[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Rules and Regulations]
[Pages 80253-80261]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32818]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2011-0017; EPA-R05-OAR-2011-0106; FRL-9610-3]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio and Indiana;
Redesignation of the Ohio and Indiana Portions of the Cincinnati-
Hamilton 1997 Annual Fine Particulate Matter Nonattainment Area to
Attainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving, under the Clean Air Act (CAA), Ohio's and
Indiana's requests to redesignate their respective portions of the
Cincinnati-Hamilton nonattainment area (for Ohio: Butler, Clermont,
Hamilton, and Warren
[[Page 80254]]
Counties, Ohio; for Indiana: a portion of Dearborn County) to
attainment for the 1997 annual National Ambient Air Quality Standard
(NAAQS or standard) for fine particulate matter (PM2.5). The
Ohio Environmental Protection Agency (Ohio EPA) submitted its request
on December 9, 2010, and the Indiana Department of Environmental
Management (IDEM) submitted its request on January 25, 2011. EPA's
approvals here involve several additional related actions. EPA has
determined that the entire Cincinnati-Hamilton area has attained the
1997 annual PM2.5 standard. EPA is approving, as revisions
to the Ohio and Indiana State Implementation Plans (SIPs), the states'
plans for maintaining the 1997 annual PM2.5 NAAQS through
2021 in the area. EPA is approving the 2005 emissions inventories for
the Ohio and Indiana portions of the Cincinnati-Hamilton area as
meeting the comprehensive emissions inventory requirement of the CAA.
Finally, EPA finds adequate and is approving Ohio and Indiana's
Nitrogen Oxides (NOX) and PM2.5 Motor Vehicle
Emission Budgets (MVEBs) for 2015 and 2021 for the Cincinnati-Hamilton
area.
DATES: Effective Date: This rule will be effective December 23, 2011.
ADDRESSES: EPA has established two dockets for this action under Docket
Identification EPA-R05-OAR-2011-0017 and EPA-R05-OAR-2011-0106,
containing identical material but nominally addressing Ohio's and
Indiana's submittals, respectively. All documents in these dockets are
listed on the www.regulations.gov Web site. 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 U.S.
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 Carolyn Persoon at
(312) 353-8290 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Carolyn Persoon, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-8290, persoon.carolyn@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 is the background for the actions?
II. What are the actions EPA is taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. Final Action
VII. Statutory and Executive Order Reviews
I. What is the background for the actions?
The Ohio EPA submitted its request on December 9, 2010, and IDEM
submitted its request on January 25, 2011, to redesignate their
respective portions of the Cincinnati-Hamilton nonattainment area to
attainment for the 1997 annual PM2.5 NAAQS, and for EPA
approval of both states' SIP revisions containing maintenance plans for
the area. In an action published on October 19, 2011 (76 FR 64825), EPA
proposed approval of Ohio and Indiana's plans for maintaining the 1997
annual PM2.5 NAAQS, including the emissions inventories
submitted pursuant to CAA section 172(c)(3); and the NOX and
PM2.5 MVEBs for the Ohio and Indiana portions of the
Cincinnati-Hamilton area as contained in the maintenance plan.
Additional background for today's action is set forth in EPA's October
19, 2011, notice of direct final rulemaking, which EPA withdrew on
December 6, 2011, following receipt of adverse comments.
II. What are the actions EPA is taking?
EPA has determined that the entire Cincinnati-Hamilton area is
attaining the 1997 annual PM2.5 standard (76 FR 60373) and
that the Ohio and Indiana portions of the area have met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
Thus, EPA is approving the requests from the states of Ohio and Indiana
to change the legal designation of their portions of the Cincinnati-
Hamilton area from nonattainment to attainment for the 1997 annual
PM2.5 NAAQS. This action does not address the Kentucky
portion of the Cincinnati-Hamilton area. EPA is also taking several
additional actions related to Ohio's and Indiana's PM2.5
redesignation requests, as discussed below.
EPA is approving Indiana's and Ohio's PM2.5 maintenance
plans for the Cincinnati-Hamilton area as revisions to the Ohio and
Indiana SIP (such approval being one of the CAA criteria for
redesignation to attainment status). The maintenance plans are designed
to keep the Cincinnati-Hamilton area in attainment of the 1997 annual
PM2.5 NAAQS through 2021.
EPA is approving 2005 emissions inventories for primary
PM2.5,\1\ NOX, and sulfur dioxide
(SO2),\2\ documented in Ohio's and Indiana's
PM2.5 redesignation request submittals. These emissions
inventories satisfy the requirement in section 172(c)(3) of the CAA for
a comprehensive, current emission inventory.
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\1\ Fine particulates directly emitted by sources and not formed
in a secondary manner through chemical reactions or other processes
in the atmosphere.
\2\ NOX and SO2 are precursors for fine
particulates through chemical reactions and other related processes
in the atmosphere.
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Finally, EPA finds adequate and is approving Ohio's and Indiana's
2015 and 2021 primary PM2.5 and NOX MVEBs for the
Cincinnati-Hamilton area. These MVEBs will be used in future
transportation conformity analyses for the area. Further discussion of
the basis for these actions is provided below.
III. What is EPA's response to comments?
EPA received two sets of comments submitted by Robert Ukeiley on
behalf of Sierra Club: The first set, dated October 19, 2011, and the
second set dated November 18, 2011. A summary of the comments and EPA's
responses are provided below.
Comment 1a: The comment contends that it is inappropriate for EPA
to redesignate these areas to attainment at this time, claiming that
EPA is illegally delaying issuing a final rule to revise the annual
PM2.5 NAAQS, and that EPA's Clean Air Science Advisory
Committee (CASAC) has recommended adoption of a lower NAAQS. The
Commenter alleges that EPA is removing the protection of a
scientifically inadequate NAAQS, while not adopting a more protective
standard.
Response 1a: This redesignation does not remove the protection of
the 1997 annual PM2.5 NAAQS. This redesignation does not
concern the new NAAQS, addresses only the 1997 annual PM2.5
NAAQS, and has no impact on EPA's actions with respect to a revised
NAAQS.
Comment 1b: The Commenter claims that ``EPA has failed to conduct
an adequate analysis under Clean Air Act Section 110(l) on what effect
redesignation will have on the 2006 24-hour PM2.5 NAAQS, the
1-hour NOX NAAQS, the 1-hour SO2 NAAQS and the
1997 and 2008 75 parts per billion ozone NAAQS.'' In subsequent
comments, the Commenter also states,
[[Page 80255]]
``EPA has not conducted an adequate analysis of the effect
redesignation will have on other National Ambient Air Quality
Standards''.
Response 1b: Section 110(l) provides in part: ``the Administrator
shall not approve a revision of a plan if the revision would interfere
with any applicable requirement concerning attainment and reasonable
further progress * * *, or any other applicable requirement of this
chapter.'' As a general matter, EPA must and does consider section
110(l) requirements for every SIP revision, including whether the
revision would ``interfere with'' any applicable requirement. See,
e.g., 70 FR 53, 57 (January 3, 2005); 70 FR 17029, 17033 (April 4,
2005); 70 FR 28429, 28431 (May 18, 2005); and 70 FR 58119, 58134
(October 5, 2005). Neither Ohio's nor Indiana's redesignation request
and maintenance plan for the 1997 annual PM2.5 NAAQS revises
or removes any existing emissions limit for any NAAQS, nor does it
alter any existing control requirements. On that basis, EPA concludes
that the redesignations will not interfere with attainment or
maintenance of any of these air quality standards. The Commenter does
not provide any information in its comment to indicate that approval of
these redesignations would have any impact on the Area's ability to
comply with on the 2006 24-hour PM2.5 NAAQS, the 1-hour
NO2 NAAQS, the 1-hour SO2 NAAQS or the 1997 8-
hour ozone NAAQS and 2008 75 parts per billion ozone NAAQS. In fact,
the maintenance plans provided with both states' submissions
demonstrate a decline in the direct PM2.5 and
PM2.5 precursor emissions over the timeframe of the initial
maintenance period. As a result, the redesignations do not relax any
existing rules or limits, nor will the redesignation alter the status
quo air quality.\3\ The Commenter has not explained why the
redesignation might interfere with attainment of any standard or with
satisfaction of any other requirement, and EPA finds no basis under
section 110(l) for EPA to disapprove the SIP revision at issue or to
redesignate the area as requested.
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\3\ EPA notes that the Cincinnati/Northern Kentucky Area does
not have violating monitors for the 2006 24-hour PM2.5
NAAQS, the 1-hour NOX NAAQS, or the 1-hour SO2
NAAQS, the 1-hour and 8-hour ozone NAAQS, and that this Area has
never been designated nonattainment for 2006 24-hour
PM2.5 NAAQS, the 1-hour NOX NAAQS, or the 1-
hour SO2 NAAQS.
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Comment 1c: The Commenter elaborates on the first comment in the
second set of comments submitted, claiming ``For example, but this is
only one example, as explained below the Ohio and Indiana SIPs do not
currently have Reasonable Available Control Technology (RACT) standards
in place for PM2.5. Implementing these RACT standards would
have reduced NOX and SO2 which would have a co-
benefit of helping with the 2006 24-hour PM2.5 NAAQS, the 1-
hour NOX NAAQS, the 1-hour SO2 NAAQS, and the
1997 and 2008 ozone NAAQS as well as visibility. EPA needs to
demonstrate that removing this co-benefit will not interfere with
attainment, reasonable further progress and any other applicable
requirement.''
Response 1c: This example is fallacious, for reason given in
response 6(b) below--no RACT is required because the area is attaining
the standard.
Comment 2a: The Commenter argues that EPA has not established that
any of the emission reductions did not come from the NOX SIP
Call, CAIR (the Clean Air Interstate Rule), and CSAPR (the Cross-State
Air Pollution Rule, also known as the Transport Rule).
Response 2a: EPA disagrees with the Commenter's assertion. EPA and
the states have shown that emission reductions arose both from the
transport regulations listed above and from other regulatory
requirements. The Cincinnati-Hamilton area contains various sources of
emissions (point source, area, and mobile), and emission reductions
from the nonattainment year of 2005 to the attainment year of 2008 are
attributed to many permanent and enforceable measures. The
NOX SIP Call, CAIR, and CSAPR are all measures that have
resulted in emission reductions from point source Electric Generating
Units (EGUs). In addition, emission reduction from mobile sources,
which account for 53% of NOX emissions and 58% of direct
PM2.5 for the nonattainment year of 2005, are attributed to
permanent and enforceable engine and fuel standards. Due to these
permanent and enforceable measures, mobile sources reduced their
emissions by 9,367 tons of NOX, and 792 tons of direct
PM2.5 between the years of 2005 to 2008.
Comment 2b. The Commenter asserts that emission reductions pursuant
to NOX SIP Call, CAIR and CSAPR programs are not permanent
and enforceable because these programs are cap and trade programs. The
Commenter further opines that any source which reduced its actual
emissions pursuant to one of these programs could at any time in the
future choose to increase their emissions by purchasing emission
credits.
Response 2b. Contrary to the Commenter's statement, EPA did
establish in the proposal notice that at least part of the emission
reductions that helped the area achieve attainment came from programs
other than the NOX SIP Call, CAIR and CSAPR. The notice
lists several permanent and enforceable reductions in emissions
resulting from implementation of the Ohio and Indiana SIPs, applicable
Federal air pollution control regulations, and other reductions that
are not ``cap and trade'' programs. Those programs include Tier 2
vehicle standards, heavy-duty gasoline and diesel highway vehicle
standards, nonroad spark-ignition engines and recreational engines
standards, large nonroad diesel engine standards, open burning bans,
and fugitive emissions standards. See 76 FR 65465.
Further, EPA disagrees with the Commenter's conclusion that
emission reductions associated with trading programs such as the
NOX SIP Call, CAIR, and CSAPR are not permanent and
enforceable simply because the underlying program is an emissions
trading program. The Commenter appears to be arguing that these
reductions cannot be considered permanent and enforceable within the
meaning of section 107(d)(3)(E)(iii) of the CAA. This section
107(d)(3)(E)(iii) requires that, in order to redesignate an area to
attainment, the Administrator must determine 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.'' EPA disagrees with the Commenter's conclusion
that reductions from trading programs can't be considered permanent and
enforceable because these programs allow individual sources to choose
between purchasing emission credits and reducing emissions.
The final CSAPR allows sources to trade allowances with other
sources in the same or different states while firmly constraining any
emissions shifting that may occur by requiring a strict emission
ceiling in each state (the budget plus variability limit). As explained
in EPA's proposed redesignation notice for the Ohio and Indiana
portions of the Cincinnati-Hamilton area, the emission reduction
requirements of CAIR are enforceable through the 2011 control period,
and because CSAPR has now been promulgated to address the requirements
previously addressed by CAIR and gets similar or greater reductions in
the relevant areas in 2012 and beyond, EPA considers the emission
reductions that led to attainment in the Cincinnati-Hamilton area to be
permanent and enforceable.
[[Page 80256]]
The emission ceilings within each state are a permanent requirement of
the CSAPR and are made enforceable through the associated Federal
Implementation Plans.
EPA responded to a similar comment in its ``Approval and
Promulgation of Air Quality Implementation Plans; Redesignation of the
Evansville area to attainment of the Fine Particulate Matter Standard''
76 FR 59527, 59529/1, September 27, 2011. In that notice, EPA discusses
several factors which support EPA's determination that the
SO2 reductions in the Evansville area are permanent and
enforceable, and which also apply to the Cincinnati area. First, given
the mandates under CSAPR, any utility that has already spent the
hundreds of millions of dollars to install scrubbers will find
continued effective operation of those controls to be far more cost-
effective than disregarding this investment and either expending
similar capital installing replacement scrubbers elsewhere or
purchasing credits at a price equivalent to that capital already spent.
In short, any utility in a state covered by CSAPR provisions related to
PM2.5 that has installed scrubbers is almost certain under
CSAPR to retain the scrubbers and operate them effectively. Second, any
action by a utility that increases its emissions, requiring the
purchase of allowances, necessitates a corresponding reduction by the
utility that sells the allowances. Given the regional nature of
particulate matter, this corresponding emission reduction will have an
air quality benefit that will compensate at least in part for the
impact of any emission increase from utility companies outside but near
the Cincinnati-Hamilton area. In accordance with the opinion of the
Court of Appeals for the District of Columbia Circuit, CSAPR includes
assurance provisions to ensure that the necessary emission reductions
occur within each covered state.
The recent proposed rule revision referenced by the Commenter would
amend the CSAPR assurance penalty provisions for all states within the
program so they start in 2014 instead of 2012. 76 FR 63860, October 14,
2011. As explained in the proposal, which was subject to public review
and comment, this revision would promote the development of allowance
market liquidity, thereby smoothing the transition from the CAIR
programs to the CSAPR programs in 2012.
Further, Ohio's and Indiana's maintenance plans provide for
verification of continued attainment by performing future reviews of
triennial emissions inventories and also for contingency measures to
ensure that the NAAQS is maintained into the future if monitored
increases in ambient PM2.5 concentrations occur. 76 FR
64825. For this and the above reasons, EPA disagrees that the Commenter
has identified a basis on which EPA should disapprove this SIP
revision.
Comment 3: The Commenter asserts that ``Emissions calculations for
on-road mobile sources fail to consider 15% ethanol in gasoline.''
Response 3: Ethanol 15 (E15) is not mandated by EPA. EPA granted a
partial waiver for vehicles model years 2001 and newer, light duty
vehicles (76 FR 4662) to be able to use E15. To receive a waiver under
CAA section 211(f)(4), a fuel or fuel additive manufacturer must
demonstrate that a new fuel or fuel additive will not cause or
contribute to the failure of engines or vehicles to achieve compliance
with the emission standards to which they have been certified over
their useful life. Data used to act upon the approval of the E15
partial waiver showed that model year 2001 and newer vehicles would
still meet their certified engine standards for emissions for both
short and long term use, and use of E15 would not significantly
increase the emission from these engines. EPA's partial waiver for E15
is based on extensive studies done by the Department of Energy, as well
as the Agency's engineering assessment to determine the effects of
exhaust and evaporative emissions for the fleet prior to the partial
waiver. The criteria for granting the waiver was not that there are no
emission impacts of E15, but rather that vehicles operating on it would
not be expected to violate their emission standards in-use. As
discussed in the waiver decision, there are expected to be some small
emission impacts. E15 is expected to cause a small immediate emission
increase in NOX emissions. However, due to its lower
volatility than the E10 currently in-use, its use is also expected to
result in lower evaporative VOC emissions. Any other emissions impacts
related to E15 would be a result of misfueling of E15 in model year
2000 and older vehicles, and recreational or small engines. EPA has
approved regulations dealing specifically with the mitigation of
misfueling and reducing the potential increase in emissions from
misfueling (76 FR 44406).
The partial waivers that EPA has granted to E15 do not require that
E15 be made or sold. The waivers merely allow fuel or fuel additive
manufacturers to introduce E15 into commerce if they meet the waivers'
conditions. Other Federal, state and local requirements must also be
addressed before E15 may be sold. The granting of the partial waivers
is only one of several requirements for registration and distribution
of E15.
Since E15 may never be used in Ohio and Indiana, and even if it is,
due to the small and opposite direction of emission impacts of E15, the
limited vehicle fleet which can use it, and the measures required to
avoid mitigating misfueling, EPA believes that any potential emission
impacts of E15 will be less than the maintenance plan safety margin by
which Ohio and Indiana show maintenance.
Comment 4a: The Commenter contends that the ``Ohio and Indiana
maintenance plans will not provide for maintenance for ten years after
the redesignation,'' based on the Commenter's belief that EPA will be
unable to finalize its approval of the requests for redesignation by
the end of 2011.
Response 4a: Since EPA has promulgated its approvals of the
redesignation requests of Ohio and Indiana by the end of 2011, and the
maintenance plans provide for maintenance through the end of 2021, it
is evident that the Commenter's concern was misplaced, and that the
maintenance plans do provide for a ten-year maintenance period in
accordance with CAA section 175A.
Commment 4b: The Commenter asserts that the Ohio and Indiana
maintenance plans are deficient in part because the contingency
measures they include provide for their implementation within 18 months
of a monitored violation, if one occurs. The Commenter claims that as a
consequence, the ``contingency measures do not provide for prompt
correction of violations.''
Response 4b: The Commenter overlooks the provisions of the CAA
applicable to contingency measures. Section 175A(d) provides that
``[e]ach plan revision submitted under this section shall contain such
contingency provisions as the Administrator deems necessary to assure
that the state will promptly correct any violation of the standard
which occurs after the redesignation of the area as an attainment
area.'' (emphasis added). Thus Congress gave EPA discretion to evaluate
and determine the contingency measures EPA ``deems necessary'' to
assure that the state will promptly correct any subsequent violation.
EPA has long exercised this discretion in its rulemakings on section
175A contingency measures in redesignation maintenance plans, allowing
as contingency measures commitments to adopt and implement in lieu of
fully
[[Page 80257]]
adopted contingency measures, and finding that implementation within 18
months of a violation complies with the requirements of section 175A.
See recent redesignations, e.g. Indianapolis PM2.5 annual
standard (76 FR 59512), Lake and Porter 8-hour ozone standard (75 FR
12090), and Northwest Indiana PM2.5 annual standard (76 FR
59600). Section 175A does not establish any deadlines for
implementation of contingency measures after redesignation to
attainment. It also provides far more latitude than does section
172(c)(9), which applies to a different set of contingency measures
applicable to nonattainment areas. Section 172(c)(9) contingency
measures must ``take effect * * * without further action by the State
or [EPA].'' By contrast, section 175A confers upon EPA the discretion
to determine what constitutes adequate assurance, and thus permits EPA
to take into account the need of a state to assess, adopt implement
contingency measures if and when a violation occurs after an area's
redesignation to attainment. Therefore, in accordance with the
discretion accorded it by statute, EPA may allow reasonable time for
states to analyze data and address the causes and appropriate means of
remedying a violation. In assessing what ``promptly'' means in this
context, EPA also may take into account time for adopting and
implementation of the appropriate measure. In the case of the
Cincinnati-Hamilton area, EPA reasonably concluded that, 18 months
constitutes a timeline consistent with prompt correction of a potential
monitored violation. This timeframe also conforms with EPA's many prior
rulemakings on acceptable schedules for implementing section 175A
contingency measures.
Comment 4c: The Commenter asserts that the contingency measures
contained in the maintenance plans are ``too vague''.
Response 4c: As discussed above in response to comment 4(b), the
CAA does not specify the requisite nature, scope, specificity, or
number of contingency measures to be included in a maintenance plan
under section 175A. It is for EPA to determine whether the state has
given adequate assurance that it can promptly correct a violation. Both
Ohio and Indiana have submitted contingency measures that EPA deems
adequate. They have committed to remedy a future violation, and have
included measures to address potential violations from a range of
sources and a timeline for promptly completing adoption and
implementation. The states have identified measures that are
sufficiently specific but which allow for latitude in potential scope.
This will enable the states to address a range of potential sources and
differing degrees and types of violations. EPA believes that the
contingency measures set forth in the submittal, combined with the
states' commitment to an expeditious timeline and process for
implementation, provide assurance that the states will promptly correct
a future potential violation. Given the uncertainty as to timing,
degree and nature of any future violation, EPA believes that the
contingency measures set forth adequately balance the need for
flexibility in the scope and type of measure to be implemented with the
need for expeditious state action.
Comment 5: The Commenter asserts that the Ohio and Indiana Startup,
Shutdown, Malfunction, and/or Maintenance provisions (SSM) are
inconsistent with the Act and EPA policy because they provide that
excess emissions are not violations. The Commenter also claims that the
regulation is ambiguous because it lacks procedural specifications
indicating whether it is to be interpreted as a ``qualified exemption''
or an ``affirmative defense.'' In the second set of comments received,
the Commenter asserts, ``The Ohio and Indiana SIPs contain
impermissible provisions governing startup, shutdown, malfunctions and
scheduled maintenance.''
Response 5: The CAA sets forth the general criteria for
redesignation of an area from nonattainment to attainment in section
107(d)(3)(E). Specifically, that section identifies five criteria,
including that ``the Administrator has fully approved the applicable
implementation plan for the area under section 7410(k) of this title.''
42 U.S.C. 7407(d)(3)(E)(ii). Although the Commenter does not
specifically cite to section 107(d)(3)(E)(ii), the language used in the
comment (``fully approved adequate SIP'') appears to derive from this
section of the CAA (and the Commenter does later cite to section
107(d)(3)(E) in the concluding paragraph of the comment letter). As a
preliminary matter, the issue before EPA in the current rulemaking
action is a redesignation for the Ohio and Indiana portions of the
Cincinnati-Hamilton area to attainment for the 1997 PM2.5
standard, including the maintenance plan. The SIP provisions identified
in the Commenter's letter are not currently being proposed for revision
as part of the redesignation submittals. Thus, EPA's review here is
limited to whether the already approved provisions affect any of the
requirements for redesignation in a manner that would preclude EPA from
approving the redesignation requests. Because the rules cited by the
Commenter are not pending before EPA and/or are not the subject of this
rulemaking action, EPA did not undertake a full SIP review of the
individual provisions. It has long been established that EPA may rely
on prior SIP approvals in approving a redesignation request plus any
additional measures it may approve in conjunction with a redesignation
action. See e.g., page 3 of the September 4, 1992, John Calcagni
Memorandum; Wall v. EPA, 265 F.3d 426 (6th Cir. 2001); 68 FR 25413,
25426 (May 12, 2003).
Additionally, the comment inserted the word ``adequate'' into the
phrase ``fully approved SIP'' (which is the language of Section
107(d)(3)(E)(ii)), such that the Commenter stated that Ohio and Indiana
must have a ``fully approved adequate SIP.'' Clearly the word
``adequate'' is not included in Section 107(d)(3)(E)(ii), and its
inclusion substantially alters the plain text of the CAA. Furthermore,
while the Commenter opines that the cited-to provisions of the Ohio and
Indiana rules result in a ``regulatory structure that is inconsistent
with the fundamental requirement that all excess emissions be
considered violations,'' Commenter does not link this concern with
deficiencies in Ohio's and Indiana's redesignation submittals for the
Ohio and Indiana portions of the Cincinnati-Hamilton area. There is no
information in the comment indicating that Ohio or Indiana has excused
violations and that such actions result in Ohio or Indiana failing to
meet a requirement for redesignation. Furthermore, there is no
information in the comment indicating that even if Ohio or Indiana were
to excuse such violations that such violations would not be actionable
by EPA or citizens. For Indiana's SIP, 326 IAC 1-6-4 was formerly
codified as 325 IAC 1.1-5. When EPA approved that rule in 1984, it
noted Indiana's clarification that any malfunction causing excess
emissions would be treated as a SIP violation; and that the rule's
criteria would be used in determining an appropriate enforcement
response. (February 14, 1984, 49 FR 5618). This constitutes an
``enforcement discretion'' approach, acceptable under EPA's applicable
policies. EPA also noted that it had independent authority under
Section 113 of the CAA to determine whether enforcement discretion was
an appropriate response in a particular case.
On June 30, 2011, Sierra Club filed a ``Petition to Find Inadequate
and Correct Several State Implementation Plans under Section 110 of the
Clean
[[Page 80258]]
Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance
Provisions''. EPA has agreed to respond to this petition by August 31,
2012 as part of settlement of a lawsuit. See Sierra Club et al. v.
Jackson, No. 3:10-cv-04060-CRB (N.D. Cal). At this time, with regards
to the redesignation of the Ohio and Indiana portion of the Cincinnati-
Hamilton area, EPA does not agree that the Commenter has raised a basis
on which EPA could disapprove the redesignation. Ohio and Indiana have
fully approved SIPs consistent with applicable requirements.
Comment 6a: The Commenter asserts that the Ohio SIP does not meet
the requirement of section 107(d)(3)(E)(ii) because EPA has disapproved
Ohio's ``good neighbor provision'' Section 110(a)(2)D)(i)(I).
Response 6a: The requirements applicable for purposes of
redesignation are those which at a minimum are linked to the attainment
status of the area being redesignated. As noted in the proposal (76 FR
64825), all areas, regardless of their designation as attainment or
nonattainment, are subject to section 110(a)(2)(D). The applicability
of this provision is not connected with nonattainment plan submissions
or with the attainment status of an area. A nonattainment area remains
subject to the requirements of section 110(a)(2)(D) after it has been
redesignated to attainment. Therefore EPA has long interpreted the
110(a)(2)(D) requirements as not applicable requirement for purposes of
redesignation. EPA has leeway to determine what constitutes an
``applicable'' requirement under section 107(d)(3)(E), and EPA's
interpretation is entitled to deference. Sierra Club v. EPA, 375 F.3d
537 (7th Cir. 2004).
EPA has consistently interpreted only those section 110
requirements that are linked with a particular area's designation as
the requirements to be considered in evaluating a redesignation
request. See, e.g., EPA's positions on the applicability of conformity,
oxygenated fuels requirements for purposes of redesignations. 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).
Comment 6b: The Commenter contends that the Ohio and Indiana SIPs
do not have approved RACT rules.
Response 6b: EPA interprets RACT for PM2.5 as linked to
attainment needs of the area. If an area is attaining the
PM2.5 standard, it clearly does not need further measures to
reach attainment. Therefore, under EPA's interpretation of the RACT
requirement, as it applies to PM2.5, Ohio and Indiana have
satisfied the RACT requirement without need for further measures. On
May 22, 2008, EPA issued a memorandum that clarified its position with
respect to the relationship between PM2.5 attainment and
RACT requirements.
``Memorandum from William T. Harnett, Director, Air Quality Policy
Division to Regional Air Division Directors, PM2.5 Clean
Data Policy Clarification.'' This memorandum explained that 40 CFR
51.1004(c) provides that a determination that an area that has attained
the PM2.5 standard suspends the requirements to submit RACT
and RACM requirements.
Section 51.1010 provides in part: `For each PM2.5
nonattainment area, the state shall submit with the attainment
demonstration a SIP revision demonstrating that it has adopted all
reasonably available control measures (including RACT for stationary
sources) necessary to demonstrate attainment as expeditiously as
practicable and to meet any RFP requirements.'
Thus the regulatory text defines RACT as included in RACM, and
provides that it is required only insofar as it is necessary to advance
attainment. See also section 51.1010(b). The Commenter claims that Wall
v. EPA, 265 F.3d 426, 442 (6th Cir. 2001), establishes that fully
adopted RACT is nonetheless required. The Wall case, however, is not
applicable to RACT requirements for the PM2.5 standard. The
Wall decision addressed entirely different statutory provisions for
ozone RACT under CAA Part D subpart 2, which do not apply or pertain to
the subpart 1 RACT requirements for PM2.5.
Comment 6c: The Commenter asserts that the Ohio and Indiana SIPs
lack PM2.5 nonattainment New Source Review (NSR) programs.
The Commenter also contends that the prevention of significant
deterioration (PSD) program is part of the SIP that an area being
redesignated needs to have to ensure that the area will stay in
attainment. The Commenter takes the position that EPA cannot approve
the redesignation requests because Ohio and Indiana do not have
adequate PM2.5 PSD programs. The Commenter bases its
conclusion that Ohio and Indiana's PSD programs are inadequate for
PM2.5 on the contention that the programs do not contain
significant emission rates for PM2.5 and its precursors, and
that the programs do not include PM2.5 increments.
Response 6c: Both Ohio and Indiana have approved nonattainment NSR
programs in their SIPs. EPA approved Ohio's current NSR program on
January 10, 2003 (68 FR 1366). EPA approved Indiana's current NSR
program on October 7, 1994 (59 FR 51108). Nonetheless, since PSD
requirements will apply after redesignation, the area need not 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.'' The memo states, ``[EPA] * *
* is establishing a new policy under which nonattainment areas may be
redesignated to attainment notwithstanding the lack of a fully-approved
part D NSR program, provided the program is not relied upon for
maintenance.'' In this case, neither Ohio nor Indiana has relied upon
NSR to maintain the standard.
Ohio and Indiana also each have an EPA approved PSD program that
includes PM2.5 as a NSR pollutant. While the Commenter is
correct in stating that both Ohio and Indiana's approved PSD SIPs do
not include specific significant emissions rates for PM2.5
or its precursors, the Ohio and Indiana SIPs do include a provision
that sets ``any emission rate'' as the significant emission rate for
any regulated NSR pollutant that does not have a specific significant
emission rate listed in the state rule. Under Indiana's rule, a
regulated NSR pollutant includes a pollutant, for which a NAAQS has
been promulgated, and constituents or precursors for the pollutants
identified as a NAAQS by EPA.
Therefore, any increase in direct PM2.5 emissions or
emissions of its precursors (SO2 and NOX) will
trigger the requirements to obtain a PSD permit; to perform an air
quality analysis that demonstrates that the proposed source or
modification will not cause or contribute to a violation of the
PM2.5 NAAQS; and to apply best available control technology
(BACT) for direct PM2.5 and/or the pertinent precursor.
In addition, the fact that Ohio's and Indiana's approved PSD SIPs
lack PM2.5 increments does not prevent the program from
addressing and helping to
[[Page 80259]]
assure maintenance of the PM2.5 standard in accordance with
CAA section 175A. A PSD increment is the maximum increase in
concentration that is allowed to occur above a baseline concentration
for a pollutant. Even in the absence of an approved PSD increment, the
approved PSD program prohibits air quality from deteriorating beyond
the concentration allowed by the applicable NAAQS. Thus Ohio's and
Indiana's approved PSD programs are adequate for purposes of assuring
maintenance of the 1997 annual PM2.5 standard as required by
section 175A.
EPA notes that Indiana has adopted emergency rules containing
significant emissions rates of 10 tons per year for direct
PM2.5 and 40 tons per year for sulfur dioxide and nitrogen
oxide (as PM2.5 precursors). The emergency rules also
contain maximum allowable PM2.5 increments of 4 micrograms
per cubic meter ([micro]g/m\3\) for the annual standard and 9 [micro]g/
m\3\ for the 24-hour standard.\4\ The state is currently implementing
the emergency rules at the state level and is in the process of
adopting permanent rules for submission to EPA.
---------------------------------------------------------------------------
\4\ EPA's redesignation action here addresses only the 1997
annual PM2.5 standard, and does not address the 24-hour
PM2.5 standard.
---------------------------------------------------------------------------
Irrespective of the state's emergency rules, EPA concludes that the
features of Indiana's currently approved PSD program cited by the
Commenter do not detract from the program's adequacy for purposes of
maintenance of the standard and redesignation of the area. As it
stands, the currently approved PSD program is sufficient for the
purposes of maintaining the 1997 annual PM2.5 NAAQS in the
Cincinnati-Hamilton area.
IV. Why is EPA taking these actions?
EPA has determined that the Cincinnati-Hamilton area has attained
the 1997 annual PM2.5 NAAQS. EPA has also determined that
all other criteria have been met for the redesignation of the Ohio and
Indiana portions of the Cincinnati-Hamilton area from nonattainment to
attainment of the 1997 annual PM2.5 NAAQS. See CAA section
107(d)(3)(E). The detailed rationale for EPA's findings and actions is
set forth in the proposed rulemaking of October 19, 2011 (76 FR 64825)
and in this final rulemaking.
V. Final Action
EPA has previously made the determination that the Cincinnati-
Hamilton area has attained the 1997 annual PM2.5 standard
(76 FR 60373). EPA is determining that the area continues to attain the
standard and that the Ohio and Indiana portions of the area meet the
requirements for redesignation to attainment of that standard under
section 107(d)(3)(E) of the CAA. Thus, EPA is approving the requests
from Ohio and Indiana to change the legal designation of their portions
of the Cincinnati-Hamilton area from nonattainment to attainment for
the 1997 annual PM2.5 NAAQS. EPA is approving Ohio's and
Indiana's 1997 annual PM2.5 maintenance plans for the
Cincinnati-Hamilton area as revisions to the respective SIPs because
the plans meet the requirements of section 175A of the CAA. EPA is
approving the 2005 emissions inventories for primary PM2.5,
NOX, and SO2, documented in Indiana's and Ohio's
December 9, 2010, and January 25, 2011, submittals as satisfying the
requirement in section 172(c)(3) of the CAA for a comprehensive,
current emission inventory. Finally, EPA finds adequate and is
approving 2015 and 2021 primary PM2.5 and NOX
MVEBs submitted from each state for the Ohio and Indiana portions of
the Cincinnati-Hamilton area. These MVEBs will be used in future
transportation conformity analyses for the area after the effective
date for the adequacy finding and approval.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for this action to become effective immediately upon publication. This
is because a delayed effective date is unnecessary due to the nature of
a redesignation to attainment, which relieves the Area from certain CAA
requirements that would otherwise apply to it. The immediate effective
date for this action is authorized under both 5 U.S.C. 553(d)(1), which
provides that rulemaking actions may become effective less than 30 days
after publication if the rule--grants or recognizes an exemption or
relieves a restriction, and section 553(d)(3), which allows an
effective date less than 30 days after publication--as otherwise
provided by the agency for good cause found and published with the
rule. The purpose of the 30-day waiting period prescribed in section
553(d) is to give affected parties a reasonable time to adjust their
behavior and prepare before the final rule takes effect. Today's rule,
however, does not create any new regulatory requirements such that
affected parties would need time to prepare before the rule takes
effect. Rather, today's rule relieves the Ohio and Indiana of various
requirements for the Ohio and Indiana portions of the Cincinnati-
Hamilton area. For these reasons, EPA finds good cause under 5 U.S.C.
553(d)(3) for this action to become effective on the date of
publication of this action.
VII. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of the maintenance plan under CAA section
107(d)(3)(E) are actions that affect the status of geographical area
and do not impose any additional regulatory requirements on sources
beyond those required by state law. A redesignation to attainment does
not in and of itself impose any new requirements, but rather results in
the application of requirements contained in the CAA for areas that
have been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For these reasons, these actions:
Are not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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 an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory action 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
[[Page 80260]]
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 final rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the Commonwealth, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 21, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2)).
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.
Dated: December 14, 2011.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR parts 52 and 81 are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart P--Indiana
0
2. Section 52.776 is amended by adding paragraphs (v)(3) and (w)(3) to
read as follows:
Sec. 52.776 Control strategy: Particulate matter.
* * * * *
(v) * * *
(3) The Indiana portion of the Cincinnati-Hamilton nonattainment
area (Lawrenceburg Township in Dearborn County), as submitted on
December 9, 2010. The maintenance plan establishes 2015 motor vehicle
emissions budgets for the Ohio and Indiana portions of the Cincinnati-
Hamilton area of 1,678.60 tpy for primary PM2.5 and
35,723.83 tpy for NOX and 2021 motor vehicle emissions
budgets of 1,241.19 tpy for primary PM2.5 and 21,747.71 tpy
for NOX.
(w) * * *
(3) Indiana's 2005 NOx, directly emitted PM2.5, and
SO2 emissions inventory satisfies the emission inventory
requirements of section 172(c)(3) of the Clean Air Act for the
Cincinnati-Hamilton area.
Subpart KK--Ohio
0
3. Section 52.1880 is amended by adding paragraphs (p) and (q) to read
as follows:
Sec. 52.1880 Control strategy: Particulate matter.
* * * * *
(p) Approval--The 1997 annual PM2.5 maintenance plans
for the following areas have been approved:
(1) The Ohio portion of the Cincinnati-Hamilton nonattainment area
(Butler, Clermont, Hamilton, and Warren Counties), as submitted on
January 25, 2011. The maintenance plan establishes 2015 motor vehicle
emissions budgets for the Ohio and Indiana portions of the Cincinnati-
Hamilton area of 1,678.60 tpy for primary PM2.5 and
35,723.83 tpy for NOX and 2021 motor vehicle emissions
budgets of 1,241.19 tpy for primary PM2.5 and 21,747.71 tpy
for NOX.
(2) [Reserved]
(q) Approval--The 1997 annual PM2.5 comprehensive
emissions inventories for the following areas have been approved:
(1) Ohio's 2005 NOx, directly emitted PM2.5, and
SO2 emissions inventory satisfies the emission inventory
requirements of section 172(c)(3) for the Cincinnati-Hamilton area.
(2) [Reserved]
PART 81--[AMENDED]
0
4. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
5. Section 81.315 is amended by revising the entry for Cincinnati-
Hamilton in the table entitled ``Indiana PM2.5 (Annual
NAAQS)'' to read as follows:
Sec. 81.315 Indiana.
* * * * *
Indiana PM2.5
[Annual NAAQS]
------------------------------------------------------------------------
Designation \a\
Designated area -------------------------------------
Date \1\ Type
------------------------------------------------------------------------
* * * * * * *
Cincinnati-Hamilton, IN: Dearborn 12/23/2011 Attainment.
County (part) Lawrenceburg
Township.
* * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.
[[Page 80261]]
* * * * *
0
6. Section 81.336 is amended by revising the entry for Cincinnati-
Hamilton, OH in the table entitled ``Ohio PM2.5 (Annual
NAAQS)'' to read as follows:
Sec. 81.336 Ohio.
* * * * *
Ohio PM2.5
[Annual NAAQS]
------------------------------------------------------------------------
Designation \a\
Designated area -------------------------------------
Date \1\ Type
------------------------------------------------------------------------
* * * * * * *
Cincinnati-Hamilton, Ohio: 12/23/2011 Attainment.
Butler County.....................
Clermont County...................
Hamilton County...................
Warren County.....................
* * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.
* * * * *
[FR Doc. 2011-32818 Filed 12-22-11; 8:45 am]
BILLING CODE 6560-50-P