Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On June 30, 2011, the State of West Virginia through WVDEP formally submitted a request to redesignate the West Virginia portion of the Area from nonattainment to attainment of the 1997 annual PM
EPA is proposing to take several actions related to redesignation of the West Virginia portion of the Area to attainment for the 1997 annual PM
EPA is also proposing to approve the maintenance plan for the West Virginia portion of the Area as a revision to the West Virginia SIP. Such approval is one of the CAA criteria for redesignation of an area to attainment. The maintenance plan is designed to ensure continued attainment in the West Virginia portion of the Area for 10 years after redesignation. The maintenance plan includes an insignificance determination for the on-road motor vehicle contribution of PM
The first air quality standards for PM
On January 5, 2005 at 70 FR 944, as supplemented on April 14, 2005 at 70 FR 19844, EPA designated the
In response to legal challenges of the annual standard promulgated in 2006, the DC Circuit remanded this standard to EPA for further consideration.
In a final rulemaking action dated September 7, 2011 at 76 FR 55542, EPA determined, pursuant to 40 CFR 51.1004(c), that the entire Huntington-Ashland Area is attaining the 1997 annual PM
On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of SO
In light of the above and as explained below, EPA proposes to approve the redesignation request and the related SIP revision for Cabell and Wayne Counties and the Graham tax district in Mason County in West Virginia, including West Virginia's plan for maintaining attainment of the 1997 annual PM
In addition, CAIR remains in place and enforceable until substituted by a “valid” replacement rule. West Virginia's SIP revision lists CAIR as a control measure that became state-effective on May 1, 2008 and was approved by EPA on August 4, 2009 for the purpose of reducing SO
Further, in vacating the Transport Rule and requiring EPA to continue administering CAIR, the DC 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.”
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that:
1. EPA determines that the area has attained the applicable NAAQS;
2. EPA has fully approved the applicable implementation plan for the area under section 110(k);
3. EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
4. EPA has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and
5. The state containing such area has met all requirements applicable to the area under CAA section 110 and Part D.
EPA has provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (April 16, 1992, 57 FR 13498) (supplemented on April 28, 1992, 57 FR 18070) and has provided further guidance on processing redesignation requests in the following documents:
1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “Calcagni Memorandum”);
2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and
3. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.
On June 30, 2011, the WVDEP requested redesignation of the West Virginia portion of the Area to attainment for the 1997 annual PM
Final approval of the redesignation request would change the official designation of the West Virginia portion of the Area for the 1997 annual PM
EPA proposes to redesignate the West Virginia portion of the Area to attainment for the 1997 annual PM
As noted above, in a final rulemaking action dated September 7, 2011, at 76 FR 55542, EPA determined, pursuant to 40 CFR 51.1004(c), that the entire Huntington-Ashland Area is attaining the 1997 annual PM
EPA has determined that the West Virginia portion of the Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that, upon final approval of the 2002 base year inventory as discussed in section VI, it will have met all applicable SIP requirements under Part D of Title I of the CAA, in accordance with CAA section 107(d)(3)(E)(v). In addition, EPA is proposing to find that all applicable requirements of the West Virginia SIP for purposes of redesignation have been approved in accordance with CAA section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which SIP requirements are applicable for purposes of redesignation of this area, and concluded that the applicable portions of the SIP meeting these requirements are fully approved under CAA section 110(k). We note that SIPs must be fully approved only with respect to applicable requirements.
Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in CAA section 110(a)(2) include, but are not limited to the following:
• Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing;
• Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;
• Implementation of a source permit program; provisions for the implementation of Part C requirements (Prevention of Significant Deterioration (PSD));
• Provisions for the implementation of Part D requirements for New Source Review (NSR) permit programs;
• Provisions for air pollution modeling; and
• Provisions for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision for various NAAQS, EPA has required certain states to establish programs to address transport of air pollutants in accordance with the NO
In addition, EPA believes that the other CAA section 110(a)(2) elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Area will still be subject to these requirements after it is redesignated. We conclude that the CAA section 110(a)(2) and Part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request, and that CAA section 110(a)(2) elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. This approach is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement.
We have reviewed the West Virginia SIP and have concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of West Virginia's SIP addressing CAA section 110(a)(2) requirements, including provisions addressing PM
Subpart 1 of part D, sections 172 to 175 of the CAA, sets forth the basic nonattainment plan requirements applicable to PM
The General Preamble for Implementation of Title I also discusses the evaluation of these requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when
Because attainment has been reached for the Area, no additional measures are needed to provide for attainment, and CAA section 172(c)(1) requirements for an attainment demonstration and RACM are no longer considered to be applicable for purposes of redesignation as long as the area continues to attain the standard until redesignation.
Section 172(c)(3) of the CAA requires submission of a comprehensive, accurate, and current inventory of actual emissions. As part of West Virginia's attainment plan submittal, the State submitted a 2002 emissions inventory. As previously noted, on September 7, 2011 (76 FR 55542), EPA determined that the Huntington-Ashland Area attained the 1997 annual PM
Section 172(c)(4) of the CAA requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and CAA section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since prevention of significant deterioration (PSD) requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment new source review (NSR) program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Asssistant Administrator for Air and Radiation, dated October 14, 1994, entitled,
Section 172(c)(6) of the CAA requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached for the Area, no additional measures are needed to provide for attainment.
Section 172(c)(7) of the CAA requires the SIP to meet the applicable provisions of CAA section 110(a)(2). As noted previously, we believe the West Virginia SIP meets the requirements of CAA section 110(a)(2) that are applicable for purposes of redesignation.
Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other Federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability which EPA promulgated pursuant to its authority under the CAA.
EPA interprets the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under CAA section 107(d) because state conformity rules are still required after redesignation, and Federal conformity rules apply where state rules have not been approved.
Upon final approval of the 2002 base year inventory, as proposed in the October 2, 2012 rulemaking action, EPA will have fully approved the West Virginia portion of the Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation to attainment for the 1997 annual PM
For redesignating a nonattainment area to attainment, CAA section 107(d)(3)(E)(iii) requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable reductions. EPA believes that West Virginia has demonstrated that the observed air quality improvement in the West Virginia portion of the Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other/state-adopted measures. In making this
Reductions in fine particulate precursor emissions have occurred statewide and in upwind states as a result of Federal emission control measures with additional emission reductions expected to occur in the future. Federal emission control measures include the following:
These emission control requirements result in lower NO
EPA issued this rule in July 2000. This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007 which reduced fine particulate 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% reduction in direct PM
In May 2004, EPA promulgated a new rule for large nonroad diesel engines, such as those used in construction, agriculture, and mining, to be phased in between 2008 and 2014. The rule also reduces the sulfur content in nonroad diesel fuel by over 99%. 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 Area's air quality is strongly affected by regulation of SO
EPA issued the NO
EPA approved West Virginia's CAIR rules in 2009 (74 FR 38536, August 4, 2009). The maintenance plan for the West Virginia portion of the Area thus lists CAIR as a control measure for the purpose of reducing SO
As previously discussed, the D.C. Circuit's 2008 remand of CAIR left the rule in place to “temporarily preserve the environmental values covered by CAIR” until EPA replaced it with a rule consistent with the Court's opinion, and the court's August 2012 decision on the Transport Rule also left CAIR in effect until the legal challenges to the Transport Rule are resolved. As noted, EPA believes it is appropriate to allow states to rely on CAIR, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable pending a valid replacement rule, for purposes such as redesignation.
Furthermore, as previously discussed, the air quality modeling analysis conducted for the Transport Rule demonstrates that the Huntington-Ashland Area would be able to attain the 1997 annual PM
EGUs in this Area are subject to Federal consent decrees that have reduced emissions of NO
Since 2008, additional controls have or will be installed on EGUs within the West Virginia portion of the Area and in Kentucky and Ohio, which will continue to contribute to the reductions in precursor pollutants for PM
A summary of the emissions reductions from 2005 to 2009 for the entire Huntington-Ashland Area is provided in Table 2 below. As discussed below, West Virginia's maintenance plan provides for verification of continued attainment by performing triennial reviews of emissions inventories for all PM
Based on the information summarized above, West Virginia has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions. The reductions result from Federal requirements, regulation of precursors under the NO
Additionally, because PM
Table 3 shows that the states impacting the Huntington-Ashland Area reduced NO
In conjunction with its request to redesignate the West Virginia portion of the Area to attainment status, West
Section 175 of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under CAA section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, West Virginia must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future PM
(1) An attainment emissions inventory;
(2) A maintenance demonstration showing maintenance for 10 years;
(3) A commitment to maintain the existing monitoring network;
(4) Verification of continued attainment; and
(5) A contingency plan to prevent or correct future violations of the NAAQS.
An attainment inventory is comprised of the emissions during the time period associated with the monitoring data showing attainment. WVDEP developed emissions inventories for NO
On June 30, 2011, the WVDEP submitted a maintenance plan for the West Virginia portion of the Area as required by section 175A of the CAA. WVDEP uses projection inventories to show that the Area will remain in attainment and developed projection inventories for an interim year of 2015 and a maintenance plan end year of 2022 to show that future emissions of NO
West Virginia developed the 2015 point source inventory by interpolation between VISTAS/ASIP 2012 and 2018 modeling inventory. The 2022 EGU inventory for PM
Area source emissions for 2015 were interpolated from the VISTAS/ASIP 2012 and 2018 inventories. The 2022 emissions were extrapolated from the VISTAS/ASIP 2012 and 2018 inventories. Growth and controls for emissions were based on the methodologies applied by EPA for the CAIR analysis.
Nonroad source emissions, including aircraft, locomotives, and commercial marine vessels (CMV) for 2015 were interpolated from the VISTAS/ASIP 2012 and 2018 inventories. CMV source emissions for SO
The 2015 and 2022 onroad mobile source emissions were prepared using MOVES2010a following the same procedure as the 2008 inventory as described previously.
EPA has determined that the emissions inventories provided by
Table 4 shows that, between 2008 and 2015, the entire Huntington-Ashland Area is projected to reduce SO
As noted in section 4.a of this document, CAA section 175A requires a State seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” September 4, 1992 Memorandum from John Calcagni, Director, AQMD,
As discussed in detail above, the State's maintenance plan submission expressly documents that the Area's emissions inventories will remain below the attainment year inventories through 2022. In addition, for the reasons set forth below, EPA believes that the State's submission, in conjunction with additional supporting information, further demonstrates that the Area will continue to maintain the 1997 annual PM
• Significant emissions controls remain in place, and will continue to provide reductions that keep the Area in attainment. The Mountaineer Power Station was required by a permanent and enforceable consent decree to install SCR for NO
• West Virginia has committed to maintain all of the control measures that are relied on, and will submit any changes to EPA for approval as a SIP revision.
• Emissions inventory levels for SO
• The mobile source contribution has been determined to be insignificant, and is expected to remain insignificant in 2023 with fleet turnover in upcoming years that will result in cleaner vehicles and cleaner fuels.
• Air quality concentrations well below the standard, coupled with the emissions inventory projections through 2022 show that it would be very unlikely for a violation to occur in 2023. The 2009-2011 design value of 12.1 μg/m
Thus, if EPA finalizes its proposed approval of the redesignation request and maintenance plans in 2013, it is based on a showing, in accordance with CAA section 175A, that the State's maintenance plan provides for maintenance for at least ten years after redesignation, and into 2023.
West Virginia's maintenance plan includes a commitment to continue to operate its EPA-approved monitoring network, as necessary to demonstrate ongoing compliance with the NAAQS. West Virginia currently operates a PM