plans and control measures related to 

those plans. Specifically, in 40 CFR 

51.1002, EPA provided, among other 

things, that a state was ‘‘not required to 

address VOC [and 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 redesignation of the 

West Virginia portion of the 

Martinsburg Area for the 1997 annual 

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, the regulatory 

consequence would be to consider the 

need for regulation of all precursors 

from any sources in the Area to 

demonstrate attainment and to apply the 

section 189(e) provisions to major 

stationary sources of precursors. In the 

case of the West Virginia portion of the 

Martinsburg Area, EPA believes that 

doing so is consistent with proposing 

redesignation of the West Virginia 

portion of the Area for the 1997 annual 

PM2.5 NAAQS. The West Virginia 

portion of the Area has attained the 

1997 annual 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 

PM2.5 NAAQS. As explained 

subsequently, we do not believe that 

any additional controls of NH3 and VOC 

are required in the context of this 

redesignation. 

In the General Preamble, EPA 

discusses its approach to implementing 

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

With regard to precursor regulation 

under section 189(e), the General 

Preamble explicitly stated that control 

of VOC under other CAA requirements 

may suffice to relieve a state from the 

need to adopt precursor controls under 

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

this rulemaking action, proposes to 

determine that West Virginia’s SIP has 

met the provisions of section 189(e) 

with respect to NH3 and VOC as 

precursors. This proposed 

determination is based on our findings 

that: (1) The Martinsburg Area contains 

no major stationary sources of NH3, and 

(2) existing major stationary sources of 

VOC are adequately controlled under 

other provisions of the CAA regulating 

the ozone NAAQS.8 In the alternative, 

EPA proposes to determine that, under 

the express exception provisions of 

section 189(e), and in the context of the 

redesignation of the West Virginia 

portion of the Martinsburg Area, which 

is attaining the 1997 annual PM2.5

NAAQS, at present NH3 and VOC 

precursors from major stationary 

sources do not contribute significantly 

to levels exceeding the 1997 annual 

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 PM2.5

NAAQS. By contrast, redesignation to 

attainment primarily requires the 

nonattainment area to have already 


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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). 

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 Martinsburg 

Area has already attained the 1997 

annual PM2.5 NAAQS with its current 

approach to regulation of PM2.5

precursors, EPA believes that it is 

reasonable to conclude in the context of 

this redesignation that there is no need 

to revisit the attainment control strategy 

with respect to the treatment of 

precursors. Even if the D.C. Circuit 

Court’s decision is construed to impose 

an obligation, in evaluating this 

redesignation request, to consider 

additional precursors under subpart 4, it 

would not affect EPA’s approval here of 

West Virginia’s request for redesignation 

of the Martinsburg Area for the 1997 

annual PM2.5 NAAQS. In the context of 

a redesignation, the Area has shown that 

it has attained the standards. Moreover, 

West Virginia has shown and EPA has 

proposed to determine that attainment 

of the 1997 annual 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 West Virginia 

portion of the Martinsburg Area to 

attainment for the 1997 annual PM2.5

NAAQS at this time. 

In summary, even if, prior to the date 

of the redesignation request submittal, 

West Virginia was required to address 

precursors for the Martinsburg 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 

West Virginia portion of the 

Martinsburg 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 

SIP Submittal 

EPA is proposing several rulemaking 

actions for the West Virginia portion of 

the Martinsburg Area: (1) To redesignate 

the Area to attainment for the 1997 

annual PM2.5 NAAQS; (2) to approve 

into the West Virginia SIP, the 

associated maintenance plan for the 

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

approve the 2007 comprehensive 

emissions inventory into the West 

Virginia SIP to satisfy section 172(c)(3) 

of the CAA requirement for the Area, 

one of the criteria for redesignation. 

EPA’s proposed approvals of the 

redesignation request and maintenance 

plan for the 1997 annual PM2.5 NAAQS 

are based upon EPA’s determination 

that the Area continues to attain the 

1997 annual PM2.5 NAAQS, which EPA 

is proposing in this rulemaking action, 

and that all other redesignation criteria 

have been met for the West Virginia 

portion of the Area. In addition, EPA is 

proposing to approve the 2017 and 2025 

MVEBs for Berkeley County, West 

Virginia for transportation conformity 

purposes. The following is a description 

of how the West Virginia’s August 5, 

2013 submittal satisfies the 

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

the CAA for the 1997 annual PM2.5

NAAQS. 

A. Redesignation Request 

1. Attainment 

As noted previously, in the final 

rulemaking action dated January 10, 

2012 (77 FR 1411), EPA determined that 

the entire Martinsburg Area had 

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 20, 2009 (74 FR 

60199), EPA determined that the 

Martinsburg Area had clean data for the 

1997 annual 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 1997 annual PM2.5 NAAQS based 

on the 2006–2008 data and data 

available to date for 2012 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 

rulemaking for EPA’s determination of 

attainment for this Area, published on 

September 29, 2009 (74 FR 49833) for 

the 1997 annual PM2.5 NAAQS. 

EPA has reviewed the ambient air 

quality PM2.5 monitoring data in the 

Martinsburg 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 Martinsburg 

Area continues to attain the 1997 annual 

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 

Martinsburg Area continues to attain the 

1997 PM2.5 NAAQS. 


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TABLE 1—DESIGN VALUES FOR THE MARTINSBURG AREA FOR THE 1997 ANNUAL PM2.5 NAAQS FOR 2008–2010, 2009– 

2011 AND 2010–2012 MONITORING PERIODS

[In μg/m3] 

Monitor ID 

Annual design values 

2008–2010 2009–2011 2010–2012 

54–003–0003 ............................................................................................................................... 12.9 11.8 11.6 

24–043–0009 ............................................................................................................................... 11.0 10.9 11.0 

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 PM2.5

NAAQS for the West Virginia portion of 

the Martinsburg 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, the section 110(a)(2)(D) 

requirements for a state are not linked 

with a particular nonattainment area’s 

designation and classification in that 

state. EPA believes that the 

requirements linked with a particular 

nonattainment area’s designation and 

classifications are the relevant measures 

to evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a state regardless of 

the designation of any one particular 

area in the state. Thus, EPA does not 

believe that these requirements are 

applicable requirements for purposes of 

redesignation. 

In addition, EPA believes that the 

other 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 Martinsburg Area 

will still be subject to these 

requirements after it is redesignated. 

EPA concludes that section 110(a)(2) of 

the CAA and part D requirements which 

are linked with a particular area’s 

designation and classification are the 

relevant measures to evaluate in 

reviewing a redesignation request, and 

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

CAA not linked 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 Martinsburg 

Area. Therefore, EPA believes that these 

SIP elements are not applicable 

requirements for purposes of review of 

West Virginia’s PM2.5 redesignation 

request. 

b. Subpart 4 Requirements 

Subpart 1 sets forth the basic 

nonattainment plan requirements 

applicable to PM2.5 nonattainment areas. 

Under section 172 of the CAA, states 

with nonattainment areas must submit 

plans providing for timely attainment 

and meet a variety of other 

requirements. 

The General Preamble for 

Implementation of Title I discusses the 

evaluation of these requirements in the 

context of EPA’s consideration of a 

redesignation request. The General 

Preamble sets forth EPA’s view of 

applicable requirements for purposes of 

evaluating redesignation requests when 

an area is attaining the standard. See 57 

FR 13498 (April 16, 1992). 

As noted previously, EPA has 

determined that the Martinsburg Area 

has attained the 1997 annual PM2.5

NAAQS. Pursuant to 40 CFR 51.2004(c), 

the requirement for West Virginia to 

submit for the West Virginia portion of 

the Martinsburg Area an attainment 

demonstration and associated RACM, an 

RFP plan, contingency measures, and 

other planning SIPs related to the 

attainment of the 1997 annual PM2.5

NAAQS are suspended until the Area is 

redesignated to attainment for the 

standard, or EPA determines that the 

Area again violated the standard, at 

which time such plans are required to 


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be submitted. Since the Area has 

reached attainment for the 1997 annual 

PM2.5 NAAQS and continues to attain 

the standard, no additional measures are 

needed to provide for attainment. 

Therefore, the requirements of sections 

172(c)(1), 172(c)(2), 172(c)(6), and 

172(c)(9) of the CAA are no longer 

considered to be applicable for purposes 

of redesignation of the Area for the 1997 

annual PM2.5 NAAQS. 

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 determination of 

attainment of the Area for the 1997 

annual PM2.5 NAAQS, in which certain 

planning requirements were suspended 

for the standard, 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 August 

5, 2013 submittal, the State submitted a 

2007 base year emissions inventory for 

the West Virginia portion of the 

Martinsburg Area for the 1997 annual 

PM2.5 NAAQS 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. 

In this rulemaking action, EPA is 

proposing to approve West Virginia’s 

2007 base year emissions inventory in 

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

CAA. Final approval of the 2007 base 

year emissions inventory will satisfy the 

emissions inventory requirement under 

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

information on the evaluation and 

EPA’s analysis of the 2007 base year 

emissions inventory, see Appendix B of 

the State submittal and the emissions 

inventory technical support document 

(TSD) dated January 14, 2014, available 

on line at www.regulations.gov, Docket 

ID No. EPA–OAR–R03–2013–0690. A 

summary of the 2007 base year 

emissions inventory is shown in 

Table 2. 

TABLE 2—SUMMARY OF THE 2007 BASE YEAR EMISSIONS INVENTORY, BERKELEY COUNTY, WEST VIRGINIA IN TONS PER

YEAR

[tpy] 

SO2 NOX PM2.5 VOC NH3

Point ..................................................................................... 1,444 1,967 277 231 91 

Area ...................................................................................... 300 121 677 1,386 173 

Locomotive & Marine (LM) .................................................. 34 943 32 63 0.42 

Nonroad ............................................................................... 26 437 41 389 0.41 

Fire ....................................................................................... 0.02 0.07 0.22 0.13 0.01 

Onroad ................................................................................. 30 5,005 176 1,378 52 

Total .............................................................................. 2,462 8,473 1,154 3,447 317 

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 NSR Requirements for 

Areas Requesting Redesignation to 

Attainment.’’ Nevertheless, West 

Virginia currently has an approved NSR 

program, codified in 45 CSR 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 

Martinsburg 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 West 

Virginia portion of the Martinsburg Area 

to attainment status, West Virginia 

submitted SIP revisions to provide for 

maintenance of the 1997 annual PM2.5

NAAQS in the 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 

plan for the West Virginia portion of the 

Martinsburg Area will ensure that the 

SIP for West Virginia meets the 

requirements of the CAA regarding 

maintenance of the 1997 annual PM2.5

NAAQS for the Area. EPA’s analysis of 

the maintenance plan is provided in 

section V.B. of today’s proposed 

rulemaking action. 

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) 


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(upholding this interpretation). See also 

60 FR 62748 (December 7, 1995) 

(discussing Tampa, Florida). 

Thus, for purposes of redesignating to 

attainment the Martinsburg 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 2007 comprehensive emissions 

inventory as proposed in this 

rulemaking action, the Martinsburg 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 1997 

annual PM2.5 NAAQS. 

c. The West Virginia Portion of the 

Martinsburg 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 2007 

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 1997 

annual PM2.5 NAAQS in accordance 

with section 110(k) of the CAA. 

3. Permanent and Enforceable 

Reductions in Emissions 

For redesignating a nonattainment 

area to attainment, section 

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

EPA to determine that the air quality 

improvement in the area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP and 

applicable Federal air pollution control 

regulations and other permanent and 

enforceable reductions. 

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 2007, one of the 

years the Area monitored attainment as 

provided in Table 3. Sectors included in 

Table 3 are point, including airports; 

area; locomotive and marine (LM); 

nonroad; fire; and onroad. There are no 

EGUs located in Berkeley County. The 

reduction in emissions and the 

corresponding improvement in air 

quality from 2005 to 2007 in the 

Martinsburg Area can be attributed to a 

number of regulatory control measures 

that have been implemented in the Area 

and contributing areas in recent years. 

For more information on EPA’s analysis 

of the 2005 and 2007 emissions 

inventory, see EPA’s emissions 

inventory TSD dated January 14, 2014, 

available in the docket for this 

rulemaking action at 

www.regulations.gov. Docket ID No. 

EPA–OAR–RO3–2013–0690. 

TABLE 3—COMPARISON OF 2005 NONATTAINMENT YEAR AND 2007 ATTAINMENT YEAR REDUCTIONS IN TPY IN THE

MARTINSBURG AREA

Sector 2005 2007 Decrease 

PM2.5 ....................................... Point ........................................................................................ 361 227 134 

Area ........................................................................................ 1,430 677 753 

LM ........................................................................................... 25 32 -7 

Nonroad .................................................................................. 45 41 4 

Fire .......................................................................................... 0.00 0.22 ¥0.22 

Onroad .................................................................................... 199 176 23 

Total ........................................................................................ 2,059 1,154 905 

NOX ........................................ Point ........................................................................................ 3,402 1,967 1,435 

Area ........................................................................................ 636 121 515 

LM ........................................................................................... 849 943 ¥94 

Nonroad .................................................................................. 469 437 32 

Fire .......................................................................................... 0.00 0.07 ¥0.07 

Onroad .................................................................................... 5,520 5,005 515 

Total ........................................................................................ 10,875 8,473 2,402 

SO2 ......................................... Point ........................................................................................ 1,978 1,444 534 

Area ........................................................................................ 575 300 275 

LM ........................................................................................... 51 34 17 

Nonroad .................................................................................. 49 26 23 

Fire .......................................................................................... 0.00 0.02 ¥0.02 

Onroad .................................................................................... 109 30 79 

Total ........................................................................................ 2,762 1,834 928 

VOC ........................................ Point ........................................................................................ 298 231 67 

Area ........................................................................................ 2,505 1,386 1,119 

LM ........................................................................................... 52 63 ¥11 

Nonroad .................................................................................. 404 389 15 

Fire .......................................................................................... 0.00 0.13 ¥0.13 

Onroad .................................................................................... 1,473 1,378 95 

Total ........................................................................................ 4,732 3,447 1,285 

NH3 ......................................... Point ........................................................................................ 67 91 ¥24 

Area ........................................................................................ 198 173 25 

LM ........................................................................................... 0.35 0.42 ¥0.07 

Nonroad .................................................................................. 0.39 0.41 ¥0.02 

Fire .......................................................................................... 0.00 0.01 ¥0.01 

Onroad .................................................................................... 52 52 0 

Total ........................................................................................ 318 317 1 


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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. 

As required by the CAA, EPA 

developed Maximum Available Control 

Technology (MACT) Standards to 

regulate emissions of toxic air pollutants 

from a published list of industrial 

sources referred to as ‘‘source 

categories.’’ The list of MACT source 

categories that must meet control 

technology requirements to reduce the 

emission of toxic air pollutants with 

compliance dates on or after 2005, is 

found in the West Virginia’s August 5, 

2013 submittal on page 48, available on 

line at www.regulations.gov, Docket ID 

No. EPA–OAR–R03–2013–0690. 

b. State and Local Measures 

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 plan for the Area for the 

1997 annual PM2.5 NAAQS, thus, list 

CAIR as a control measure for the 

purpose of reducing SO2 and NOX

emissions. 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 Martinsburg Area monitored 

attainment of the 1997 annual PM2.5

NAAQS. The monitoring data used to 

demonstrate the Area’s attainment of the 

1997 annual PM2.5 NAAQS was 

impacted by CAIR. EPA finds West 

Virginia appropriately included CAIR as 

a control measure in this SIP revision. 

Furthermore, the air quality modeling 

analysis conducted for the Transport 

Rule demonstrates that the Area would 

be able to attain the 1997 annual PM2.5

NAAQS even in the absence of either 

CAIR or the Transport Rule. EPA’s 

modeling projections show that all 

ambient monitors in the Area are 

expected to continue to maintain 

compliance in the 2012 and 2014 ‘‘no 

CAIR’’ base cases. Therefore, none of the 

ambient monitoring sites in the Area are 

‘‘receptors’’ that EPA projects will have 

future nonattainment problems or 

difficulty maintaining the NAAQS. 

Based on the information summarized 

above, West Virginia has adequately 

demonstrated that the improvement in 

air quality is due to permanent and 

enforceable emissions reductions. The 

reductions result from Federal 

requirements, regulation of precursors 

under the NOX SIP Call, and CAIR, 

which are expected to continue into the 

future. 

B. Maintenance Plan 

On August 5, 2013, WVDEP submitted 

a maintenance plan for the West 

Virginia portion of the Martinsburg Area 

for the 1997 annual PM2.5 NAAQS as 

required by section 175A of the CAA. 

EPA’s analysis for proposing approval of 

the maintenance plan is 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, PM2.5, 

SO2, VOC, and NH3 for 2007, one of the 

years in the period during which the 

Martinsburg Area monitored attainment 

of the 1997 annual PM2.5 standard, as 

described previously. 

WVDEP used the 2007 annual 

emissions inventory submitted to EPA’s 

National Emissions Inventory (NEI) 

database to compile their inventory. 

There are no EGU’s in Berkeley County. 

For the 2007 area source emissions, 

WDEP used the Southern Modeling, 

Analysis, and Planning (SEMAP) 

project. 


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For the 2007 nonroad mobile sources, 

WVDEP generated the emissions using 

EPA’s NONROAD model. The 2007 

onroad mobile source inventory was 

developed using the most current 

version of EPA’s highway mobile source 

emissions model MOVES2010a. 

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 2007 emissions inventory, see 

Appendix B of the State submittal and 

the emissions inventory TSD dated 

January 14, 2014, available on line at 

www.regulations.gov, Docket ID No. 

EPA–OAR–R03–2013–0690. 

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 2017 

and a maintenance plan end year of 

2025 to show that future emissions of 

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

remain at or below the attainment year 

2007 emissions levels throughout the 

Martinsburg Area through the year 2025. 

The projection inventories for the 

2017 and 2025 point, area, and nonroad 

sources were developed by the SEMAP 

contractors. Detailed discussion of how 

projections were developed are 

contained in the document ‘‘SESARM 

Projection Year Final Report_Rev Jan 20 

2013.pdf.’’ Onroad mobile source 

projection inventories for Berkeley 

County were prepared by Michael Baker 

Jr., Inc. and onroad mobile source 

emissions for 2017 and 2025 were 

calculated from emission factors from 

MOVES2010 model runs. See Appendix 

C of the State submittal. EPA has 

reviewed the documentation provided 

by WVDEP and found the 

methodologies acceptable. 

EPA has determined that the 

emissions inventories that the 2017 and 

2025 projected emissions inventories 

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 January 14, 2014, available on line 

at www.regulations.gov., Docket ID No. 

EPA–OAR–R03–2013–0690. Table 4 

provides the inventories for the 2007 

attainment year, the 2017 interim year, 

and the 2025 maintenance plan end year 

for the Area. 

TABLE 4—COMPARISON OF 2007 ATTAINMENT YEAR AND 2017 AND 2025 PROJECTED EMISSION ESTIMATES FOR THE

MARTINSBURG AREA IN TPY

SO2 NOX PM2.5 NH3 VOC 

2007 (attainment) ................................................................. 9,016 19,254 2,455 1,522 8,109 

2017 (interim) ....................................................................... 7,629 12,086 2,188 1,485 5,668 

2017 (projected decrease) ................................................... 1,387 7,168 267 37 2,441 

2025 (maintenance) ............................................................. 7,743 10,030 2,154 1,500 5,308 

2025 (projected decrease) ................................................... 1,273 9,224 301 23 2,802 

Table 4 shows that between 2007 and 

2017, the Area is projected to reduce 

SO2 emissions by 1,387 tpy, NOX

emissions by 7,168 tpy, PM2.5 emissions 

by 267 tpy, NH3 by 37 tpy, and VOC by 

2,441 tpy. Between 2007 and 2025, the 

Area is projected to reduce SO2

emissions by 1,273 tpy, NOX emissions 

by 9,224 tpy, PM2.5 emissions by 301 

tpy, NH3 by 23 tpy, and VOC by 2,802 

tpy. Thus, the projected emissions 

inventories show that the Area will 

continue to maintain the 1997 annual 

PM2.5 NAAQS during the 10 year 

maintenance period. 

3. Monitoring Network 

EPA has determined that West 

Virginia’s maintenance plan includes a 

commitment to continue to operate its 

EPA-approved monitoring network, as 

necessary to demonstrate ongoing 

compliance with the NAAQS. There are 

two PM2.5 monitors in the Martinsburg 

Area. One is located in West Virginia 

operated by the West Virginia Division 

of Air Quality, and the other one is 

located in Maryland operated by the 

Maryland Department of the 

Environment. In its August 5, 2013 

submittal, West Virginia stated that it 

will consult with EPA prior to making 

any necessary changes to the network 

and will continue to quality assure the 

monitoring data in accordance with the 

requirements of 40 CFR part 58. 

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). EPA 

has determined that WVDEP will 

continue to compare emissions 

information to the attainment year 

inventory to assure continued 

attainment with the 1997 annual PM2.5

NAAQS and that WVDEP will use this 

information to assess emissions trends, 

as necessary. 

5. Contingency Measures 

The contingency plan provisions for 

maintenance plans are designed to 

promptly correct a violation of the 

NAAQS that occurs after redesignation. 

Section 175A of the CAA requires that 

a maintenance plan include such 

contingency measures as EPA deems 

necessary to ensure that a state will 

promptly correct a violation of the 

NAAQS that occurs after redesignation. 

The maintenance plan should identify 

the events that would ‘‘trigger’’ the 

adoption and implementation of a 

contingency measure(s), the 

contingency measure(s) that would be 

adopted and implemented, and the 

schedule indicating the time frame by 

which the state would adopt and 

implement the measure(s). 

West Virginia’s maintenance plan 

outlines the procedures for the adoption 

and implementation of contingency 

measures to further reduce emissions 

should a violation occur. West 

Virginia’s contingency measures include 

a warning level response and an action 


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level response. An initial warning level 

response is triggered when the average 

weighted annual mean for a single 

calendar year exceeds 15.5 mg/m3 within 

the maintenance area. In that case, a 

study will be conducted to determine if 

the emissions trends show increases; if 

action is necessary to reverse emissions 

increases, West Virginia will follow the 

same procedures for control selection 

and implementation as for an action 

level response, and implementation of 

necessary controls will take place as 

expeditiously as possible, but no later 

than 12 months from the end of the 

most recent calendar year. 

The action level response will be 

prompted by any one of the following: 

(1) A warning level response study that 

shows emissions increases; (2) a 

weighted annual mean over a two-year 

average that exceeds the standard; or (3) 

a violation of the standard in the 

maintenance area. If an action level 

response is triggered, West Virginia will 

adopt and implement appropriate 

control measures within 18 months 

from the end of the year in which 

monitored air quality triggering a 

response occurs. West Virginia will also 

consider whether additional regulations 

that are not a part of the maintenance 

plan can be implemented in a timely 

manner to respond to the trigger. 

West Virginia’s candidate contingency 

measures include the following: (1) 

Diesel reduction emission strategies; (2) 

alternative fuels and diesel retrofit 

programs for fleet vehicle operations; (3) 

PM2.5, SO2, and NOX emissions offsets 

for new and modified major sources; (4) 

concrete manufacturing controls; and (5) 

additional NOX reductions. 

Additionally, West Virginia has 

identified a list of sources that could 

potentially be controlled. These include: 

Industrial, commercial and institutional 

(ICI) Boilers for SO2 and NOX controls, 

EGUs, process heaters, internal 

combustion engines, combustion 

turbines, other sources greater than 100 

tpy, fleet vehicles, concrete 

manufacturers, and aggregate processing 

plants. EPA finds that the West Virginia 

maintenance plan for the Martinsburg 

Area includes appropriate contingency 

measures as necessary to ensure West 

Virginia will promptly correct any 

violation of the NAAQS that occurs after 

redesignation. For all of the reasons 

discussed above, EPA is proposing to 

approve West Virginia’s 1997 annual 

PM2.5 maintenance plan for the 

Martinsburg Area as meeting the 

requirements of section 175A of the 

CAA. 

C. Transportation Conformity 

Section 176(c) of the CAA requires 

Federal actions in nonattainment and 

maintenance areas to ‘‘conform to’’ the 

goals of SIPs. This means that such 

actions will not cause or contribute to 

violations of a NAAQS, worsen the 

severity of an existing violation, or 

delay timely attainment of any NAAQS 

or any interim milestone. Actions 

involving Federal Highway 

Administration (FHWA) or Federal 

Transit Administration (FTA) funding 

or approval are subject to the 

transportation conformity rule (40 CFR 

Part 93, subpart A). Under this rule, 

metropolitan planning organizations 

(MPOs) in nonattainment and 

maintenance areas coordinate with state 

air quality and transportation agencies, 

EPA, and the FHWA and FTA to 

demonstrate that their long range 

transportation plans and transportation 

improvement programs (TIP) conform to 

applicable SIPs. This is typically 

determined by showing that estimated 

emissions from existing and planned 

highway and transit systems are less 

than or equal to the MVEBs contained 

in the SIP. 

On August 5, 2013, West Virginia 

submitted a SIP revision that contains 

the 2017 and 2025 PM2.5 and NOX

onroad mobile source budgets for the 

Martinsburg Area that comprises 

Berkeley County, West Virginia. 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 D.C. 

Circuit Court in NRDC v. EPA, No. 08– 

1250 (January 4, 2013), in which the 

D.C. Circuit Court remanded to EPA the 

1997 PM2.5 Implementation Rule 

because it concluded that EPA must 

implement that NAAQS pursuant to the 

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 MVEBs for the 

Martinsburg Area. The MVEBs are 

presented in Table 5. 

TABLE 5—MVEBS FOR BERKELEY

COUNTY, WEST VIRGINIA FOR THE

1997 PM2.5 NAAQS IN TPY

Year PM2.5 NOX

2017 .................. 83 2,621 

2015 .................. 50 1,660 

EPA’s substantive criteria for 

determining adequacy of MVEBs are set 

out in 40 CFR 93.118(e)(4). 

Additionally, to approve the MVEBs, 

EPA must complete a thorough review 

of the SIP, in this case the PM2.5

maintenance plan, and conclude that 

with the projected level of motor vehicle 

and all other emissions, the SIP will 

achieve its overall purpose, in this case 

providing for maintenance of the 1997 

annual PM2.5 NAAQS. EPA’s process for 

determining adequacy of a MVEB 

consists of three basic steps: (1) 

Providing public notification of a SIP 

submission; (2) providing the public the 

opportunity to comment on the MVEB 

during a public comment period; and (3) 

EPA taking action on the MVEB. 

On December 20, 2013, EPA initiated 

an adequacy review of the MVEBs for 

the 1997 annual PM2.5 NAAQS that 

West Virginia included in its 

redesignation request submittal. As 

such, a notice of the submission of these 

MVEBs were posted on the adequacy 

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

stateresources/transconf/currsips.htm). 

The public comment period closed on 

January 21, 2014. There were no public 

comments received. EPA is acting on 

making the adequacy finding final 

through a separate notice of adequacy. 

EPA has reviewed the MVEBs and 

found them consistent with the 

maintenance plan and that the budgets 

meet the criteria for adequacy and 

approval. 

Therefore, EPA is proposing to 

approve the 2017 and 2025 PM2.5 and 

NOX MVEBs for Berkeley County for 

transportation conformity purposes. 

Additional information pertaining to the 

review of the MVEBs can be found in 

the TSD dated January 28, 2014, 

available on line at 

www.regulations.gov, Docket ID No. 

EPA–R03–OAR–2013–0690. 

VI. Proposed Actions 

EPA is proposing to approve the 

redesignation of the West Virginia 

portion of the Martinsburg Area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. EPA has 

evaluated West Virginia’s redesignation 

request and determined that it meets the 

redesignation criteria set forth in section 

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

that the monitoring data demonstrate 


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that the Martinsburg Area has attained 

the 1997 annual PM2.5 NAAQS and will 

continue to attain the standard. Final 

approval of this redesignation request 

would change the designation of the 

West Virginia portion of the 

Martinsburg Area from nonattainment to 

attainment for the 1997 PM2.5 annual 

NAAQS. EPA is also proposing to 

approve the associated maintenance 

plan for the Area submitted on August 

5, 2013, as a revision to the West 

Virginia SIP because it meets the 

requirements of section 175A of the 

CAA as described previously in this 

rulemaking notice. In addition, EPA is 

proposing to approve the 2007 base year 

emissions inventory as meeting the 

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

CAA. Furthermore, EPA is proposing to 

approve the 2017 and 2025 PM2.5 and 

NOX MVEBs submitted by West Virginia 

for Berkeley County for transportation 

purposes. EPA is soliciting public 

comments on the issues discussed in 

this document. These comments will be 

considered before taking final action. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

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 

request, maintenance plan, 2007 base 

year emissions inventory, and MVEBs 

for transportation conformity purposes 

for the West Virginia portion of the 

Martinsburg Area for the 1997 annual 

PM2.5 NAAQS, does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP is not approved 

to apply in Indian country located in the 

state, and EPA notes that it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, PM2.5, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness areas. 

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

Dated: April 16, 2014. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2014–10212 Filed 5–2–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–HQ–OAR–2013–0802; FRL 9909–23– 

OAR] 

RIN 2060–AS15 

Technical Amendments to Inadvertent 

Errors in Air Quality Designations for 

Fine Particles, Ozone, Lead, Nitrogen 

Dioxide and Sulfur Dioxide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This action proposes 

technical amendments to address 

several minor, inadvertent and 

nonsubstantive errors in the regulatory 

text establishing the air quality 

designations for certain areas in 

fourteen states for the 1997 Fine 

Particles (PM2.5) National Ambient Air 

Quality Standard (NAAQS), the 2008 

Ozone NAAQS, the 2008 Lead NAAQS, 

the 2010 Nitrogen Dioxide (NO2) 

NAAQS and the 2010 Sulfur Dioxide 

(SO2) NAAQS. The states are: Alabama, 

Florida, Georgia, Idaho, Indiana, Iowa, 

Minnesota, Missouri, North Carolina, 

Ohio, Oregon, Tennessee, Washington 

and Wisconsin. This action does not 

propose to change the designation for 

any area. In the ‘‘Rules’’ section of this 

Federal Register, we are making the 

same technical amendments as a direct 

final rule without a prior proposed rule. 

If we receive no adverse comment, we 

will not take further action on this 

proposed rule. 

DATES: Comments must be received on 

or before June 4, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2013–0802, by one of the 

following methods: 

• www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Email: a-and-r-Docket@

epamail.epa.gov, Attention Docket ID 

No. EPA–HQ–OAR–2013–0802. 

• Fax: (202) 566–1541, Attention 

Docket ID No. EPA–HQ–OAR–2013– 

0802. 

• Mail: Docket ID No. EPA–HQ– 

OAR–2013–0802, Environmental 

Protection Agency, Mailcode: 6102T, 

1200 Pennsylvania Ave. NW., 

Washington, DC 20460. 

• Hand Delivery: EPA Docket Center, 

U.S. Environmental Protection Agency, 

1301 Constitution Avenue NW., Room: 

3334, Mail Code: 6102T, Washington, 

DC 20460, Attention Docket ID No. 

EPA–HQ–OAR–2013–0802. Such 


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