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imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

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, these proposed 

actions do not impose additional 

requirements beyond those imposed by 

state law and the CAA. For that reason, 

these proposed actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

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

• are not significant regulatory 

actions subject to Executive Order 

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

• are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because a 

determination of attainment is an action 

that affects the status of a geographical 

area and does not impose any new 

regulatory requirements on tribes, 

impact any existing sources of air 

pollution on tribal lands, nor impair the 

maintenance of ozone national ambient 

air quality standards in tribal lands. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: July 12, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2013–18028 Filed 7–25–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2011–0596; FRL–9837–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Redesignation of the DaytonSpringfield Area to Attainment of the 

1997 Annual Standard for Fine 

Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

the State of Ohio’s request to 

redesignate the Dayton-Springfield 

nonattainment area (Dayton) to 

attainment for the 1997 annual National 

Ambient Air Quality Standards 

(NAAQS or standard) for fine 

particulate matter (PM2.5). EPA is also 

proposing to approve the related 

elements including emissions 

inventories, maintenance plans, and the 

accompanying motor vehicle budgets. 

EPA is proposing to approve a 

comprehensive emissions inventory that 

meets the Clean Air Act (CAA) 

requirement. EPA is proposing that the 

inventories for nitrogen oxides (NOX), 

direct PM2.5, sulfur dioxide (SO2), 

ammonia, and volatile organic 

compounds (VOC) meet the CAA 

emissions inventory requirement. In the 

course of proposing to approve Ohio’s 

request to redesignate the Dayton area, 

EPA addresses a number of additional 

issues, including the effects of two 

decisions of the United States Court of 

Appeals for the District of Columbia 

(D.C. Circuit or Court): (1) The Court’s 

August 21, 2012, decision to vacate and 

remand to EPA the Cross-State Air 

Pollution Control Rule (CSAPR) and (2) 

the Court’s January 4, 2013, decision to 

remand to EPA two final rules 

implementing the 1997 PM2.5 standard. 

DATES: Comments must be received on 

or before August 26, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2011–0596, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

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

3. Fax: (312) 692–2450. 

4. Mail: Pamela Blakley, Chief, 

Control Strategies Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand delivery: Pamela Blakley, 

Chief, Control Strategies Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Such deliveries are only 

accepted during the Regional Office 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

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

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2011– 

0596. 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 


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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. For additional instructions 

on submitting comments, go to Section 

I of this document, ‘‘What Should I 

Consider as I Prepare My Comments for 

EPA?’’ 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

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

Friday, excluding Federal holidays. We 

recommend that you telephone Matt 

Rau, Environmental Engineer, at (312) 

886–6524 before visiting the Region 5 

office. 

FOR FURTHER INFORMATION CONTACT: Matt 

Rau, Environmental Engineer, Control 

Strategies Section, Air Programs Branch 

(AR–18J), Environmental Protection 

Agency, Region 5, 77 West Jackson 

Boulevard, Chicago, Illinois 60604, 

(312) 886–6524, rau.matthew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What should I consider as I prepare my 

comments for EPA? 

II. What is the background for the proposal? 

III. What are the criteria for redesignation to 

attainment? 

IV. What is EPA’s analysis of Ohio’s request? 

A. Attainment Determination and 

Redesignation 

B. Comprehensive Emissions Inventories 

C. Motor Vehicle Emission Budgets 

(MVEBs) 

V. Summary of Proposed Actions 

VI. Statutory and Executive Order Reviews 

I. What should I consider as I prepare 

my comments for EPA? 

When submitting comments, 

remember to: 

1. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

2. Follow directions—EPA may ask 

you to respond to specific questions or 

organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

3. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

4. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

5. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

6. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

7. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

8. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. What is the background for the 

proposal? 

On June 1, 2011, Ohio submitted a 

request for EPA to redesignate the 

Dayton-Springfield, Ohio nonattainment 

area to attainment of the 1997 annual 

PM2.5 NAAQS. Ohio also requested EPA 

approval of the state implementation 

plan (SIP) revision containing an 

emissions inventory and a maintenance 

plan for the area. 

In a supplemental submission to EPA 

on April 30, 2013, Ohio submitted 

ammonia and VOC emissions 

inventories to supplement the emissions 

inventories for PM2.5, NOX, and SO2 that 

were submitted on June 1, 2011. 

Air quality standards for PM2.5 were 

promulgated on July 18, 1997, at 62 FR 

38652. EPA promulgated an annual 

standard at a level of 15 micrograms per 

cubic meter (mg/m3), based on a threeyear average of annual mean PM2.5

concentrations. In the same rulemaking, 

EPA set a 24-hour standard of 65 mg/m3, 

based on a three-year average of the 98th 

percentile of 24-hour concentrations. 

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

designated the Dayton area as 

nonattainment for the 1997 PM2.5 air 

quality standards. EPA defined the 

Dayton-Springfield nonattainment area 

to include Clark, Greene, and 

Montgomery Counties in Ohio. 

On October 17, 2006, at 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 24-hour concentrations. 

In response to legal challenges of the 

annual standard promulgated in 2006, 

the DC Circuit remanded the standard to 

EPA for further consideration. See 

American Farm Bureau Federation and 

National Pork Producers Council, et al. 

v. EPA, 559 F.3d 512 (DC Cir. 2009). On 

December 14, 2012, EPA finalized a rule 

revising the PM2.5 annual standard to 12 

mg/m3 based on current scientific 

evidence regarding the protection of 

public health. EPA is not addressing the 

2012 annual PM2.5 standard in this 

proposal. 

On September 14, 2011, at 76 FR 

56641, EPA issued a final determination 

that the Dayton area attained the 1997 

annual PM2.5 standard by the applicable 

attainment date of April 5, 2010, based 

on certified ambient monitoring data for 

the 2007–2009 monitoring period. 

Fine particle pollution can be emitted 

directly or formed secondarily through 

chemical reactions in the atmosphere. 

Sulfates are a type of secondary particle 

formed from SO2 emissions from power 

plants and industrial facilities. Nitrates, 

another common type of secondary 

particle, are formed from emissions of 

NOX from power plants, automobiles, 

and other combustion sources. 

Given the significance of sulfates and 

nitrates in the Dayton area, the area’s air 

quality is strongly affected by 

regulations of SO2 and NOX emissions 

from power plants. EPA proposed the 

Clean Air Interstate Rule (CAIR) on 

January 30, 2004, at 69 FR 4566, 

promulgated CAIR on May 12, 2005, at 

70 FR 25162, and promulgated 

associated Federal implementation 

plans (FIPs) on April 28, 2006, at 71 FR 

25328, in order to reduce SO2 and NOX

emissions and improve air quality in 

many areas in the Eastern and 

Midwestern United States. However, on 

July 11, 2008, the D.C. Circuit issued a 

decision to vacate and remand both 

CAIR and the associated CAIR FIPs in 

their entirety (North Carolina v. EPA, 

531 F.3d 836 (D.C. Cir. 2008)). EPA 

petitioned for rehearing, and the Court 

issued an order remanding CAIR and 

the CAIR FIPs to EPA without vacatur 

(North Carolina v. EPA, 550 F.3d 1176 

(D.C. Cir. 2008)). The Court, thereby, left 

CAIR in place in order to ‘‘temporarily 

preserve the environmental values 

covered by CAIR’’ until EPA replaces it 

with a rule consistent with the Court’s 

opinion. Id. at 1178. The Court directed 

EPA to ‘‘remedy CAIR’s flaws’’ 

consistent with its July 11, 2008, 

opinion, but declined to impose a 

schedule on EPA for completing that 

action. 

EPA issued CSAPR on August 8, 

2011, at 76 FR 48208. CSAPR addresses 

interstate transport of emissions with 

respect to the 1997 ozone and the 1997 

and 2006 PM2.5 NAAQS, and thus 

replaces CAIR. CSAPR requires 

substantial reductions of SO2 and NOX


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emissions from electric generating units 

(EGUs) across most of the Eastern and 

Midwestern United States. CSAPR 

established permanent and enforceable 

limits on EGU emissions across 28 

states. 

In this proposed redesignation, EPA 

takes into account two recent decisions 

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

Court decisions, the D.C. Circuit, on 

August 21, 2012, issued EME Homer 

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

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

remanded CSAPR and ordered EPA to 

continue administering CAIR ‘‘pending 

. . . development of a valid 

replacement.’’ EME Homer City at 38. 

The D.C. Circuit denied all petitions for 

rehearing on January 24, 2013. In the 

second decision, on January 4, 2013, in 

Natural Resources Defense Council v. 

EPA, the D.C. Circuit remanded to EPA 

the ‘‘Final Clean Air Fine Particle 

Implementation Rule’’ (72 FR 20586, 

April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

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

III. What are the criteria for 

redesignation to attainment? 

The requirements for redesignating an 

area from nonattainment to attainment 

are found in CAA section 107(d)(3)(E). 

There are five criteria for redesignating 

an area. First, the Administrator must 

determine that an area has attained the 

applicable NAAQS based on current air 

quality data. Second, the Administrator 

has fully approved the applicable SIP 

for the area under CAA section 110(k). 

The third criterion is for the 

Administrator to determine that the air 

quality improvement is the result of 

permanent and enforceable emission 

reductions. Emission reductions 

resulting from requirements approved 

into the SIP and from Federal air 

pollution control requirements are 

considered permanent and enforceable. 

Fourth, the Administrator has fully 

approved a maintenance plan meeting 

the CAA section 175A requirements. 

The fifth criterion is that the state has 

met all the redesignation requirements 

of CAA section 110 and part D. 

IV. What is EPA’s analysis of Ohio’s 

request? 

A. Attainment Determination and 

Redesignation 

EPA is proposing to determine that 

the Dayton area continues to attain the 

PM2.5 annual standard. EPA is also 

proposing to approve Ohio’s 

maintenance plans for the area and to 

determine that the area has met all other 

applicable redesignation criteria under 

CAA section 107(d)(3)(E). The basis for 

EPA’s proposed approval of the 

redesignation requests is as follows: 

1. The Area Has Attained the 1997 

Annual PM2.5 NAAQS 

EPA examined monitoring data to 

determine if the area currently meets the 

PM2.5 annual standard, as determined in 

accordance with 40 CFR 50.7 and part 

50, appendix N, based on three 

complete consecutive calendar years of 

quality-assured air quality monitoring 

data. EPA is proposing to find that the 

Dayton area is continuing to meet the 

annual PM2.5 standard. The monitoring 

data for the Dayton area are found on 

Table 1. 

TABLE 1—DAYTON AREA ANNUAL PM2.5 MONITORING DATA

[μg/m3] 

County 2008–2010 2009–2011 2010–2012 

Clark ............................................................................................................................................. 12.7 12.6 11.9 

Greene ......................................................................................................................................... 12.1 12.0 11.4 

Montgomery ................................................................................................................................. 13.2 12.9 12.3 

EPA makes the determination of 

whether an area’s air quality is meeting 

the PM2.5 NAAQS primarily based upon 

data gathered from the air quality 

monitoring sites that have been entered 

into EPA’s Air Quality System (AQS) 

database. To show attainment of the 

annual standard for PM2.5, the most 

recent three consecutive years of data 

prior to the area’s attainment date must 

show that PM2.5 concentrations over a 

three-year period are at or below the 

level of the standard, 15.0 mg/m3. 

Ohio submitted its requests based on 

2008 to 2010 monitoring data showing 

that the Dayton area continues to attain 

the PM2.5 standard. Monitoring data for 

2011 and 2012 became available from 

AQS since Ohio submitted its request. 

The 2010 to 2012 design values above 

reflect preliminary calculations of 

design value based on quality assured, 

certified air quality data. Thus, EPA also 

examined the 2009 to 2011 and 2010 to 

2012 averages for each monitoring site 

in the Dayton area. This current 

monitoring data as presented on Table 

1 shows that the area continues to attain 

the annual standard. 

Greene County has a single PM2.5

monitor, site 39–057–0005, located in 

Yellow Springs. This site has operated 

since October 2003, but it had just a 45 

percent data capture in the third quarter 

of 2010. EPA’s completeness criterion is 

75 percent data capture for every 

quarter. Thus, the 2010 data are 

incomplete, as are all three-year periods 

that include 2010 data. Ohio explained 

in its submission that the Greene 

County monitor was down from August 

12 to September 29, 2010, due to repairs 

to the roof of the building hosting the 

monitoring site. EPA data shows that 

this monitor had at least 93 percent data 

capture in the other 11 quarters in the 

2009 to 2011 period. The 2012 

monitoring data indicates all four 

quarters of data are complete and thus 

EPA finds the Greene County monitor to 

have 11 complete quarters of data for 

the 2010 to 2012 period. 

EPA examined air quality in Greene 

County in several ways. First, EPA 

examined data for the most recent 

complete three years of data at this site. 

The most recent three-year period with 

complete data is 2007 to 2009, during 

which Greene County recorded a design 

value of 12.1 mg/m3, which is well 

below the standard. These data, in 

combination with the subsequent 

incomplete data suggesting continued 

attainment, provide adequate evidence 

that this location is attaining the 

standard. 

Second, Ohio performed an analysis 

of the missing data for the Greene 

County monitoring site. Ohio 

substituted data from the other monitors 

in the Dayton area for the 17 missing 

values from August and September 

2010. There are two other monitors in 

the area, one each in Clark and 

Montgomery Counties. The state 

determined that the Clark County 

monitor data had a 0.9236 correlation 

with the Greene County data. The 

substitute values in the third quarter 

actually lower the 2010 average from 

13.2 to 12.2 mg/m3. 

Third, EPA examined the monitoring 

data history for Greene County. The site 


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recorded an average of 17.24 mg/m3 for 

the third quarter of 2010, which 

compares to the average of 14.43 mg/m3

for Clark County and 14.84 mg/m3 for 

Montgomery County. The 2010 average 

for the sites are closer with Greene 

County having a 13.2 mg/m3 annual 

average, Clark County was at 13.1 mg/ 

m3, and 14.0 mg/m3 for Montgomery 

County. 

Looking back further, Greene County 

has recorded annual design values of 

13.6 mg/m3 in 2005 to 2007, 12.3 mg/m3

in 2006 to 2008, and 12.1 mg/m3 in 2007 

to 2009. The annual design values for 

Clark County are 14.8 mg/m3 in 2005 to 

2007, 13.5 mg/m3 in 2006 to 2008, and 

13.3 mg/m3 in 2007 to 2009. The 

Montgomery County annual design 

values are 15.5 mg/m3 in 2005 to 2007, 

14.2 mg/m3 in 2006 to 2008, and 13.8 mg/ 

m3 in 2007 to 2009. The design value 

history shows that the ambient air 

quality in Greene County has 

consistently had the lowest design value 

in the Dayton area, while Montgomery 

County recorded the area’s highest 

design values. The 2010 design value for 

Greene County was similar to the Clark 

County value, while remaining lower 

than the Montgomery County value. 

This can be attributed to 

uncharacteristically high 2010 third 

quarter average that had 17 missing 

values. Ohio analysis showed that 

adding typical values for the missing 

data would have lowered the 2010 

average. The 2008 to 2010, 2009 to 2011, 

and the preliminary 2010 to 2012 

Greene County design values are well 

below the PM2.5 standard. The other two 

monitors recorded values moderately 

below the standard during 2010’s third 

quarter. Thus, it is likely that the 2008 

to 2010, 2009 to 2011, and 2010 to 2012 

Greene County design values would not 

have been any higher had site 39–057– 

0005 recorded complete data for the 

third quarter of 2010. 

For all these reasons, EPA believes 

that the Dayton area continues to attain 

the annual PM2.5 standard based on 

current data. 

2. The Area Has Met All Applicable 

Requirements Under Section 110 and 

Part D; and the Area Has a Fully 

Approved SIP Under Section 110(k) 

The requirements for a state to have 

a fully approved SIP meeting all 

relevant requirements are specified in 

CAA sections 107(d)(3)(E)(ii) and 

107(d)(3)(E)(v). 

EPA has determined that Ohio has 

met all currently applicable SIP 

requirements for purposes of 

redesignation for the Dayton area under 

CAA section 110, general SIP 

requirements. EPA has also determined 

that the Ohio SIP meets all SIP 

requirements currently applicable for 

purposes of redesignation in accordance 

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

with the exception of the emissions 

inventory under section 172(c)(3), we 

have approved all applicable 

requirements of the Ohio SIP for 

purposes of redesignation, in 

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

As discussed below, in this action EPA 

is proposing to approve Ohio’s 2005 and 

2008 emissions inventories as meeting 

the section 172(c)(3) comprehensive 

emissions inventory requirement. 

In making these determinations, EPA 

ascertained what SIP requirements are 

applicable to the area for purposes of 

this redesignation and determined that 

the portions of the SIP meeting these 

requirements are fully approved under 

section 110(k) of the CAA. SIPs must be 

fully approved only with respect to 

currently applicable requirements of the 

CAA. 

a. The Dayton Area Has Met All 

Applicable Requirements for Purposes 

of Redesignation Under Section 110 and 

Part D of the CAA 

i. Section 110(a) General SIP 

Requirements 

Section 110(a) of title I of the CAA 

contains the general requirements for a 

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

implementation plan submitted by a 

state must have been adopted by the 

state after reasonable public notice and 

hearing, and, among other things, must: 

Include enforceable emission 

limitations and other control measures, 

means or techniques necessary to meet 

the requirements of the CAA; provide 

for establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to monitor 

ambient air quality; provide for 

implementation of a source permit 

program to regulate the modification 

and construction of any stationary 

source within the areas covered by the 

plan; include provisions for the 

implementation of part C, Prevention of 

Significant Deterioration (PSD) and part 

D, NSR permit programs; include 

criteria for stationary source emission 

control measures, monitoring, and 

reporting; include provisions for air 

quality modeling; and provide for 

public and local agency participation in 

planning and emission control rule 

development. 

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

requires that SIPs contain measures to 

prevent sources in a state from 

significantly contributing to air quality 

problems in another state. EPA holds 

that the requirements linked with a 

particular nonattainment area’s 

designation are the relevant measures to 

evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a state regardless of 

the designation of any one particular 

area in the state. Thus, we conclude that 

these requirements should not be 

construed to be applicable requirements 

for purposes of redesignation. 

EPA believes that section 110 

elements not connected with 

nonattainment plan submissions and 

not linked to an area’s nonattainment 

status are not applicable requirements 

for redesignations. EPA reviews the 

state’s request to redesignate an area to 

attainment based on the CAA 

requirements. 

This approach is consistent with 

EPA’s existing policy on applicability of 

conformity and oxygenated fuels 

requirements for redesignation 

purposes, as well as with section 184 

ozone transport requirements. See 

Reading, Pennsylvania, proposed and 

final rulemakings (61 FR 53174–53176, 

October 10, 1996) and (62 FR 24826, 

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

Ohio, final rulemaking (61 FR 20458, 

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

rulemaking (60 FR 62748, December 7, 

1995). See also the discussion on this 

issue in the Cincinnati, Ohio 1-hour 

ozone redesignation (65 FR 37890, June 

19, 2000), and in the Pittsburgh, 

Pennsylvania 1-hour ozone 

redesignation (66 FR 50399, October 19, 

2001). 

We have reviewed the Ohio SIP and 

have concluded that it meets the general 

SIP requirements under section 110 of 

the CAA to the extent they are 

applicable for purposes of 

redesignation. EPA has previously 

approved provisions of Ohio’s SIP 

addressing section 110 requirements, 

including provisions addressing 

particulate matter, at 40 CFR 52.1870. 

On December 5, 2007, and September 4, 

2009, Ohio made submittals addressing 

‘‘infrastructure SIP’’ elements required 

by section 110(a)(2) of the CAA. EPA 

approved elements of Ohio’s submittals 

on July 13, 2011, at 76 FR 41075. The 

requirements of section 110(a)(2), 

however, are statewide requirements 

that are not linked to the PM2.5

nonattainment status of the Dayton area. 

Therefore, EPA believes that these SIP 

elements are not applicable 

requirements for purposes of review of 

the Ohio PM2.5 redesignation requests. 

ii. Part D Requirements 

EPA is proposing to determine that, 

upon approval of the base year 

emissions inventories discussed in 


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section IV.B., the Ohio SIP will meet the 

applicable SIP requirements for the 

Dayton area applicable for purposes of 

redesignation under part D of the CAA. 

Subpart 1 of part D, found in sections 

172–176 of the CAA, sets forth the basic 

nonattainment requirements applicable 

to all nonattainment areas. Subpart 4 of 

part D, found in sections 185–190 of the 

CAA, provides more specific 

requirements for particulate matter 

nonattainment areas. 

(1) Subpart 1 

(a) Section 172 Requirements 

For purposes of evaluating these 

redesignation requests, the applicable 

section 172 SIP requirements for the 

Dayton area are contained in sections 

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

the requirements contained in section 

172 can be found in the General 

Preamble for Implementation of Title I 

(57 FR 13498, April 16, 1992). 

Section 172(c)(1) requires the plans 

for all nonattainment areas to provide 

for the implementation of all 

Reasonably Available Control Measures 

(RACM) as expeditiously as practicable 

and to provide for attainment of the 

primary NAAQS. EPA interprets this 

requirement to impose a duty on all 

nonattainment areas to consider all 

available control measures and to adopt 

and implement such measures as are 

reasonably available for implementation 

in each area as components of the area’s 

attainment demonstration. Since 

attainment has been reached, no 

additional measures are needed to 

provide for attainment, and section 

172(c)(1) requirements are no longer 

considered to be applicable as long as 

the area continues to attain the standard 

until redesignation. See 40 CFR 

51.1004(c). The Reasonable Further 

Progress (RFP) requirement under 

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

that must be made toward attainment. 

This requirement is not relevant for 

purposes of this redesignation because 

the Dayton area is monitoring 

attainment of the 1997 annual PM2.5

NAAQS. The requirement to submit the 

section 172(c)(9) contingency measures 

is similarly not applicable for purposes 

of this redesignation. 

Section 172(c)(3) requires submission 

and approval of a comprehensive, 

accurate, and current inventory of actual 

emissions. Ohio submitted 2005 and 

2008 emissions inventories along with 

their redesignation request and 

supplemented the inventories on April 

30, 2013. As discussed in section IV.B., 

EPA is proposing to approve the 2005 

and 2008 emission inventories as 

meeting the section 172(c)(3) emissions 

inventory requirement for the Dayton 

area. 

Section 172(c)(4) requires the 

identification and quantification of 

allowable emissions for major new and 

modified stationary sources in an area, 

and section 172(c)(5) requires source 

permits for the construction and 

operation of new and modified major 

stationary sources anywhere in the 

nonattainment area. EPA approved 

Ohio’s current NSR program on January 

10, 2003 (68 FR 1366). Nonetheless, 

since PSD requirements will apply after 

redesignation, the area does not need to 

have a fully-approved NSR program for 

purposes of redesignation, provided that 

the area demonstrates maintenance of 

the NAAQS without part D NSR. A 

detailed rationale for this view is 

described in a memorandum from Mary 

Nichols, Assistant Administrator for Air 

and Radiation, dated October 14, 1994, 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment’’ (Nichols 

memorandum). Ohio has demonstrated 

that the Dayton area will be able to 

maintain the standard without part D 

NSR in effect; therefore, the state does 

not need to have a fully approved part 

D NSR program prior to approval of the 

redesignation request. Ohio’s PSD 

program will become effective in the 

Dayton area upon redesignation to 

attainment. See rulemakings for Detroit, 

Michigan (60 FR 12467–12468, March 7, 

1995); Cleveland-Akron-Lorain, Ohio 

(61 FR 20458, 20469–20470, May 7, 

1996); Louisville, Kentucky (66 FR 

53665, October 23, 2001); and Grand 

Rapids, Michigan (61 FR 31834–31837, 

June 21, 1996). 

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

contain control measures necessary to 

provide for attainment of the standard. 

As attainment has been reached, no 

additional measures are needed to 

provide for attainment. 

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

meet the applicable provisions of 

section 110(a)(2). As noted, EPA finds 

that the Ohio SIP meets the section 

110(a)(2) requirements applicable for 

purposes of redesignation. 

(b) Section 176 Conformity 

Requirements 

Section 176(c) of the CAA requires 

states to establish criteria and 

procedures to ensure that Federallysupported or funded activities, 

including highway projects, conform to 

the air quality planning goals in the 

applicable SIPs. The requirement to 

determine conformity applies to 

transportation plans, programs, and 

projects developed, funded, or approved 

under title 23 of the U.S. Code and the 

Federal Transit Act (transportation 

conformity) as well as to all other 

Federally-supported or funded projects 

(general conformity). 

Section 176(c) of the CAA was 

amended by provisions contained in the 

Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU), which was 

signed into law on August 10, 2005 

(Pub. L. 109–59). Among the changes 

Congress made to this section of the 

CAA were streamlined requirements for 

state transportation conformity SIPs. 

State transportation conformity 

regulations must be consistent with 

Federal conformity regulations and 

address three specific requirements 

related to consultation, enforcement, 

and enforceability. EPA believes that it 

is reasonable to interpret the 

transportation conformity SIP 

requirements as not applying for 

purposes of evaluating the redesignation 

request under section 107(d) for two 

reasons. 

First, the requirement to submit SIP 

revisions to comply with the 

transportation conformity provisions of 

the CAA continues to apply to areas 

after redesignation to attainment since 

such areas would be subject to a section 

175A maintenance plan. Second, EPA’s 

Federal conformity rules require the 

performance of conformity analyses in 

the absence of Federally-approved state 

rules. Therefore, because areas are 

subject to the transportation conformity 

requirements regardless of whether they 

are redesignated to attainment and, 

because they must implement 

conformity under Federal rules if state 

rules are not yet approved, EPA believes 

it is reasonable to view these 

requirements as not applying for 

purposes of evaluating a redesignation 

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

(6th Cir. 2001), upholding this 

interpretation. See also 60 FR 62748, 

62749–62750 (Dec. 7, 1995) (Tampa, 

Florida). 

EPA approved Ohio’s general 

conformity SIP on March 11, 1996 (61 

FR 9646), and Ohio’s transportation 

conformity SIP on May 30, 2000 (65 FR 

34395), and April 27, 2007 (72 FR 

20945). Ohio is in the process of 

updating its approved transportation 

conformity SIP, and EPA will review its 

provisions when they are submitted. 

Ohio also submitted onroad motor 

vehicle emission budgets for 

transportation conformity purposes, 

which EPA reviews in section IV.C 

below. 


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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. 

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

Circuit Decision Regarding PM2.5

Implementation Under Subpart 4 

(a) Background 

As discussed above, on January 4, 

2013, in Natural Resources Defense 

Council v. EPA, the D.C. Circuit 

remanded to EPA the ‘‘Final Clean Air 

Fine Particle Implementation Rule’’ (72 

FR 20586, April 25, 2007) and the 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less than 2.5 Micrometers 

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

16, 2008) (collectively, ‘‘1997 PM2.5

Implementation Rule’’). 706 F.3d 428 

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

EPA erred in implementing the 1997 

PM2.5 NAAQS pursuant to the general 

implementation provisions of subpart 1 

of part D of title I of the CAA, rather 

than the particulate-matter-specific 

provisions of subpart 4 of part D of title 

I. 

2. Proposal on This Issue 

EPA is proposing to determine that 

the Court’s January 4, 2013, decision 

does not prevent EPA from 

redesignating the Dayton area to 

attainment. Even in light of the Court’s 

decision, redesignation for this area is 

appropriate under the CAA and EPA’s 

longstanding interpretations of the 

CAA’s provisions regarding 

redesignation. 

i. Applicable Requirements for Purposes 

of Evaluating the Redesignation Request 

With respect to the 1997 PM2.5

Implementation Rule, the D.C. Circuit’s 

January 4, 2013, ruling rejected EPA’s 

reasons for implementing the PM2.5

NAAQS solely in accordance with the 

provisions of subpart 1, and remanded 

that matter to EPA, so that it could 

address implementation of the 1997 

PM2.5 NAAQS under subpart 4 of part D 

of the CAA, in addition to subpart 1. For 

the purposes of evaluating Ohio’s 

redesignation request for the area, to the 

extent that implementation under 

subpart 4 would impose additional 

requirements for areas designated 

nonattainment, EPA believes that those 

requirements are not ‘‘applicable’’ for 

the purposes of CAA section 

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

required to consider subpart 4 

requirements for the Dayton 

redesignation. Under its longstanding 

interpretation of the CAA, EPA has 

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

as a threshold matter, that the part D 

provisions which are ‘‘applicable’’ and 

which must be approved in order for 

EPA to redesignate an area include only 

those which came due prior to a State’s 

submission of a complete redesignation 

request. See ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment,’’ Memorandum from John 

Calcagni, Director, Air Quality 

Management Division, September 4, 

1992 (Calcagni memorandum). See also 

‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) on or after 

November 15, 1992,’’ Memorandum 

from Michael Shapiro, Acting Assistant 

Administrator, Air and Radiation, 

September 17, 1993 (Shapiro 

memorandum); Final Redesignation of 

Detroit-Ann Arbor, (60 FR 12459, 

12465–66, March 7, 1995); Final 

Redesignation of St. Louis, Missouri, (68 

FR 25418, 25424–27, May 12, 2003); 

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

(7th Cir. 2004) (upholding EPA’s 

redesignation rulemaking applying this 

interpretation and expressly rejecting 

Sierra Club’s view that the meaning of 

‘‘applicable’’ under the statute is 

‘‘whatever should have been in the plan 

at the time of attainment rather than 

whatever actually was in the plan and 

already implemented or due at the time 

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

that Ohio submitted its redesignation 

request, requirements under subpart 4 

were not due, and indeed, were not yet 

known to apply. 

EPA’s view that, for purposes of 

evaluating the Dayton redesignation, the 

subpart 4 requirements were not due at 

the time the state submitted the 

redesignation request is in keeping with 

the EPA’s interpretation of subpart 2 

requirements for subpart 1 ozone areas 

redesignated subsequent to the D.C. 

Circuit’s decision in South Coast Air 

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

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

Court found that EPA was not permitted 

to implement the 1997 8-hour ozone 

standard solely under subpart 1, and 

held that EPA was required under the 

statute to implement the standard under 

the ozone-specific requirements of 

subpart 2 as well. Subsequent to the 

South Coast decision, in evaluating and 

acting upon redesignation requests for 

the 1997 8-hour ozone standard that 

were submitted to EPA for areas under 

subpart 1, EPA applied its longstanding 

interpretation of the CAA that 

‘‘applicable requirements’’, for purposes 

of evaluating a redesignation, are those 

that had been due at the time the 

redesignation request was submitted. 

See, e.g., Proposed Redesignation of 

Manitowoc County and Door County 

Nonattainment Areas (75 FR 22047, 

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

EPA therefore did not consider subpart 

2 requirements to be ‘‘applicable’’ for 

the purposes of evaluating whether the 

area should be redesignated under 

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

EPA’s interpretation derives from the 

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

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

area to be redesignated, a state must 

meet ‘‘all requirements ‘applicable’ to 

the area under section 110 and part D.’’ 

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

EPA must have fully approved the 

‘‘applicable’’ SIP for the area seeking 

redesignation. These two sections read 

together support EPA’s interpretation of 

‘‘applicable’’ as only those requirements 

that came due prior to submission of a 

complete redesignation request. First, 

holding states to an ongoing obligation 

to adopt new CAA requirements that 

arose after the state submitted its 

redesignation request, in order to be 

redesignated, would make it 

problematic or impossible for EPA to act 

on redesignation requests in accordance 

with the 18-month deadline Congress 

set for EPA action in section 

107(d)(3)(D). If ‘‘applicable 

requirements’’ were interpreted to be a 

continuing flow of requirements with no 

reasonable limitation, states, after 

submitting a redesignation request, 

would be forced continuously to make 

additional SIP submissions that in turn 

would require EPA to undertake further 

notice-and-comment rulemaking actions 

to act on those submissions. This would 

create a regime of unceasing rulemaking 

that would delay action on the 

redesignation request beyond the 18- 

month timeframe provided by the CAA 

for this purpose. 

Second, a fundamental premise for 

redesignating a nonattainment area to 

attainment is that the area has attained 

the relevant NAAQS due to emission 

reductions from existing controls. Thus, 

an area for which a redesignation 

request has been submitted would have 

already attained the NAAQS as a result 

of satisfying statutory requirements that 

came due prior to the submission of the 

request. Absent a showing that 

unadopted and unimplemented 

requirements are necessary for future 

maintenance, it is reasonable to view 

the requirements applicable for 

purposes of evaluating the redesignation 

request as including only those SIP 

requirements that have already come 

due. These are the requirements that led 

to attainment of the NAAQS. To require, 


tkelley on DSK3SPTVN1PROD with PROPOSALS
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2Sierra Club v. Whitman was discussed and 

distinguished in a recent D.C. Circuit decision that 

addressed retroactivity in a quite different context, 

where, unlike the situation here, EPA sought to give 

its regulations retroactive effect. National 

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

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

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

(2011). 

3PM10 refers to particulates nominally 10 

micrometers in diameter or smaller. 

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

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

redesignation is discussed below. 

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

milestone requirements, contingency measures. 

for redesignation approval, that a state 

also satisfy additional SIP requirements 

coming due after the state submits its 

complete redesignation request, and 

while EPA is reviewing it, would 

compel the state to do more than is 

necessary to attain the NAAQS, without 

a showing that the additional 

requirements are necessary for 

maintenance. 

In the context of this redesignation, 

the timing and nature of the Court’s 

January 4, 2013, decision in NRDC v. 

EPA compound the consequences of 

imposing requirements that come due 

after the redesignation request is 

submitted. The state submitted its 

redesignation request on June 1, 2011, 

but the Court did not issue its decision 

remanding EPA’s 1997 PM2.5

implementation rule concerning the 

applicability of the provisions of 

subpart 4 until January 2013. 

To require the state’s fully-completed 

and pending redesignation request to 

comply now with requirements of 

subpart 4 that the Court announced only 

in January, 2013, would be to give 

retroactive effect to such requirements 

when the state had no notice that it was 

required to meet them. The D.C. Circuit 

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 District Court’s 

ruling refusing to make retroactive 

EPA’s determination that the St. Louis 

area did not meet its attainment 

deadline. In that case, petitioners urged 

the Court to make EPA’s nonattainment 

determination effective as of the date 

that the statute required, rather than the 

later date on which EPA actually made 

the determination. The Court rejected 

this view, stating that applying it 

‘‘would likely impose large costs on 

states, which would face fines and suits 

for not implementing air pollution 

prevention plans . . . even though they 

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

68. Similarly, it would be unreasonable 

to penalize Ohio by rejecting its 

redesignation request for an area that is 

already attaining the 1997 PM2.5

standard and that met all applicable 

requirements known to be in effect at 

the time of the request. For EPA now to 

reject the redesignation request solely 

because the state did not expressly 

address subpart 4 requirements of 

which it had no notice, would inflict the 

same unfairness condemned by the 

Court in Sierra Club v. Whitman. 

ii. Subpart 4 Requirements and Ohio’s 

Redesignation Request 

Even if EPA were to take the view that 

the Court’s January 4, 2013, decision 

requires that, in the context of pending 

redesignations, subpart 4 requirements 

were due and in effect at the time the 

State submitted its redesignation 

request, EPA proposes to determine that 

the Dayton area still qualifies for 

redesignation to attainment. As 

explained below, EPA believes that the 

redesignation request for the Dayton 

area, though not expressed in terms of 

subpart 4 requirements, substantively 

meets the requirements of that subpart 

for purposes of redesignating the area to 

attainment. 

With respect to evaluating the 

relevant substantive requirements of 

subpart 4 for purposes of redesignating 

the Dayton area, EPA notes that subpart 

4 incorporates components of subpart 1 

of part D, which contains general air 

quality planning requirements for areas 

designated as nonattainment. See 

Section 172(c). Subpart 4 itself contains 

specific planning and scheduling 

requirements for PM10 3 nonattainment 

areas, and under the Court’s January 4, 

2013, decision in NRDC v. EPA, these 

same statutory requirements also apply 

for PM2.5 nonattainment areas. EPA has 

longstanding general guidance that 

interprets the 1990 amendments to the 

CAA, making recommendations to states 

for meeting the statutory requirements 

for SIPs for nonattainment areas. See, 

‘‘State Implementation Plans; General 

Preamble for the Implementation of 

Title I of the Clear Air Act Amendments 

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

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

Preamble, EPA discussed the 

relationship of subpart 1 and subpart 4 

SIP requirements, and pointed out that 

subpart 1 requirements were to an 

extent ‘‘subsumed by, or integrally 

related to, the more specific PM–10 

requirements.’’ 57 FR 13538 (April 16, 

1992). The subpart 1 requirements 

include, among other things, provisions 

for attainment demonstrations, RACM, 

RFP, emissions inventories, and 

contingency measures. 

For the purposes of this redesignation, 

in order to identify any additional 

requirements which would apply under 

subpart 4, we are considering the 

Dayton area to be a ‘‘moderate’’ PM2.5

nonattainment area. Under section 188 

of the CAA, all areas designated 

nonattainment areas under subpart 4 

would initially be classified by 

operation of law as ‘‘moderate’’ 

nonattainment areas, and would remain 

moderate nonattainment areas unless 

and until EPA reclassifies the area as a 

‘‘serious’’ nonattainment area. 

Accordingly, EPA believes that it is 

appropriate to limit the evaluation of 

the potential impact of subpart 4 

requirements to those that would be 

applicable to moderate nonattainment 

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

4 apply to moderate nonattainment 

areas and include the following: (1) An 

approved permit program for 

construction of new and modified major 

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

(2) an attainment demonstration (section 

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

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

quantitative milestones demonstrating 

RFP toward attainment by the 

applicable attainment date (section 

189(c)). 

The permit requirements of subpart 4, 

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

refer to and apply the subpart 1 permit 

provisions requirements of sections 172 

and 173 to PM10, without adding to 

them. Consequently, EPA believes that 

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

impose for redesignation purposes any 

additional requirements for moderate 

areas beyond those contained in subpart 

1.4 In any event, in the context of 

redesignation, EPA has long relied on 

the interpretation that a fully approved 

nonattainment NSR program is not 

considered an applicable requirement 

for redesignation, provided the area can 

maintain the standard with a PSD 

program after redesignation. A detailed 

rationale for this view is described in 

the October 14, 1994, Nichols 

memorandum. 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 standard is viewed 

as having satisfied the attainment 

planning requirements for these 

subparts. For redesignations, EPA has 

for many years interpreted attainmentVerDate Mar<15>2010 17:22 Jul 25, 2013 Jkt 229001 PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 E:\FR\FM\26JYP1.SGM 26JYP1

tkelley on DSK3SPTVN1PROD with PROPOSALS
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6As EPA has explained above, we do not believe 

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

interpreted so as to impose these requirements on 

the states retroactively. Sierra Club v. Whitman, 

supra. 

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. 

‘‘General Preamble for the Interpretation 

of Title I of the Clean Air Act 

Amendments of 1990’’; (57 FR 13498, 

13564, April 16, 1992). 

The General Preamble also explained 

that 

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

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply when an area has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans . . . provides specific requirements for 

contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas. 

Id. 

EPA similarly stated in its 1992 

Calcagni memorandum that, ‘‘The 

requirements for reasonable further 

progress and other measures needed for 

attainment will not apply for 

redesignations because they only have 

meaning for areas not attaining the 

standard.’’ 

It is evident that even if we were to 

consider the Court’s January 4, 2013, 

decision in NRDC v. EPA to mean that 

attainment-related requirements specific 

to subpart 4 should be imposed 

retroactively 6 and thus are now past 

due, those requirements do not apply to 

an area that is attaining the 1997 PM2.5

standard, for the purpose of evaluating 

a pending request to redesignate the 

area to attainment. EPA has consistently 

enunciated this interpretation of 

applicable requirements under section 

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

was published more than twenty years 

ago. Courts have recognized the scope of 

EPA’s authority to interpret ‘‘applicable 

requirements’’ in the redesignation 

context. See Sierra Club v. EPA, 375 

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

Moreover, even outside the context of 

redesignations, EPA has viewed the 

obligations to submit attainment-related 

SIP planning requirements of subpart 4 

as inapplicable for areas that EPA 

determines are attaining the standard. 

EPA’s prior ‘‘Clean Data Policy’’ 

rulemakings for the PM10 NAAQS, also 

governed by the requirements of subpart 

4, explain EPA’s reasoning. They 

describe the effects of a determination of 

attainment on the attainment-related SIP 

planning requirements of subpart 4. See 

‘‘Determination of Attainment for Coso 

Junction Nonattainment Area,’’ (75 FR 

27944, May 19, 2010). See also Coso 

Junction proposed PM10 redesignation, 

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

Proposed and Final Determinations of 

Attainment for San Joaquin 

Nonattainment Area (71 FR 40952, 

40954–55, July 19, 2006; and 71 FR 

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

short, EPA in this context has also long 

concluded that to require states to meet 

superfluous SIP planning requirements 

is not necessary and not required by the 

CAA, so long as those areas continue to 

attain the relevant NAAQS. 

EPA proposes to determine that the 

area has attained the 1997 PM2.5

standard. Under its longstanding 

interpretation, EPA is proposing to 

determine here that the area meets the 

attainment-related plan requirements of 

subparts 1 and 4. 

Thus, EPA is proposing to conclude 

that the requirements to submit an 

attainment demonstration under 

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

under section 172(c)d section 

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

189(c)(1), and contingency measure 

requirements under section 172(c)(9) are 

satisfied for purposes of evaluating the 

redesignation request. 

iii. Subpart 4 and Control of PM2.5

Precursors 

The D.C. Circuit in NRDC v. EPA 

remanded to EPA the two rules at issue 

in the case with instructions to EPA to 

re-promulgate them consistent with the 

requirements of subpart 4. EPA in this 

section addresses the Court’s opinion 

with respect to PM2.5 precursors. While 

past implementation of subpart 4 for 

PM10 has allowed for control of PM10

precursors such as NOX from major 

stationary, mobile, and area sources in 

order to attain the standard as 

expeditiously as practicable, CAA 

section 189(e) specifically provides that 

control requirements for major 

stationary sources of direct PM10 shall 

also apply to PM10 precursors from 

those sources, except where EPA 

determines that major stationary sources 

of such precursors ‘‘do not contribute 

significantly to PM10 levels which 

exceed the standard in the area.’’ 

EPA’s 1997 PM2.5 implementation 

rule, remanded by the D.C. Circuit, 

contained rebuttable presumptions 

concerning certain PM2.5 precursors 

applicable to attainment plans and 

control measures related to those plans. 

Specifically, in 40 CFR 51.1002, EPA 

provided, among other things, that a 

state was ‘‘not required to address VOC 

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

plan precursor[s] and to evaluate 

sources of VOC [and ammonia] 

emissions in the State for control 

measures.’’ EPA intended these to be 

rebuttable presumptions. EPA 

established these presumptions at the 

time because of uncertainties regarding 

the emission inventories for these 

pollutants and the effectiveness of 

specific control measures in various 

regions of the country in reducing PM2.5

concentrations. EPA also left open the 

possibility for such regulation of VOC 

and ammonia in specific areas where 

that was necessary. 

The Court in its January 4, 2013, 

decision made reference to both section 

189(e) and 40 CFR 51.1002, and stated 

that, ‘‘In light of our disposition, we 

need not address the petitioners’ 

challenge to the presumptions in [40 

CFR 51.1002] that volatile organic 

compounds and ammonia are not PM2.5

precursors, as subpart 4 expressly 

governs precursor presumptions.’’ 

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

Elsewhere in the Court’s opinion, 

however, the Court observed: 

Ammonia is a precursor to fine particulate 

matter, making it a precursor to both PM2.5

and PM10. For a PM10 nonattainment area 

governed by subpart 4, a precursor is 

presumptively regulated. See 42 U.S.C. 

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

For a number of reasons, EPA believes 

that its proposed redesignation of 

Dayton area is consistent with the 

Court’s decision on this aspect of 

subpart 4. First, while the Court, citing 

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

area governed by subpart 4, a precursor 

is ‘presumptively regulated,’ ’’ the Court 

expressly declined to decide the specific 

challenge to EPA’s 1997 PM2.5

implementation rule provisions 

regarding ammonia and VOC as 

precursors. The Court had no occasion 

to reach whether and how it was 

substantively necessary to regulate any 

specific precursor in a particular PM2.5

nonattainment area, and did not address 

what might be necessary for purposes of 

acting upon a redesignation request. 

However, even if EPA takes the view 

that the requirements of subpart 4 were 

deemed applicable at the time the state 

submitted the redesignation request, 

and disregards the implementation 

rule’s rebuttable presumptions regarding 

ammonia and VOC as PM2.5 precursors, 

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 


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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 Dayton area has reduced VOC emissions 

through the implementation of various control 

programs including VOC Reasonably Available 

Control Technology regulations and various on-road 

and non-road motor vehicle control programs. 

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

Implementation Plans for California—San Joaquin 

Valley PM–10 Nonattainment Area; Serious Area 

Plan for Nonattainment of the 24-Hour and Annual 

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

(approving a PM10 attainment plan that impose 

controls on direct PM10 and NOX emissions and did 

not impose controls on SO2, VOC, or ammonia 

emissions). 

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

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

stationary sources of precursors. In the 

case of the Dayton area, EPA believes 

that doing so is consistent with 

proposing redesignation of the area for 

the 1997 PM2.5 standard. The Dayton 

area has attained the standard without 

any specific additional controls of VOC 

and ammonia emissions from any 

sources in the area. 

Precursors in subpart 4 are 

specifically regulated under the 

provisions of section 189(e), which 

requires, with important exceptions, 

control requirements for major 

stationary sources of PM10 precursors.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 ammonia and VOC. Thus 

we must address here whether 

additional controls of ammonia and 

VOC from major stationary sources are 

required under section 189(e) of subpart 

4 in order to redesignate the area for the 

1997 PM2.5 standard. As explained 

below, we do not believe that any 

additional controls of ammonia and 

VOC are required in the context of this 

redesignation. 

In the General Preamble, EPA 

discusses its approach to implementing 

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

With regard to precursor regulation 

under section 189(e), the General 

Preamble explicitly stated that control 

of VOCs under other CAA requirements 

may suffice to relieve a state from the 

need to adopt precursor controls under 

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

proposal proposes to determine that the 

SIP has met the provisions of section 

189(e) with respect to ammonia and 

VOCs as precursors. This proposed 

supplemental determination is based on 

our findings that (1) the Dayton area 

contains no major stationary sources of 

ammonia, and (2) existing major 

stationary sources of VOC are 

adequately controlled under other 

provisions of the CAA regulating the 

ozone NAAQS.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 area, which is 

attaining the 1997 annual PM2.5

standard, at present ammonia and VOC 

precursors from major stationary 

sources do not contribute significantly 

to levels exceeding the 1997 PM2.5

standard in the Dayton area. See 57 FR 

13539–42. 

EPA notes that its 1997 PM2.5

implementation rule provisions in 40 

CFR 51.1002 were not directed at 

evaluation of PM2.5 precursors in the 

context of redesignation, but at SIP 

plans and control measures required to 

bring a nonattainment area into 

attainment of the 1997 PM2.5 NAAQS. 

By contrast, redesignation to attainment 

primarily requires the area to have 

already attained due to permanent and 

enforceable emission reductions, and to 

demonstrate that controls in place can 

continue to maintain the standard. 

Thus, even if we regard the Court’s 

January 4, 2013, decision as calling for 

‘‘presumptive regulation’’ of ammonia 

and VOC for PM2.5 under the attainment 

planning provisions of subpart 4, those 

provisions in and of themselves do not 

require additional controls of these 

precursors for an area that already 

qualifies for redesignation. Nor does 

EPA believe that requiring Ohio to 

address precursors differently than they 

have already would result in a 

substantively different outcome. 

Although, as EPA has emphasized, its 

consideration here of precursor 

requirements under subpart 4 is in the 

context of a redesignation to attainment, 

EPA’s existing interpretation of subpart 

4 requirements with respect to 

precursors in attainment plans for PM10

contemplates that states may develop 

attainment plans that regulate only 

those precursors that are necessary for 

purposes of attainment in the area in 

question, i.e., states may determine that 

only certain precursors need be 

regulated for attainment and control 

purposes.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 Dayton area has 

already attained the 1997 PM2.5 NAAQS 

with its current approach to regulation 

of PM2.5 precursors, EPA believes that it 

is reasonable to conclude in the context 

of this redesignation that there is no 

need to revisit the attainment control 

strategy with respect to the treatment of 

precursors. Even if the Court’s decision 

is construed to impose an obligation, in 

evaluating this redesignation request, to 

consider additional precursors under 

subpart 4, it would not affect EPA’s 

approval here of Ohio’s request for 

redesignation of the Dayton area. In the 

context of a redesignation, the area has 

shown that it has attained the standard. 

Moreover, the state has shown and EPA 

is proposing that attainment in this area 

is due to permanent and enforceable 

emissions reductions on all precursors 

necessary to provide for continued 

attainment. It follows logically that no 

further control of additional precursors 

is necessary. Accordingly, EPA does not 

view the January 4, 2013, decision of the 

Court as precluding redesignation of the 

Dayton area to attainment for the 1997 

PM2.5 NAAQS at this time. 

In sum, even if Ohio were required to 

address precursors for the Dayton area 

under subpart 4 rather than under 

subpart 1, as interpreted in EPA’s 

remanded PM2.5 implementation rule, 

EPA would still conclude that the area 

had met all applicable requirements for 

purposes of redesignation in accordance 

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

iv. Maintenance Plan and Evaluation of 

Precursors 

A discussion of the impact of the 

Court’s decision on the maintenance 

plan required under sections 175A and 

107(d)(3)(E)(iv) can be found in section 

IV.A.4.d. 

b. The Dayton Area Has a Fully 

Approved Applicable SIP Under Section 

110(k) of the CAA 

Upon final approval of Ohio’s 

comprehensive 2005 and 2008 

emissions inventories, EPA will have 

fully approved the Ohio SIP for the 

Dayton area under section 110(k) of the 

CAA for all requirements applicable for 

purposes of redesignation. EPA may rely 

on prior SIP approvals in approving a 

redesignation request (See page 3 of the 

Calcagni memorandum; Southwestern 

Pennsylvania Growth Alliance v. 

Browner, 144 F.3d 984, 989–990 (6th 

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

(6th Cir. 2001)) plus any additional 

measures it may approve in conjunction 

with a redesignation action. See 68 FR 

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

passage of the CAA of 1970, Ohio has 

adopted and submitted, and EPA has 

fully approved, provisions addressing 

various required SIP elements under 

particulate matter standards. EPA is 

proposing to approve Ohio’s 2005 and 

2008 emissions inventories for the 

Dayton area as meeting the requirement 

of section 172(c)(3) of the CAA. No 

Dayton area SIP provisions are currently 


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11See Regulatory Impact Analysis—Control of Air 

Pollution from New Motor Vehicles: Tier 2 Motor 

Vehicle Emissions Standards and Gasoline Sulfur 

Control Requirements, December 1999, EPA420–R– 

99–023, p. IV–42. 

disapproved, conditionally approved, or 

partially approved. 

3. The Improvement in Air Quality Is 

Due to Permanent and Enforceable 

Reductions in Emissions Resulting From 

Implementation of the SIP and 

Applicable Federal Air Pollution 

Control Regulations and Other 

Permanent and Enforceable Reductions 

EPA finds that Ohio has demonstrated 

that the observed air quality 

improvement in the Dayton area is due 

to permanent and enforceable 

reductions in emissions resulting from 

implementation of the SIP, Federal 

measures, and other state-adopted 

measures. 

In making this showing, Ohio EPA 

has calculated the change in emissions 

between 2005, one of the years in the 

period during which the Dayton area 

monitored nonattainment, and 2008, 

one of the years in the period during 

which the Dayton area monitored 

attainment. The reduction in emissions 

and the corresponding improvement in 

air quality over this time period can be 

attributed to a number of regulatory 

control measures that the Dayton area 

and upwind areas have implemented in 

recent years. 

a. Permanent and Enforceable Controls 

Implemented 

The following is a discussion of 

permanent and enforceable measures 

that have been implemented in the area: 

i. Federal Emission Control Measures 

Reductions in fine particle precursor 

emissions have occurred statewide and 

in upwind areas as a result of Federal 

emission control measures, with 

additional emission reductions expected 

to occur in the future. Federal emission 

control measures include the following: 

Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards. 

These emission control requirements 

result in lower VOC, 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. The EPA has 

estimated that, by the time post-2009 

vehicles have entirely replaced pre-2009 

vehicles, the following vehicle NOX

emission reductions will have occurred 

nationwide: 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 to 

95 percent). Some of the emissions 

reductions resulting from new vehicle 

standards occurred during the 2008– 

2010 attainment period; however 

additional reductions will continue to 

occur throughout the maintenance 

period 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. Gasoline sold in the 

region including Ohio prior to 

implementation of the Tier 2 sulfur 

content limits had an average sulfur 

content of 276 ppm.11

Heavy-Duty Diesel Engine Rule. This 

rule, which EPA issued in July 2000, 

limited the sulfur content of diesel fuel 

beginning in 2004. A second phase took 

effect in 2007 which reduced fine 

particle emissions from heavy-duty 

highway engines and further reduced 

the highway diesel fuel sulfur content to 

15 ppm. The total program is estimated 

to achieve a 90 percent reduction in 

primary 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 content diesel. The 

reductions in fuel sulfur content 

occurred by the 2008–2010 attainment 

period. Some of the emissions 

reductions resulting from new vehicle 

standards occurred during the 2008– 

2010 attainment period, however 

additional reductions will continue to 

occur throughout the maintenance 

period as the fleet of older heavy duty 

diesel engines turns over. The reduction 

in fuel sulfur content also yielded an 

immediate reduction in sulfate particle 

emissions from all diesel vehicles. 

Nonroad Diesel Rule. In May 2004, 

EPA promulgated a new rule for large 

nonroad diesel engines, such as those 

used in construction, agriculture, and 

mining equipment, which established 

engine emission standards to be phased 

in between 2008 and 2014. The rule also 

required reductions to 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. 

The combined engine and fuel rules will 

reduce NOX and PM emissions from 

large nonroad diesel engines by over 90 

percent, compared to current nonroad 

engines using higher sulfur content 

diesel. The reduction in fuel sulfur 

content yielded an immediate reduction 

in sulfate particle emissions from all 

diesel vehicles. In addition, some 

emissions reductions from the new 

engine emission standards were realized 

over the 2008–2010 time period, 

although most of the reductions will 

occur over the maintenance period as 

the fleet of older nonroad diesel engines 

turns over. 

Nonroad Large Spark-Ignition Engine 

and Recreational Engine Standards. In 

November 2002, EPA promulgated 

emission standards for groups of 

previously unregulated nonroad 

engines. These engines include large 

spark-ignition engines such as those 

used in forklifts and airport groundservice equipment; recreational vehicles 

using spark-ignition engines such as offhighway motorcycles, all-terrain 

vehicles, and snowmobiles; and 

recreational marine diesel engines. 

Emission standards from large sparkignition engines were implemented in 

two tiers, with Tier 1 starting in 2004 

and Tier 2 in 2007. Recreational vehicle 

emission standards are being phased in 

from 2006 through 2012. Marine Diesel 

engine standards were phased in from 

2006 through 2009. With full 

implementation of all of the nonroad 

spark-ignition engine and recreational 

engine standards, an overall 72 percent 

reduction in VOC, 80 percent reduction 

in NOX and 56 percent reduction in 

carbon monoxide (CO) emissions are 

expected by 2020. Some of these 

emission reductions occurred by the 

2008–2010 attainment period and 

additional emission reductions will 

occur during the maintenance period as 

the fleet turns over. 

ii. Control Measures Implemented in 

Ohio and in Upwind Areas 

Given the significance of sulfates and 

nitrates in the Dayton area, the area’s air 

quality is strongly affected by regulation 

of SO2 and NOX emissions from power 

plants. 

NOX SIP Call. On October 27, 1998 

(63 FR 57356), EPA issued a NOX SIP 

Call requiring the District of Columbia 

and 22 states to reduce emissions of 

NOX. Affected states were required to 

comply with Phase I of the SIP Call 

beginning in 2004, and Phase II 

beginning in 2007. Emission reductions 

resulting from regulations developed in 

response to the NOX SIP Call are 

permanent and enforceable. 

CAIR and CSAPR. 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 to limit the interstate 

transport of these pollutants and the 

ozone and fine particulate matter they 

form in the atmosphere. See 76 FR 

70093. The D.C. Circuit initially vacated 

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

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


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remanded that rule to EPA without 

vacatur to preserve the environmental 

benefits provided by CAIR, North 

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

(D.C. Cir. 2008). 

On December 30, 2011, the D.C. 

Circuit issued an order addressing the 

status of CSAPR and CAIR in response 

to motions filed by numerous parties 

seeking a stay of CSAPR pending 

judicial review. In that order, the Court 

stayed CSAPR pending resolution of the 

petitions for review of that rule in EME 

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

11–1302 and consolidated cases). The 

Court also indicated that EPA was 

expected to continue to administer 

CAIR in the interim until judicial 

review of CSAPR was completed. 

As noted above, on August 21, 2012, 

the D.C. Circuit issued the decision in 

EME Homer City to vacate and remand 

CSAPR and ordered EPA to continue 

administering CAIR ‘‘pending . . . 

development of a valid replacement.’’ 

EME Homer City at 38. The D.C. Circuit 

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 certiorari 

and agreed to review the D.C. Circuit’s 

decision in EME Homer City. The 

Supreme Court’s grant of certiorari, by 

itself, does not alter the status of CAIR 

or CSAPR. At this time, CAIR remains 

in place. 

In light of these unique circumstances 

and for the reasons explained below, to 

the extent that attainment is due to 

emission reductions associated with 

CAIR, EPA is here determining that 

those reductions are sufficiently 

permanent and enforceable for purposes 

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

175A. 

As directed by the D.C. Circuit, CAIR 

remains in place and enforceable until 

EPA promulgates a valid replacement 

rule to substitute for CAIR. The Dayton 

SIP revision lists CAIR as a control 

measure that was adopted by the State 

in 2006 and required compliance by 

January 1, 2009. CAIR was thus in place 

and getting emission reductions when 

Dayton monitored attainment of the 

1997 annual PM2.5 standard during the 

2006–2008 time period. The qualityassured, certified monitoring data 

continues to show the area in 

attainment of the 1997 PM2.5 standard 

through 2012. 

To the extent Ohio is relying on CAIR 

in its maintenance plan to support 

continued attainment into the future, 

the directive from the D.C. Circuit in 

EME Homer City ensures that the 

reductions associated with CAIR will be 

permanent and enforceable for the 

necessary time period. EPA has been 

ordered by the Court to develop a new 

rule to address interstate transport to 

replace CSAPR, and the opinion makes 

clear that after promulgating that new 

rule EPA must provide states an 

opportunity to draft and submit SIPs to 

implement that rule. Thus, CAIR will 

remain in place until EPA has 

promulgated a final rule through a 

notice-and-comment rulemaking 

process, states have had an opportunity 

to draft and submit SIPs in response to 

it, EPA has reviewed the SIPs to 

determine if they can be approved, and 

EPA has taken action on the SIPs, 

including promulgating a FIP if 

appropriate. The Court’s clear 

instruction to EPA is that it must 

continue to administer CAIR until a 

valid replacement exists, and thus EPA 

believes that CAIR emission reductions 

may be relied upon until the necessary 

actions are taken by EPA and states to 

administer CAIR’s replacement. 

Furthermore, the Court’s instruction 

provides an additional backstop: By 

definition, any rule that replaces CAIR 

and meets the Court’s direction would 

require upwind states to have SIPs that 

eliminate any significant contributions 

to downwind nonattainment and 

prevent interference with maintenance 

in downwind areas. 

Further, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the D.C. Circuit emphasized that 

the consequences of vacating CAIR 

‘‘might be more severe now in light of 

the reliance interests accumulated over 

the intervening four years.’’ EME Homer 

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

reliance interests include the interests of 

states that reasonably assumed they 

could rely on reductions associated with 

CAIR which brought certain 

nonattainment areas into attainment 

with the NAAQS. If EPA were 

prevented from relying on reductions 

associated with CAIR in redesignation 

actions, states would be forced to 

impose additional, redundant 

reductions on top of those achieved by 

CAIR. EPA believes this is precisely the 

type of irrational result the Court sought 

to avoid by ordering EPA to continue 

administering CAIR. For these reasons 

also, EPA believes it is appropriate to 

allow states to rely on CAIR, and the 

existing emissions reductions achieved 

by CAIR, as sufficiently permanent and 

enforceable for regulatory purposes such 

as redesignations. Following 

promulgation of the replacement rule 

for CSAPR, EPA will review existing 

SIPs as appropriate to identify whether 

there are any issues that need to be 

addressed. 

b. Emission Reductions 

Ohio developed emissions inventories 

for NOX, primary PM2.5, and SO2 for 

2005, a year that the Dayton area 

monitored nonattainment of the 1997 

annual PM2.5 standard, and 2008, a year 

the area monitored attainment of the 

standard. The emission inventories were 

developed with the assistance of the 

Lake Michigan Air Directors Consortium 

(LADCO). The 2005 nonattainment 

inventory was developed as described 

below. Point source emissions for 2005 

were compiled by Ohio EPA using 

source specific data reported by 

facilities through the State’s STARShip 

database program. The data are reported 

by facilities annually and include 

emissions, process rates, operating 

schedules, emissions control data and 

other relevant information. Ohio EPA 

quality assured the database files and 

submitted the data to LADCO for 

emissions processing through the 

Emissions Modeling System (EMS). 

LADCO used the EGU inventory 

compiled by EPA’s Acid Rain Program, 

based on facility reported emissions as 

measured by continuous emissions 

monitors. 

Area source sector emissions were 

calculated using surrogate emissions 

factors based on energy usage, 

population, employment records, or 

other reliable data. Ohio EPA used 

Emission Inventory improvement 

Program methodologies or selected 

other methodologies which are shared 

by other states. The decision of which 

methodology to use was largely based 

on Ohio’s data availability. 

Nonroad source sector emissions 

estimates were generated using EPA’s 

National Mobile Inventory Model 

(NMIM), with the following 

modifications: Emission factors were 

added for diesel tampers/rammers; the 

PM2.5 ratios in the SCC table were 

revised to correctly calculate PM2.5

diesel emissions; and, gasoline 

parameters, including Reid Vapor 

Pressure (RVP), Oxygenate content and 

sulfur content, were revised using 

updates provided by the state and E.H. 

Pechan and Associates. Marine, aircraft 

and rail nonroad emissions were 

calculated separately. Contractors were 

employed by LADCO to estimate 

emissions for commercial marine 

vessels and railroads. Ohio developed 

aircraft emissions estimates using 

AP–42 emission factors and landing and 

take-off data provided by the Federal 

Aviation Administration. 

Onroad mobile source emissions 

estimates were developed using the 

EPA’s MOVES2010 model. The 2008 

attainment year inventory was 


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developed as follows. Point source 

emissions for 2008 were compiled from 

Ohio’s STARShip database. Onroad 

emissions projections were based on 

EPA’s MOVES2010 model. Area and 

nonroad emissions were grown from the 

2005 inventory using LADCO’s growth 

factors. 

The state aggregated the emission 

inventories to obtain the total emissions 

for each category and the grand total 

emissions for the Dayton area. The 

emission inventories for the Dayton area 

by pollutant are presented in Tables 2 

to 4. The data in Table 2 indicates PM2.5

emission decreased by 170 tons per year 

(tpy) between 2005 and 2008. Similarly, 

the Table 3 data indicates a 7,022 tpy 

reduction in NOX emissions and Table 

4 shows a 1,415 tpy decrease in SO2

emission from 2005 to 2008. 

4. The Area Has a Fully Approved 

Maintenance Plan Pursuant to Section 

175A of the CAA. 

In conjunction with Ohio’s requests to 

redesignate the Dayton nonattainment 

area to attainment status, Ohio EPA 

submitted SIP revisions to provide for 

maintenance of the 1997 annual PM2.5

NAAQS in the area through 2022. 

a. What is required in a maintenance 

plan? 

Section 175A of the CAA sets forth 

the required elements of a maintenance 

plan for areas seeking redesignation 

from nonattainment to attainment. 

Under section 175A, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least ten 

years after EPA approves a 

redesignation to attainment. Eight years 

after redesignation, the state must 

submit a revised maintenance plan 

which demonstrates that attainment will 

continue to be maintained for ten years 

following the initial ten year 

maintenance period. To address the 

possibility of future NAAQS violations, 

the maintenance plan must contain 

contingency measures with a schedule 

for implementation as EPA deems 

necessary to assure prompt correction of 

any future PM2.5 violations. 

The September 4, 1992, John Calcagni 

memorandum provides additional 

guidance on the content of a 

maintenance plan. The memorandum 

states that a maintenance plan should 

address the following items: The 

attainment emissions inventories, a 

maintenance demonstration showing 

maintenance for the ten years of the 

maintenance period, a commitment to 

maintain the existing monitoring 

network, factors and procedures to be 

used for verification of continued 

attainment of the NAAQS, and a 

contingency plan to prevent or correct 

future violations of the NAAQS. 

b. Attainment Inventory 

Ohio developed emissions inventories 

for NOX, PM2.5, and SO2 for 2008, a year 

the area monitored attainment of the 

1997 annual PM2.5 standard, as 

described in section IV.A.3.b. The 

attainment level of emissions is 

summarized in Tables 2 to 4. 

c. Demonstration of Maintenance 

Along with the redesignation 

requests, Ohio EPA submitted revisions 

to the Ohio PM2.5 SIP to include 

maintenance plans for the Dayton area, 

as required by section 175A of the CAA. 

Section 175A requires a state seeking 

redesignation to attainment to submit a 

SIP revision to provide for the 

maintenance of the NAAQS in the area 

‘‘for at least 10 years after the 

redesignation.’’ EPA has interpreted this 

as a showing of maintenance ‘‘for a 

period of ten years following 

redesignation’’ in the Calcagni 

Memorandum, p. 9. Where the 

emissions inventory method of showing 

maintenance is used, its purpose is to 

show that emissions during the 

maintenance period will not increase 

over the attainment year inventory. 

Calcagni Memorandum, pp. 9–10. 

Ohio’s maintenance plan submissions 

expressly document that the Dayton 

area’s emissions inventories will remain 

below the attainment year inventories 

through 2022. In addition, for the 

reasons set forth below, EPA believes 

that Ohio’s submission, in conjunction 

with additional supporting information, 

further demonstrating that the area will 

continue to maintain the PM2.5 standard 

at least through 2023. Thus, if EPA 

finalizes its proposed approval of the 

redesignation requests and maintenance 

plans in 2013, it will be based on a 

showing, in accordance with section 

175A, that Ohio’s maintenance plans 

provide for maintenance for at least ten 

years after redesignation. 

Ohio’s plans demonstrate 

maintenance of the PM2.5 NAAQS 

through 2022 by showing that current 

and future emissions of NOX, PM2.5, and 

SO2 for the Dayton area remain at or 

below attainment year emission levels. 

A maintenance demonstration need not 

be based on modeling. See Wall v. EPA, 

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

v. EPA, 375 F. 3d 537 (7th Cir. 2004). 

See also 66 FR 53094, 53099–53100 

(October 19, 2001), 68 FR 25413, 25430– 

25432 (May 12, 2003). As discussed 

below, a comparison of current and 

future VOC and ammonia emissions 

show ammonia emissions are expected 

to remain relatively constant. In 

contrast, VOC emissions are projected to 

decline significantly. The VOC and 

ammonia emission projections further 

support a finding that the Dayton area 

will continue to maintain the standard. 

Ohio is using PM2.5, NOX, and SO2

emissions inventory projections for the 

years 2015 and 2022 to demonstrate 

maintenance. The projected emissions 

were estimated by Ohio with assistance 

from LADCO. 

LADCO has developed growth and 

control files for point, area, and nonroad 

categories. These files were used along 

with LADCO’s 2009 and 2018 emission 

inventories to develop the 2015 and 

2022 emissions estimates. Onroad 

emissions projections were made by 

using the MOVES model. 

As discussed in section IV.3.a., many 

of the control programs that helped to 

bring the area into attainment of the 

standard will continue to achieve 

additional emission reductions over the 

maintenance period. These control 

programs include Tier 2 emission 

standards for vehicles and gasoline 

sulfur standards, the heavy-duty diesel 

engine rule, the nonroad diesel rule, and 

the nonroad large spark-ignition engine 

and recreation engine standards. In 

addition, implementation of CAIR was 

assumed in the projections. The state 

then aggregated the emission 

inventories to obtain the total emissions 

for each category and the grand total 

emissions for the Dayton area. The 

emission inventories for the Dayton area 

by pollutant are presented in Tables 2 

to 4. 

TABLE 2—COMPARISON OF 2005, 2008, 2015, AND 2022 DIRECT PM2.5 EMISSION TOTALS BY COUNTY (TPY) FOR THE

DAYTON AREA

County 

Direct PM2.5

2005 

Base 

2008 

Attainment 2015 2022 Maintenance 

Net change 

2008–2022 

Clark ..................................................................................... 377.44 340.97 248.54 198.10 ¥142.87 


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TABLE 2—COMPARISON OF 2005, 2008, 2015, AND 2022 DIRECT PM2.5 EMISSION TOTALS BY COUNTY (TPY) FOR THE

DAYTON AREA—Continued 

County 

Direct PM2.5

2005 

Base 

2008 

Attainment 2015 2022 Maintenance 

Net change 

2008–2022 

Greene ................................................................................. 491.15 458.91 372.82 336.44 ¥122.47 

Montgomery ......................................................................... 1,516.57 1,415.40 1,115.14 968.50 ¥446.90 

Total .............................................................................. 2,385 2,215 1,737 1,503 ¥712 

TABLE 3—COMPARISON OF 2005, 2008, 2015, AND 2022 NOX EMISSION TOTALS BY COUNTY (TPY) FOR THE DAYTON

AREA

County 

NOX

2005 

Base 

2008 

Attainment 2015 2022 Maintenance 

Net change 

2008–2022 

Clark ..................................................................................... 7,327.18 6,159.66 3,630.30 2,080.20 ¥4,079.46 

Greene ................................................................................. 9,448.97 8,459.44 6,140.94 5,014.57 ¥3,444.87 

Montgomery ......................................................................... 27,364.92 22,499.86 14,004.55 8,762.54 ¥13,737.3 

Total .............................................................................. 44,141 37,119 23,776 15,857 ¥21,262 

TABLE 4—COMPARISON OF 2005, 2008, 2015, AND 2022 SO2 EMISSION TOTALS BY COUNTY (TPY) FOR THE DAYTON

AREA

County 

SO2

2005 

Base 

2008 

Attainment 2015 2022 Maintenance 

Net change 

2008–2022 

Clark ..................................................................................... 278.81 168.87 121.64 109.97 ¥58.90 

Greene ................................................................................. 2,344.19 2,278.89 2,352.21 2,397.31 +118.42 

Montgomery ......................................................................... 8,653.40 7,413.46 7,360.15 7,053.08 ¥360.38 

Total .............................................................................. 11,276 9,861 9,834 9,560 ¥301 

The 2015 and 2022 emission 

inventories indicate that the emission 

reductions are expected to continue. A 

712 tpy, or 32 percent, reduction in 

PM2.5 emissions between 2008 and 2022 

is expected. The 21,262 tpy NOX

emission decrease is a 57 percent 

reduction, while the 301 tpy SO2

decrease equates to a 3 percent 

reduction, again between 2008 and 

2022. These rates of decline are 

consistent with monitored and projected 

air quality trends, emissions reductions 

achieved through emissions controls 

and regulations that will remain in 

place beyond 2023. Furthermore, fleet 

turnover in onroad and nonroad 

vehicles that will continue to occur after 

2022 will continue to provide additional 

significant emission reductions. 

In addition, available air quality 

modeling analyses show continued 

maintenance of the standard during the 

maintenance period. The current air 

quality design value for the Dayton area 

is 12.3 mg/m3 based on 2010 to 2012 air 

quality data, which is well below the 

1997 annual PM2.5 NAAQS of 15 mg/m3. 

Moreover, the modeling analysis 

conducted for EPA’s regulatory impact 

analysis (RIA) for the 2012 PM2.5

NAAQS indicates that the design value 

for this area is expected to continue 

through 2020. In the RIA analysis, the 

2020 modeled design value for the 

Dayton area is 9.5 mg/m3. Given that 

precursor emissions are projected to 

decrease through 2022, it is reasonable 

to conclude that monitored PM2.5 levels 

in this area will also continue to 

decrease through 2022. 

Based on the information summarized 

above, Ohio has adequately 

demonstrated maintenance of the PM2.5

standard for a period extending ten 

years from the date that EPA may be 

expected to complete rulemaking on the 

State’s redesignation request. 

d. Maintenance Plan and Evaluation of 

Precursors 

After evaluating the effect of the 

Court’s remand of EPA’s 

implementation rule, a rule that 

included presumptions against 

consideration of VOC and ammonia as 

PM2.5 precursors, EPA in this proposal 

is also considering the impact of the 

decision on the maintenance plan 

required under sections 175A and 

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

notes that the area has attained the 1997 

PM2.5 standard and that the state has 

shown that attainment of that standard 

is due to permanent and enforceable 

emission reductions. 

Based on its review of Ohio’s 

maintenance plan and related 

information, EPA believes that the 

primary influences on future air quality 

in the Dayton area will be emissions of 

NOX, directly emitted PM2.5, and SO2. 

EPA therefore proposes to determine 

that Ohio’s maintenance plan shows 

continued maintenance of the standard 

by tracking the levels of the precursors 

whose control brought about attainment 

of the 1997 PM2.5 standard in the Dayton 

area. Nevertheless, pursuant to the 

Court’s January 4, 2013, decision, EPA 

is further assessing the potential role of 

VOC and ammonia in achieving 

continued maintenance in this area. As 

explained below, based upon 

documentation provided by the State 


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12These emissions estimates were taken from the 

emissions inventories developed for the RIA for the 

2012 PM2.5 NAAQS. Values were rounded on the 

table following making the calculations. 

and supporting information, EPA 

believes that the prospective trends in 

emissions of VOC and ammonia are 

consistent with a finding of continued 

maintenance of the standard in the 

Dayton area. 

First, as noted above in EPA’s 

discussion of section 189(e), VOC 

emission levels in this area have 

historically been well controlled under 

SIP requirements related to ozone and 

other pollutants. Second, total ammonia 

emissions throughout the Dayton area 

are modest, estimated to be about 27,250 

tpy. See Table 5. Third, as described 

below, available information shows that 

no precursor, including VOC and 

ammonia, is expected to increase over 

the maintenance period so as to 

interfere with or undermine the Ohio’s 

maintenance demonstration. 

Ohio’s maintenance plan shows that 

emissions of direct PM2.5, SO2, and NOX

are projected to decrease by 712 tpy, 301 

tpy, and 21,262 tpy, respectively, over 

the maintenance period. See Tables 2 to 

4. In addition, emissions inventories 

used in the RIA for the 2012 PM2.5

NAAQS show that VOC and ammonia 

emissions are projected to decrease by 

124 tpy and 8,778 tpy, respectively 

between 2007 and 2020 as shown on 

Table 5. While the RIA emissions 

inventories are only projected out to 

2020, there is no reason to believe that 

this downward trend would not 

continue through 2023. Given that the 

Dayton area is already attaining the 

1997 PM2.5 NAAQS even with the 

current level of emissions from sources 

in the area, the downward trend of 

emissions inventories would be 

consistent with continued attainment. 

Indeed, projected emissions reductions 

for the precursors that Ohio is 

addressing for purposes of the 1997 

PM2.5 NAAQS indicate that the area 

should continue to attain the NAAQS 

following the control strategy that the 

state has already elected to pursue. Even 

if VOC and ammonia emissions were to 

increase unexpectedly between 2020 

and 2022, the overall emissions 

reductions projected in direct PM2.5,

SO2, and NOX would be sufficient to 

offset any increases. For these reasons, 

EPA believes that local emissions of all 

of the potential PM2.5 precursors will 

not increase to the extent that they will 

cause monitored PM2.5 levels to violate 

the 1997 PM2.5 standard during the 

maintenance period. 

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

AREA 12

County 

Ammonia VOC 

2007 2020 Net change 

2007–2020 2007 2020 Net change 2007–2020 

Clark ......................................................... 808 793 ¥15 4,771 3,142 ¥1,629 

Greene ..................................................... 537 525 ¥13 4,052 2,749 ¥1,303 

Montgomery ............................................. 748 651 ¥96 18,421 12,574 ¥5,846 

Total .................................................. 2,093 1,969 ¥124 27,244 18,465 ¥8,778 

Thus, EPA believes that there is 

ample justification to conclude that the 

Dayton area should be redesignated, 

even taking into consideration the 

emissions of other precursors 

potentially relevant to PM2.5. After 

consideration of the D.C. Circuit’s 

January 4, 2013, decision, and for the 

reasons set forth in this notice, EPA 

proposes to approve Ohio’s 

maintenance plan. 

e. Monitoring Network 

Ohio currently operates three 

monitors for purposes of determining 

attainment with the PM2.5 standards in 

the Dayton area. Ohio EPA has 

committed to continue to operate and 

maintain these monitors and will 

consult with EPA prior to making any 

changes to the existing monitoring 

network. Ohio EPA remains obligated to 

continue to quality assure monitoring 

data in accordance with 40 CFR part 58 

and enter all data into the AQS in 

accordance with Federal guidelines. 

f. Verification of Continued Attainment 

Continued attainment of the PM2.5

NAAQS in the Dayton area depends, in 

part, on Ohio’s efforts toward tracking 

indicators of continued attainment 

during the maintenance period. Ohio’s 

plans for verifying continued attainment 

of the 1997 annual PM2.5 standard in the 

Dayton area consists of continued 

ambient PM2.5 monitoring in accordance 

with the requirements of 40 CFR part 

58. Ohio will also continue to develop 

and submit periodic emission 

inventories as required by the Federal 

Consolidated Emissions Reporting Rule 

(codified at 40 CFR 51 subpart A) to 

track future levels of emissions. 

g. Contingency Plan 

The contingency plan provisions are 

designed to promptly correct or prevent 

a violation of the NAAQS that might 

occur after redesignation of an area to 

attainment. Section 175A of the CAA 

requires that a maintenance plan 

include such contingency measures as 

EPA deems necessary to ensure that the 

state will promptly correct a violation of 

the NAAQS that occurs after 

redesignation. The maintenance plan 

should identify the contingency 

measures to be adopted, a schedule and 

procedure for adoption and 

implementation of the contingency 

measures, and a time limit for action by 

the state. The state should also identify 

specific indicators to be used to 

determine when the contingency 

measures need to be adopted and 

implemented. The maintenance plan 

must include a requirement that the 

state will implement all measures with 

respect to control of the pollutant(s) that 

were contained in the SIP before 

redesignation of the area to attainment. 

See section 175A(d) of the CAA. 

As required by section 175A of the 

CAA, Ohio has adopted contingency 

plans for the Dayton area to address 

possible future PM2.5 air quality 

problems. Contingency provisions are 

measures that can be implemented to 

prevent or promptly correct a violation 

of the standard. The state set a ‘‘warning 

level’’ for when an annual mean of 15.5 

mg/m3 or greater occurs. This level 

requires analyzing the ambient 

concentration trend within 12 months of 

the warning level triggering calendar 

year’s end. 

If the annual value trend is rising, 

control measures to reverse the rising 

trend are implemented. An ‘‘action 

level’’ response is triggered whenever 

the two year average is 15.0 mg/m3 or 


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13These ammonia and VOC emissions 

inventories vary from the inventories presented on 

Table 5 in section IV.A.4.d. because cover different 

time periods, only 2007 versus 2007 and 2008. 

greater and whenever a violation occurs. 

This level response requires the state, 

along with the Regional Air Pollution 

Control Agency, to determine the 

additional control measures to assure 

future attainment. The controls 

measures are to be in place within 18 

months from the end of the calendar 

year prompting the action level. 

Ohio provided a list of potential 

contingency provisions in its 

maintenance plan. It listed diesel 

emission reductions, alternative fuels, 

fleet diesel retrofit programs, tighter 

PM2.5, SO2, and NOX emission offsets for 

new and modified major sources, 

upgraded wet suppression at scrap 

yards and at concrete manufacturing 

facilities, and additional NOX RACT 

measures. Other controls measures may 

also be implemented. If necessary, Ohio 

will select control measures to ensure 

the ambient PM2.5 concentrations 

remain in attainment with the standard. 

h. Provisions for Future Updates of the 

Annual PM2.5 Maintenance Plan 

As required by section 175A(b) of the 

CAA, Ohio commits to submit to EPA 

updated maintenance plans eight years 

after redesignation of the Dayton area to 

attainment of the 1997 annual PM2.5

standard to cover an additional ten year 

period beyond the initial ten year 

maintenance period. As required by 

section 175A of the CAA, Ohio has 

committed to retain the control 

measures contained in the SIP prior to 

redesignation, and to submit to EPA for 

approval as a SIP revision, any changes 

to its rules or emission limits applicable 

to SO2, NOX, or direct PM2.5 sources as 

required for maintenance of the 1997 

annual PM2.5 standard in the Dayton 

area. 

EPA has concluded that the 

maintenance plan adequately addresses 

the five basic components of a 

maintenance plan: Attainment 

inventory, maintenance demonstration, 

monitoring network, verification of 

continued attainment, and a 

contingency plan. 

B. Comprehensive Emissions Inventories 

Section 173(c)(3) of the CAA requires 

areas to submit a comprehensive, 

accurate and current emissions 

inventory. As part of the redesignation 

request, Ohio submitted 2005 and 2008 

emissions inventories for NOX, primary 

PM2.5, and SO2 on June 1, 2011. These 

emission inventories are discussed in 

section IV.A.4.c. and the data are shown 

in Tables 2 to 4. 

On April 30, 2013, Ohio 

supplemented its emissions inventory 

information for direct PM2.5, NOX, and 

SO2 with 2007/2008 emissions 

inventories for ammonia and VOC. The 

additional emissions inventory 

information provided by Ohio addresses 

emissions of VOC and ammonia from 

the general source categories of point 

sources, area sources, onroad mobile 

sources, and nonroad mobile sources. 

The emissions inventories were based 

upon information generated by LADCO 

in conjunction with its member states. 

As with its inventories for NOX, 

directly emitted PM2.5, and SO2, Ohio’s 

inventories for point source emissions 

of VOC and ammonia were based largely 

on LADCO runs with the EMS model 

using data provided by the State of 

Ohio. The point source data supplied by 

the State was obtained from facility 

emissions reporting. 

For area sources inventories for VOC 

and ammonia, again as with the 

inventories for NOX, PM2.5, and SO2, 

LADCO ran the EMS model using the 

2008 National Emissions Inventory 

(NEI) data provided by Ohio. LADCO 

followed Eastern Regional Technical 

Advisory Committee (ERTAC) 

recommendations on area sources when 

preparing the data. Agricultural 

ammonia emissions were not taken from 

NEI; instead emissions were based on 

Carnegie Mellon University’s Ammonia 

Emission Inventory for the Continental 

United States (CMU). Specifically, the 

CMU 2002 annual emissions were 

grown to reflect 2007 conditions. A 

process-based ammonia emissions 

model developed for LADCO was then 

used to develop temporal factors to 

reflect the impact of average 

meteorology on livestock emissions. 

Non-road mobile source emissions of 

VOC and ammonia, similar to the other 

pollutants, were estimated using the 

NMIM2008 emissions model. LADCO 

also accounted for three other non-road 

categories not covered by the NMIM 

model: Commercial marine vessels, 

aircraft, and railroads. Marine emissions 

were based on reports prepared by 

Environ entitled ‘‘LADCO Nonroad 

Emissions Inventory Project for 

Locomotive, Commercial Marine, and 

Recreational Marine Emission Sources, 

Final Report, December 2004’’ and 

‘‘LADCO 2005 Commercial Marine 

Emissions, Draft, March, 2, 2007.’’ 

Aircraft emissions were provided by 

Ohio and calculated using AP–42 

emission factors and landing and takeoff data provided by the Federal 

Aviation Administration. Rail emissions 

were based on the 2008 inventory 

developed by ERTAC. On-road mobile 

source emissions were generated using 

EPA’s MOVES2010a emissions model. 

EPA notes that the emissions 

inventory developed by LADCO is 

documented in ‘‘Regional Air Quality 

Analyses for Ozone, PM2.5, and Regional 

Haze: Base C Emissions Inventory’’ 

(September 12, 2011). EPA has 

concluded that the 2007/2008 ammonia 

and VOC emissions inventories 

provided by Ohio are complete and as 

accurate as possible given the input data 

available for the relevant source 

categories. Ohio submitted an 2007/ 

2008 ammonia inventory of 2,286 tpy 

and a 25,881 tpy VOC 2007/2008 

inventory.13 EPA also believes that these 

inventories provide information about 

VOC and ammonia as PM2.5 precursors 

in the context of evaluating 

redesignation of the Dayton area under 

subpart 4. 

Therefore, we are proposing to 

approve the ammonia and VOC 

emissions inventories submitted by 

Ohio in April 2013, in conjunction with 

the NOX, direct PM2.5, and SO2

emissions inventories submitted in June 

2011, as fully meeting the 

comprehensive inventory requirement 

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

Dayton area for the 1997 annual PM2.5

standard. 

C. Motor Vehicle Emission Budgets 

(MVEBs) 

1. How are MVEBs developed? 

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 for 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. See the 

September 27, 2011, notice of direct 

final approval for a more complete 

discussion of MVEBs. (76 FR 59512). 

Under section 176(c) of the CAA, 

transportation plans and transportation 

improvement programs (TIPs) must be 


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14The 2004 rulemaking addressed most of the 

transportation conformity requirements that apply 

in PM2.5 nonattainment and maintenance areas. The 

2005 conformity rule included provisions 

addressing treatment of PM2.5 precursors in MVEBs. 

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

provisions were challenged in the NRDC case, EPA 

also notes that the Court declined to address 

challenges to EPA’s presumptions regarding PM2.5

precursors in the PM2.5 implementation rule. NRDC 

v. EPA, at 27, n. 10. 

evaluated to determine if they conform 

with the area’s SIP. Conformity to the 

SIP means that transportation activities 

will not cause new air quality 

violations, worsen existing air quality 

violations, or delay timely attainment of 

the NAAQS or any required interim 

milestone. If a transportation plan or 

TIP does not conform, most new 

transportation projects that would 

expand the capacity of roadways cannot 

go forward. Regulations at 40 CFR part 

93 set forth EPA policy, criteria, and 

procedures for demonstrating and 

assuring conformity of such 

transportation activities to a SIP. 

When reviewing SIP revisions 

containing MVEBs, including 

attainment strategies, rate-of-progress 

plans, and maintenance plans, EPA 

must affirmatively find ‘‘adequate’’ or 

approve for use in determining 

transportation conformity before the 

MVEBs can be used. Once EPA 

affirmatively approves or finds the 

submitted MVEBs to be adequate for 

transportation conformity purposes, the 

MVEBs must be used by state and 

Federal agencies in determining 

whether transportation plans and TIPs 

conform to the SIP as required by 

section 176(c) of the CAA. EPA’s 

substantive criteria for determining the 

adequacy of MVEBs are set out in 40 

CFR 93.118(e)(4). Additionally, to 

approve a motor vehicle emissions 

budget EPA must complete a thorough 

review of the SIP, in this case the PM2.5

maintenance plan, and conclude that 

the SIP will achieve its overall purpose, 

in this case providing for maintenance 

of the 1997 annual PM2.5 standard. 

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. The process for 

determining the adequacy of submitted 

SIP MVEBs is codified at 40 CFR 93.118. 

2. What are safety margins? 

A ‘‘safety margin’’ is the difference 

between the attainment level of 

emissions from all sources and the 

projected level of emissions from all 

sources in the maintenance plan. As 

shown in Table 3, NOX emissions in the 

Dayton area are projected to have safety 

margins of 13,343 tpy and 21,262 tpy in 

2015 and 2022, respectively (the 

difference between the attainment year, 

2008, emissions and the projected 2015 

and 2022 emissions for all sources in 

the Dayton area). Table 2 shows direct 

PM2.5 emissions in the Dayton area are 

projected to have a safety margin of 

4479 tpy and 712 tpy in 2015 and 2022, 

respectively. While, SO2 emissions as 

shown on Table 4 are projected to 

decrease and produce safety margins of 

27 tpy in 2015 and 301 tpy in 2022. 

Even if emissions reached the full level 

of the safety margin, the area would still 

demonstrate maintenance since 

emission levels would equal those in 

the attainment year. 

The transportation conformity rule 

allows areas to allocate all or a portion 

of a ‘‘safety margin’’ to the area’s motor 

vehicle emissions budgets (40 CFR 

92.124(a)). 

3. What are the MVEBs for the Dayton 

area? 

The maintenance plan revision 

submitted by Ohio for the Dayton area 

contains primary PM2.5 and NOX

MVEBs for the area for the years 2015 

and 2022. 

Ohio developed estimates for onroad 

mobile sources for the three counties in 

the Dayton area for 2005, 2008, 2015, 

and 2022. Ohio then summed the 

emissions for the Dayton area as shown 

on Table 6. 

TABLE 6—ONROAD MOBILE SOURCE EMISSIONS FOR THE DAYTON AREA

[tpy] 

2005 2008 2015 2022 

PM2.5 ................................................................................................................ 871.08 724.75 351.68 227.24 

NOX .................................................................................................................. 28,056.27 22,653.69 11,187.43 5,452.73 

SO2 .................................................................................................................. 423.66 131.47 54.96 54.13 

The transportation conformity rule 

allows areas to allocate all or a portion 

of a ‘‘safety margin’’ to the area’s motor 

vehicle emissions budgets (40 CFR 

93.124(a)). Ohio is not requesting 

allocation to the MVEBs of the entire 

available safety margins reflected in the 

demonstration of maintenance. 

Therefore, even though the State has 

submitted MVEBs that exceed the 

projected onroad mobile source 

emissions for 2015 and 2022 contained 

in the demonstration of maintenance, 

the increase in onroad mobile source 

emissions that can be considered for 

transportation conformity purposes is 

well within the safety margins of the 

PM2.5 maintenance demonstration. 

Further, once allocated to mobile 

sources, these safety margins will not be 

available for use by other sources. 

Ohio did not provide emission 

budgets for SO2, VOCs, and ammonia 

because it concluded, consistent with 

the presumptions regarding these 

precursors in the conformity rule at 40 

CFR 93.102(b)(2)(v), which predated 

and was not disturbed by the litigation 

on the 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 PM2.5 NAAQS in 

July 2004 and May 2005 (69 FR 40004, 

July 1, 2004 and 70 FR 24280, May 6, 

2005, respectively). Those actions were 

not part of the final rule recently 

remanded to EPA by the Court of 

Appeals for the District of Columbia in 

NRDC v. EPA, No. 08–1250 (Jan. 4, 

2013), in which the Court remanded to 

EPA the implementation rule for the 

PM2.5 NAAQS because it concluded that 

EPA must implement that NAAQS 

pursuant to the PM-specific 

implementation provisions of subpart 4 

of part D of title I of the CAA, rather 

than solely under the general provisions 

of subpart 1. That decision does not 

affect EPA’s proposed approval of the 

Dayton MVEBs. 

First, as noted above, EPA’s 

conformity rule implementing the 1997 

PM2.5 NAAQS was a separate action 

from the overall PM2.5 implementation 

rule addressed by the Court and was not 

considered or disturbed by the decision. 

Therefore, the conformity regulations 

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

addition, as discussed in section III.B., 

the Dayton area is attaining the 1997 

annual standard for PM2.5 with a 2009– 

2011 design value of 12.9 mg/m3, which 


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is well below the annual PM2.5 NAAQS 

of 15 mg/m3. The modeling analysis 

conducted for the RIA for the 2012 PM 

NAAQS indicates that the design value 

for this area is expected to continue to 

decline through 2020. Further, Ohio’s 

maintenance plan shows continued 

maintenance through 2022 by 

demonstrating that NOX, SO2, and direct 

PM2.5 emissions continue to decrease 

through the maintenance period. For 

VOC and ammonia, RIA inventories for 

2007 and 2020 show that both onroad 

and total emissions for these pollutants 

are expected to decrease, supporting the 

State’s conclusion, consistent with the 

presumptions regarding these 

precursors in the conformity rule, that 

emissions of these precursors from 

motor vehicles are not significant 

contributors to the area’s PM2.5 air 

quality problem and the MVEBs for 

these precursors are unnecessary. The 

onroad VOC emissions are expected to 

go from 11,156 to 4,598 tpy and 

ammonia emissions are projected to 

decline from 430 to 240 tpy. With regard 

to SO2, the 2005 final conformity rule 

(70 FR 24280) based its presumption 

concerning onroad SO2 motor vehicle 

emissions budgets on emissions 

inventories that show that SO2

emissions from onroad sources 

constitute a ‘‘de minimis’’ portion of 

total SO2 emissions. As the emissions 

data on Tables 4 and 6 show, onroad 

emissions in 2022 are less than 0.6 

percent of total SO2 emissions in the 

area. 

The availability of the SIP 

submissions with these 2015 and 2022 

MVEBs was announced for public 

comment on EPA’s Adequacy Web site 

on October 6, 2011, for the 1997 annual 

PM2.5 standard at: http://www.epa.gov/ 

otaq/stateresources/transconf/ 

currsips.htm. The EPA public comment 

periods on adequacy of the 2015 and 

2022 MVEBs for the Dayton area closed 

on November 7, 2011. No adverse 

comments on the submission were 

received during the adequacy comment 

period. 

EPA has reviewed the submitted 

budgets for 2015 and 2022, including 

the added safety margins using the 

conformity rule’s adequacy criteria 

found at 40 CFR 93.118(e)(4) and the 

conformity rule’s requirements for 

safety margins found at 40 CFR 

93.124(a). EPA has determined that the 

area can maintain attainment of the 

1997 annual PM2.5 NAAQS for the 

relevant maintenance period with 

onroad mobile source emissions at the 

levels of the MVEBs since total 

emissions will still remain under 

attainment year emission levels. EPA is 

therefore proposing to approve the 

MVEBs submitted by Ohio for use in 

determining transportation conformity 

in the Dayton area. 

V. Summary of Proposed Actions 

EPA is proposing to determine that 

the Dayton area is attaining the 1997 

annual PM2.5 NAAQS and that the area 

has met the requirements for 

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

of the CAA. EPA is thus proposing to 

approve the requests from Ohio EPA to 

change the legal designations of the 

Dayton area from nonattainment to 

attainment for the 1997 annual PM2.5

standard. EPA is proposing to approve 

Ohio’s PM2.5 maintenance plan for the 

Dayton area as a revision to the Ohio 

SIP because the plan meets the 

requirements of section 175A of the 

CAA. EPA is proposing to approve the 

2005 and 2008 NOX, direct PM2.5, SO2

emission inventories along with the 

2007/2008 ammonia and VOC emissions 

inventories as meeting the 

comprehensive emissions inventory 

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

CAA. EPA is also proposing to find 

adequate and approve the MOVESbased NOX and direct PM2.5 2015 and 

2022 MVEBs for the Dayton area for 

transportation conformity purposes. 

These MVEBs will be used in future 

transportation conformity analyses for 

the area. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

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

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

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, these proposed 

actions do not impose additional 

requirements beyond those imposed by 

state law and the CAA. For that reason, 

these proposed actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

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

• are not significant regulatory 

actions subject to Executive Order 

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

• are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because a 

determination of attainment is an action 

that affects the status of a geographical 

area and does not impose any new 

regulatory requirements on tribes, 

impact any existing sources of air 

pollution on tribal lands, nor impair the 

maintenance of ozone national ambient 

air quality standards in tribal lands. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 


tkelley on DSK3SPTVN1PROD with PROPOSALS
45152 Federal Register / Vol. 78, No. 144 / Friday, July 26, 2013 / Proposed Rules 

Dated: July 12, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2013–18026 Filed 7–25–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R04–OAR–2013–0129; FRL–9835–8] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas; North Carolina; 

Redesignation of the CharlotteGastonia-Rock Hill, 1997 8-Hour Ozone 

Moderate Nonattainment Area to 

Attainment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On November 2, 2011, and 

supplemented on March 28, 2013, the 

State of North Carolina, through the 

North Carolina Department of 

Environment and Natural Resources, 

Department of Air Quality (NC DAQ), 

submitted a request for EPA to 

redesignate the portion of North 

Carolina that is within the bi-state 

Charlotte-Gastonia-Rock Hill, North 

Carolina-South Carolina 8-hour ozone 

nonattainment area (hereafter referred to 

as the ‘‘bi-state Charlotte Area,’’ ‘‘Area,’’ 

or ‘‘Metrolina nonattainment area’’) to 

attainment for the 1997 8-hour ozone 

National Ambient Air Quality Standards 

(NAAQS); and to approve a State 

Implementation Plan (SIP) revision 

containing a maintenance plan for the 

Area. EPA is proposing to approve the 

redesignation request for the Area, along 

with the related SIP revisions, including 

North Carolina’s plan for maintaining 

attainment of the 1997 8-hour ozone 

standard in the Area. EPA is also 

proposing to approve a supplemental 

SIP revision, submitted to EPA on 

March 28, 2013, extending the 

maintenance plan to the year 2025 and 

updating motor vehicle emission 

budgets (MVEBs) for nitrogen oxides 

(NOX) and volatile organic compounds 

(VOC) for the years 2013 and 2025 for 

the North Carolina portion of the Area. 

These actions are being proposed 

pursuant to the Clean Air Act (CAA or 

Act) and its implementing regulations. 

EPA finalized action to redesignate the 

South Carolina portion of the Area, 

including approval of South Carolina’s 

maintenance plan for the 1997 8-hour 

ozone NAAQS, in a separate action. 

DATES: Comments must be received on 

or before August 26, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2013–0129, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: EPA–R04–OAR–2013–0129, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Ms. 

Lynorae Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

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

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2013– 

0129. 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 through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. 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. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

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 at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Jane 

Spann or Sara Waterson of the 

Regulatory Development Section, in the 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Ms. 

Spann may be reached by phone at (404) 

562–9029, or via electronic mail at 

spann.jane@epa.gov. Ms. Waterson may 

be reached by phone at (404) 562–9061, 

or via electronic mail at 

waterson.sara@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What are the actions EPA is proposing to 

take? 

II. What is the background for EPA’s 

proposed actions? 

III. What are the criteria for redesignation? 

IV. Why is EPA proposing these actions? 

V. What is EPA’s analysis of the request? 

VI. What is EPA’s analysis of North 

Carolina’s proposed NOX and VOC 

MVEBs for the North Carolina portion of 

the area? 

VII. What is the status of EPA’s adequacy 

determination for the proposed NOX and 

VOC MVEBs for 2013 and 2025 for the 

North Carolina portion of the area? 

VIII. Proposed Action on the Redesignation 

Request and Maintenance Plan SIP 

Revision Including Proposed Approval 

of the 2013 and 2025 NOX and VOC 

MVEBs for the North Carolina Portion of 

the Area 


tkelley on DSK3SPTVN1PROD with PROPOSALS