[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76883-76897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31276]



40 CFR Parts 52 and 81

[EPA-R05-OAR-2011-0468; FRL-9764-9]

Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the 
Ohio Portion of the Huntington-Ashland 1997 Annual Fine Particulate 
Matter Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving, under the Clean Air Act (CAA), the state of 
Ohio's request to redesignate the Ohio portion of the Huntington-
Ashland (OH-WV-KY) nonattainment area (Lawrence, Scioto, and portions 
of Adams and Gallia Counties) 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 May 4, 2011. EPA 
determined that the entire Huntington-Ashland area has attained the 
1997 annual PM2.5 standard, and proposed to approve Ohio's 
request to redesignate the Ohio portion of the area on December 22, 
2011. EPA's final rulemaking involves several related actions. EPA has 
determined that the entire Huntington-Ashland area continues to attain 
the 1997 annual PM2.5 standard. EPA is approving, as a 
revision to the Ohio State Implementation Plan (SIP), the state's plan 
for maintaining the 1997 annual PM2.5 NAAQS in the area 
through 2022. EPA is also approving the 2005 and 2008 emissions 
inventories for the Ohio portion of the Huntington-Ashland area as 
meeting the comprehensive emissions inventory requirement of the CAA. 
EPA finds adequate and is making a finding of

[[Page 76884]]

insignificance for Ohio motor vehicle emissions of nitrogen oxides 
(NOX) and direct PM2.5 for the Huntington-Ashland 
area. EPA, therefore, grants Ohio's request to redesignate the Ohio 
portion of the Huntington-Ashland area to attainment for the 1997 
PM2.5 annual standard.

DATES: Effective Date: This rule will be effective December 31, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification EPA-R05-OAR-2011-0468. 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 actions is EPA taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. Final action
VI. Statutory and executive order reviews

I. What is the background for the actions?

    On May 4, 2011 the Ohio EPA submitted its request to redesignate 
the Ohio portion of the Huntington-Ashland nonattainment area to 
attainment for the 1997 annual PM2.5 NAAQS, and for EPA 
approval of the state's SIP revision containing an emissions inventory 
and a maintenance plan for the area. On December 22, 2011 (76 FR 
79593), EPA proposed approval of Ohio's redesignation request, 
emissions inventories and plan for maintaining the 1997 annual 
PM2.5 NAAQS. EPA also proposed approval of Ohio's 
determination that on-road emissions of PM2.5 and 
NOX are insignificant contributors to PM2.5 
concentrations in the area. Additional background for today's action is 
set forth in EPA's December 22, 2011, proposed rulemaking.
    In the proposed redesignation of the Huntington-Ashland area, EPA 
proposed to determine that the emission reduction requirements that 
contributed to attainment of the 1997 annual PM2.5 standard 
in the nonattainment area could be considered permanent and 
enforceable. At the time of proposal, EPA noted that the Clean Air 
Interstate Rule (CAIR), which had been in place through 2011, had been 
replaced by the recently promulgated Cross-State Air Pollution Rule 
(CSAPR). 76 FR 48208, August 8, 2011. CSAPR included regulatory changes 
to sunset (i.e., discontinue) CAIR and the CAIR Federal Implementation 
Plans (FIPs) for control periods in 2012 and beyond. See 76 FR 48322. 
Although Ohio's redesignation request and maintenance plan relied on 
reductions associated with CAIR, EPA proposed to approve the request 
based in part on the fact that CSAPR achieved ``similar or greater 
reductions in the relevant areas in 2012 and beyond.'' 76 FR 79598. On 
December 30, 2011, eight days after the proposed redesignation, the 
U.S. Court of Appeals for the D.C. Circuit (referred to as D.C. Circuit 
or court hereafter) 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 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.
    On August 21, 2012, the D.C. Circuit issued a decision in EME Homer 
Generation, L.P. v. EPA, to vacate and remand CSAPR and ordered EPA to 
continue administering CAIR pending the promulgation of a valid 
replacement. That judgment is not yet final as the mandate has not been 
issued by the court and on October 5, 2012, EPA filed a petition for 
rehearing en banc asking the full court to reconsider that decision. 
EPA has determined that it is appropriate to move forward with final 
approval of this redesignation action, even though the emission 
reductions associated with CSAPR that EPA referenced in the proposal 
notice may not be relied upon at this time given the rule's legal 
status. As discussed in greater detail in this notice, the submission 
received from the state relied on reductions achieved from CAIR and 
demonstrated that the Huntington-Ashland area achieved attainment due 
in part to emission reductions required by CAIR. The D.C. Circuit's 
order that EPA continue administering CAIR until a valid replacement 
rule is developed ensures that the reductions that led to attainment 
are sufficiently permanent and enforceable to meet the requirements of 
CAA section 107(d)(3)(E)(iii).

II. What actions is EPA taking?

    EPA has determined that the entire Huntington-Ashland area has 
attained and continues to attain the 1997 annual PM2.5 
standard \1\ (76 FR 55542) and that the Ohio portion of the area meets 
the requirements for redesignation under section 107(d)(3)(E) of the 
CAA. On September 7, 2011, at 76 FR 55542, EPA finalized its 
determinations that the Huntington-Ashland area attained the 1997 
PM2.5 NAAQS and that the area attained the 1997 
PM2.5 NAAQS by the applicable attainment date of April 5, 
2010. Subsequent to EPA's final determination of attainment and 
proposed redesignation of the Ohio portion of the Huntington-Ashland 
area, additional monitoring data have become available, quality-
assured, and certified. Table 1 below sets forth design values for 
2007-2009, 2008-2010, and 2009-2011, last of which is based on the most 
current 3-years of data, which shows that the area continues to attain. 
Preliminary data available for 2012 also are consistent with continued 

    \1\ On September 7, 2011 EPA published a final determination 
that the Huntington-Ashland area has attained the 1997 annual 
PM2.5 standard. 76 FR 55542, September 7, 2011.

[[Page 76885]]

       Table 1--Design Value Concentrations for the Huntington-Ashland Area for the 1997 Annual PM2.5 NAAQS Microgram per Cubic meter ([mu]g/m\3\)
                                                                                                                   3-Year Design Values
                  Location                             County, State              Monitor ID    --------------------------------------------------------
                                                                                                     2007-2009          2008-2010          2009-2011
Huntington..................................  Cabell, WV....................        54-011-0006               14.3               13.1               12.1
Ashland Primary (FIVCO).....................  Boyd, KY......................        21-019-0017               12.4               11.4               10.8
Lawrence County Hospital (LCH) \2\..........  Lawrence, OH..................        39-087-0010               13.3                 NA                 NA
Ironton Department of Transportation (DOT)    Lawrence, OH..................        39-087-0012               12.2               12.2               11.4
Portsmouth..................................  Scioto, OH....................        39-145-0013               12.3               11.6               10.9
\2\ The Lawrence County Hospital Site was shut down in February 2008. The Ironton DOT site began operation on the same day the Lawrence County Hospital
  Site ceased monitoring.
\3\ The Ironton DOT site did not begin operation until February 2008; however, an analysis of air quality data at this location, as provided for in 40
  CFR part 50 appendix N, was done showing that the area would attain the standard for the 2007-2009 and 2008-2010 monitoring periods.

    Because the area continues to attain and meets all other 
requirements for redesignation under CAA section 107(d)(3)(E), EPA is 
approving the request from the state of Ohio to change the legal 
designation of the Ohio portion of the Huntington-Ashland area from 
nonattainment to attainment for the 1997 annual PM2.5 

    \4\ EPA in this notice is not addressing the requests of 
Kentucky and West Virginia for redesignation of those states' 
portions of the Huntington-Ashland area.

    EPA is taking several actions related to Ohio's PM2.5 
redesignation request, as discussed below.
    EPA is approving, pursuant to CAA section 175A, Ohio's 1997 annual 
PM2.5 maintenance plan for the Huntington-Ashland area as a 
revision to the Ohio SIP (such approval being one of the CAA criteria 
for redesignation to attainment status). The maintenance plan is 
designed to keep the Huntington-Ashland area in attainment of the 1997 
annual PM2.5 NAAQS through 2022.
    EPA is approving, pursuant to CAA section 172(c)(3), both the 2005 
and 2008 emission inventories for primary PM2.5,\5\ 
NOX, and SO2,\6\ documented in Ohio's 
PM2.5 redesignation request submittal. These emission 
inventories satisfy the requirement in section 172(c)(3) of the CAA for 
a comprehensive, current emission inventory.

    \5\ Fine particulates directly emitted by sources and not formed 
in a secondary manner through chemical reactions or other processes 
in the atmosphere.
    \6\ NOX and SO2 are precursors for fine 
particulates through chemical reactions and other related processes 
in the atmosphere.

    Finally, for transportation conformity purposes EPA is approving 
Ohio's determination that on-road emissions of PM2.5 and 
NOX are insignificant contributors to PM2.5 
concentrations in the area. Further discussion of the basis for these 
actions was provided in the proposed rulemaking on December 22, 2011 
(76 FR 79593).

III. What is EPA's Response to Comments?

    EPA received two sets of comments on its proposed rulemaking. The 
Ohio Utilities Group submitted comments in support of the redesignation 
of the Ohio portion of the Huntington-Ashland area, and on behalf of 
Sierra Club, Robert Ukeiley submitted adverse comments. A summary of 
Sierra Club's comments and EPA's responses are provided below.
    Comment 1a: The Commenter contends that EPA cannot rely on 
reductions associated with the NOX SIP Call,\7\ CAIR, and 
CSAPR in order to redesignate the Huntington-Ashland area because 
reductions from these programs are not permanent and enforceable. The 
Commenter points out that EPA noted that the area is impacted by 
pollution from electric generating units (EGUs) and that the Ohio 
submittal ``credits reductions'' to three rules that reduce 
SO2 and NOX emissions from power plants, the 

    \7\ The Commenter mentions that EPA may not rely on emission 
reductions associated with the NOX SIP Call but does not 
provide any specific arguments to support this contention.

    Specifically, the Commenter argues that CAIR reductions are not 
permanent and enforceable because EPA stated in the proposal that CAIR 
emission reductions only run through 2011. The Commenter also cites 
statements by EPA made in the context of other rules indicating that 
CAIR is legally deficient, remanded, and therefore temporary, in both 
the regional haze proposed rulemakings (76 FR 78194, 78200, December 
16, 2011), as well as a redesignation proposal for Cincinnati (76 FR 
65458, 65460, October 21, 2011). The Commenter argues that EPA cannot 
rely on CAIR because it is a cap-and-trade program. The Commenter cites 
to NRDC v. EPA, 571 F.3d 1245, 1257 (D.C. Cir. 2009) for support of the 
proposition that, because EPA cannot predict which sources will reduce 
emissions, EPA cannot rely on cap-and-trade programs for future 
reductions. The Commenter states that any source could decide at any 
time in the future to purchase emissions credits and increase its 
emissions and impacts to the Huntington-Ashland area. The Commenter 
adds that emissions banking can also lead to violations of the NAAQS 
and prevents CAIR emission budgets from being permanent and enforceable 
emission limits.
    Response 1a: EPA disagrees with Commenter that it must disapprove 
Ohio's redesignation request because the submittal relies on CAIR. 
First, although Ohio's redesignation request references CAIR and 
includes emission reductions associated with CAIR, EPA's modeling 
indicates that the area would attain and maintain the 1997 
PM2.5 NAAQS even in the absence of CAIR. Second, the EPA 
statements cited by the Commenter regarding the status of CAIR were 
made prior to the D.C. Circuit's decision to vacate CSAPR and to leave 
CAIR in place. Third, EPA disagrees with the Commenter's assertion that 
reductions may not be relied upon for redesignation purposes if those 
reductions stem from an emissions trading program. Finally, EPA 
believes that the area meets all the requirements for redesignation 
regardless of the status of CAIR, because the area has other measures, 
such as consent decrees on EGUs.
    As an initial matter, EPA notes that the modeling EPA conducted 
during the rulemaking for the CSAPR rulemaking demonstrates that the 
Huntington-Ashland area would attain and maintain the 1997 
PM2.5 NAAQS even without CAIR or a rule to replace CAIR. 
Nothing in the EME Homer decision undermines that conclusion or 
suggests that the air quality modeling conducted during the rulemaking 
was flawed. As such, there

[[Page 76886]]

is no basis to conclude that it would be improper to redesignate the 
area even in the absence of CAIR. Moreover, the commenter's assertions 
regarding the status of CAIR and the extent to which emission 
reductions associated with CAIR may be relied upon in redesignations 
are flawed for the reasons described below.
    The Commenter points out that EPA made statements that CAIR 
reductions were expiring in 2011 (76 FR 79593, December 22, 2011) and 
were temporary (76 FR 78194, 78200, December 16, 2011; 76 FR 65458, 
65460, October 21, 2011). However, these statements should be viewed in 
light of changes in the legal context of CAIR and CSAPR, which occurred 
subsequent to those statements and had a significant effect on the 
status of CAIR.
    On May 12, 2005, EPA published CAIR, which 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 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 
(D.C. Cir. 2008). In response to the court's decision, EPA issued 
CSAPR, to address interstate transport of NOX and 
SO2 in the eastern United States. See 76 FR 48208 (August 8, 
2011). On August 21, 2012, the D.C. Circuit issued a decision to vacate 
CSAPR. In that decision, it also ordered EPA to continue administering 
CAIR ``pending * * * development of a valid replacement.'' EME Homer 
City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012).\8\

    \8\ The court's judgment is not yet final as the mandate has not 
issued and on October 5, 2012, EPA filed a petition asking for 
rehearing en banc.

    The agency's statements cited by the Commenter must be viewed in 
context: They were made after CSAPR had been promulgated to sunset and 
replace CAIR, and before the D.C. Circuit stayed CSAPR and issued its 
decision in EME Homer to vacate the rule. In that decision, the court 
ordered EPA to continue implementing CAIR until a valid replacement 
rule is promulgated. The decision thus had a significant impact on the 
CAIR programs and EPA's evaluation of the status of emission reductions 
achieved pursuant to those programs. In light of these unique 
circumstances and for the reasons explained below, EPA is finalizing 
the redesignation and the related SIP revision for the Huntington-
Ashland area, including Ohio's plan for maintaining attainment of the 
PM2.5 standard. The air quality modeling analysis conducted 
for CSAPR demonstrates that the Huntington-Ashland area would be able 
to attain the PM2.5 standard even in the absence of either 
CAIR or CSAPR. See ``Air Quality Modeling Final Rule Technical Support 
Document,'' appendix B, B-55 to B-56. This modeling is available in the 
docket for this proposed redesignation action. Nothing in the D.C. 
Circuit's August 2012 decision disturbs or calls into question that 
conclusion or the validity of the air quality analysis on which it is 
    In addition, CAIR remains in place and enforceable until 
substituted by a ``valid'' replacement rule. Ohio's CAIR provisions can 
be found in Ohio Administrative Code Chapter 3745-109. On February 1, 
2008, at 73 FR 6034, EPA approved an ``abbreviated SIP'' covering 
several of Ohio's CAIR provisions, including CAIR NOX 
allocations. On September 25, 2009 (74 FR 48857), EPA approved a full 
CAIR SIP for Ohio incorporating all of Ohio's CAIR provisions. These 
SIP provisions remain in place and are federally enforceable. And, 
because CAIR has been in force since 2005, the monitoring data used to 
demonstrate the area's attainment of the 1997 annual PM2.5 
NAAQS by the April 2010 attainment deadline were impacted by CAIR. CAIR 
reductions began as early as 2007, with full program requirements 
beginning in 2009. However, to the extent that Ohio's redesignation 
request and maintenance plan rely on CAIR, the recent directive from 
the D.C. Circuit in EME Homer 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 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. CAIR thus cannot be replaced until EPA has promulgated a 
final rule through a notice-and-comment rulemaking process, states have 
had an opportunity to draft and submit SIPs, 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. These steps alone 
will take many years, even with EPA and the states acting 
expeditiously. The court's clear instruction to EPA that it must 
continue to administer CAIR until a ``valid replacement'' exists 
provides an additional backstop; by definition, any rule that replaces 
CAIR and meets the court's direction would require upwind states to 
have SIPs that eliminate significant contributions to downwind 
nonattainment and prevent interference with maintenance in downwind 
    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, 696 
F.3d at 38. The accumulated reliance interests include the interests of 
states who reasonably assumed they could rely on reductions associated 
with CAIR which brought certain nonattainment areas into attainment 
with the NAAQS. If EPA were prevented from relying on reductions 
associated with CAIR in redesignation actions, states would be forced 
to impose additional, redundant reductions on top of those achieved by 
CAIR. EPA believes this is precisely the type of irrational result the 
court sought to avoid by ordering EPA to continue administering CAIR. 
For these reasons also, EPA believes it is appropriate to allow states 
to rely on CAIR, and the existing emissions reductions achieved by 
CAIR, as sufficiently permanent and enforceable for purposes such as 
redesignation. Following promulgation of the replacement rule, EPA will 
review SIPs as appropriate to identify whether there are any issues 
that need to be addressed.
    EPA also disagrees with the Commenter that emission reductions 
occurring within the relevant nonattainment area cannot be relied upon 
for the purpose of redesignations if they are associated with the 
emissions trading programs established in CAIR. The case cited by the 
Commenter, NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), does not 
support the Commenter's position and is entirely consistent with EPA's 
position here. That case addressed EPA's determination that the 
nonattainment Reasonably Available Control Technology (RACT) 
requirement was satisfied by the NOX SIP Call trading 
program. The court emphasized that reductions outside the nonattainment 
area do not satisfy the RACT requirement and thus held that because EPA 
had not shown the trading program would result in sufficient reductions 
in a nonattainment area, its determination that the program satisfied 
RACT was not supported.\9\ Id. at 1256-

[[Page 76887]]

58. The court did not hold, as Commenter suggests, that emissions 
trading programs must be ignored when evaluating redesignation 

    \9\ The court specifically elected not to vacate the RACT 
provision and left open the possibility that EPA may be able to 
reinstate the provision for particular nonattainment areas if, upon 
conducting a technical analysis, it finds the NOX SIP 
Call results in greater emissions reductions in a nonattainment area 
than would be achieved if RACT-level controls were installed in that 
area. Id. at 1258.

    There is simply no support for the Commenter's argument that, in 
determining whether to redesignate an area, EPA must ignore all 
emission reductions achieved by CAIR simply because the mechanism used 
to achieve the reductions is an emissions trading program. As a general 
matter, trading programs require total mass emission reductions by 
establishing mandatory caps on total emissions to permanently reduce 
the total mass emissions allowed by sources subject to the programs, 
validated through rigorous continuous emission monitoring and reporting 
regimens. The emission caps and associated controls are enforced 
through the associated SIP rules or FIPs. Any purchase of allowances 
and increase in emissions by one source necessitates a corresponding 
sale of allowances and reduction in emissions by another covered 
source. Given the regional nature of PM2.5, the 
corresponding emission reduction will have an air quality benefit that 
will compensate, at least in part, for the impact of any emission 
increase. In contrast, emission rate limits serve a different purpose 
and do not limit total mass emissions. Total mass emissions can vary 
greatly under emission rate programs as demand and production vary from 
year to year.
    There is no support for the Commenter's contention that the 
presence of allowance banking in a program somehow renders those 
programs' emission reduction requirements impermanent or unenforceable, 
such that EPA must ignore reductions associated with any trading 
program that allows banking. In general, banking provides economic 
incentives for early reductions in emissions and encourages sources to 
install controls earlier than required for compliance with future caps 
on emissions. As Commenter points out, Ohio's submittal states that 
``companies installed more controls'' during the time period that CAIR 
was being developed and promulgated. The flexibility under a cap and 
trade system is not about whether to reduce emissions. Rather, it is 
about how to reduce them at the lowest possible cost. The fact that 
companies anticipate the economic benefits of installing controls 
earlier, and reductions thus may occur more quickly than required 
(freeing up allowances that may then be banked and providing earlier 
health and environmental benefits to the public) does not, in any way, 
undermine the permanence or enforceability of the requirements in the 
underlying rule. The bank itself was factored into the CAIR cap levels 
that were chosen. The bank allows for a ``glide path'' to final cap 
levels (70 FR 25194, May 12, 2005). Further, evaluations have been made 
to see whether banking and trading have created emissions ``hot 
spots.'' For example, since the beginning of the Acid Rain Program, 
there have been no emissions hot spots identified or created as a 
result of the program (see ``The Acid Rain Program Experience: Should 
We Be Concerned About SO2 Emissions Hotspots?'' at http://epa.gov/airmarkets/resource/acidrain-resource.html).
    Additionally, states and localities may impose stricter limits on 
sources to address specific local air quality concerns. These limits 
must be met regardless of a source's accumulated allowances.
    In sum, contrary to Commenter's contention, the decision of the 
D.C. Circuit in NRDC v. EPA does not establish that emission reductions 
from cap-and-trade programs, or emission reductions from cap-and-trade 
programs that allow banking, may not be relied upon for redesignations. 
For the reasons explained above, EPA disagrees that the Commenter has 
identified a basis on which EPA should disapprove Ohio's redesignation 
    EPA also notes that CAIR is not the only permanent and enforceable 
measure affecting EGU emission reductions in the Huntington-Ashland 
area. There have been several consent decrees in the area affecting 
EGUs. First, in the Kentucky portion of the Huntington-Ashland Area, 
the Big Sandy Power Station was required by a federally enforceable 
consent decree \10\ and 2007 settlement agreement to install and 
continuously operate selective catalytic reduction (SCR) to reduce 
NOX emissions from Unit 2 beginning January 1, 2009. The 
plant is also required to install and continuously operate flue gas 
desulfurization (FGD) to reduce SO2 emissions from Unit 2 
beginning December 31, 2015. Operation of FGD controls has a co-benefit 
of reducing direct PM2.5 emissions as well. In the Ohio and 
West Virginia portions of the Area, a federally enforceable consent 
decree \11\ and 2007 settlement agreement require the General James M. 
Gavin Power Plant (Ohio) and Mountaineer Power Plant (West Virginia) to 
install and continuously operate SCR and FGD on specified units and the 
Philip Sporn Plant (West Virginia) to retire, retrofit, or re-power one 
unit. Another consent decree,\12\ to which EPA was not a party, 
requires the J.M. Stuart Power Plant (Ohio) to install and continuously 
operate SCR on all of its units. To the extent that power plant 
emission reductions contributed to attainment in the Huntington-Ashland 
Area, these reductions are permanent and enforceable.

    \10\ Entered with the United States District Court For The 
Southern District Of Ohio Eastern Division (United States of America 
and State Of New York, et al., v. American Electric Power Service 
Corp., et al., No. C2-99-1250 and 1182 (consolidated)).
    \11\ Id.
    \12\ Entered with the United States District Court For The 
Southern District Of Ohio, Eastern Division (Sierra Club and Marilyn 
Wall v. The Dayton Power and Light Company, Duke Energy Ohio, Inc., 
and Columbus Southern Power Co., Civil Action No. 2: 04-cv-905).

    Comment 1b: The Commenter claims that ``EPA's proposal indicates 
that is relying heavily on CSAPR to justify its redesignation of the 
Huntington-Ashland area.'' The Commenter argues that EPA cannot rely on 
CSAPR, because it has been stayed,\13\ thus imposing no emission 
reductions or emission limits, and therefore cannot be found to impose 
permanent and enforceable emission reductions. The Commenter also notes 
that EPA's proposal of revisions to CSAPR undermines EPA's ability to 
analyze whether reductions required by CSAPR will achieve attainment in 
the Huntington-Ashland area. Furthermore, Commenter argues that CSAPR 
cannot be relied upon to redesignate the Huntington-Ashland area into 
attainment unless the D.C. Circuit affirms the rule. The Commenter also 
objects to reliance on CSAPR because CSAPR, as a trading program, does 
not impose emission limits on the sources impacting air quality in the 
Huntington-Ashland area that are at least as stringent as those 
sources' actual 2008 emission rates. Specifically, the Commenter argues 
that CSAPR does not result in permanent and enforceable reductions 
because individual sources that impact the area can comply with the 
rule by either meeting their emission budgets or by obtaining emission 
credits from other sources that do not impact the air quality in the 
Huntington-Ashland area; and because under CSAPR, sources can bank 

    \13\ The rule was stayed as of the time of submission of 
comments; it has since been vacated by the D.C. Circuit and 
petitions for rehearing en banc are pending.

    Response 1b: Contrary to Commenter's contention, EPA's

[[Page 76888]]

conclusion that the area has met the requirements for redesignation 
does not rely on and is not dependent on CSAPR being in place. Ohio's 
maintenance plan does not rely on future emission reductions from 
CSAPR, and thus EPA's basis for redesignation of the area from 
nonattainment to attainment is unaffected by the status of CSAPR. 
Instead, Ohio relied on CAIR in its maintenance plan, and as discussed 
in EPA's response to comment 1a, such reliance is appropriate in this 
context. EPA did not rely on CSAPR to provide a basis for redesignating 
the area from nonattainment to attainment. Rather, EPA's statements 
about CSAPR in the proposal were made in the context of CAIR's imminent 
replacement by CSAPR. The Huntington-Ashland area has attained the 1997 
annual PM2.5, and continues to attain the standard as shown 
in the monitoring data provided above. The state of Ohio has shown that 
the emission reductions that led to the monitored attainment were due 
to many permanent and enforceable measures, including federal mobile 
vehicle standards, CAIR and consent decrees. At proposal, EPA noted 
that CSAPR had been promulgated to replace CAIR but that redesignation 
of Huntington-Ashland was still appropriate, because reductions 
achieved by CSAPR in this area would be equivalent to or greater than 
those achieved by CAIR. Since the proposal, the D.C. Circuit has issued 
a decision to vacate CSAPR; thus in this action EPA is evaluating 
Ohio's maintenance plan as submitted, including the emission reductions 
associated with CAIR. The redesignation of the Ohio portion of the 
Huntington-Ashland area meets the requirements under section 
107(d)(3)(iii) without any reductions associated with CSAPR.
    Comment 1c: The Commenter states that it is arbitrary for EPA to 
use only one year in determining whether permanent and enforceable 
emission reductions led to air quality improvements, because cap-and-
trade programs allow for varied emissions year to year. Moreover, the 
Commenter states that analyzing the year 2008 poses further problems, 
because it marked the beginning of a major economic downturn and EPA 
provided no analysis of whether the recession was a factor in the 
improvements in air quality.
    Response 1c: EPA's conclusion here is fully supported by the facts 
and applicable legal criteria. EPA's longstanding practice and policy 
\14\ provides for states to demonstrate permanent and enforceable 
emissions reductions by comparing nonattainment area emissions 
occurring during the nonattainment period (represented by emissions 
during one of the years during the 3-year nonattainment period, in this 
case 2005) with emissions in the area during the attainment period 
(represented by emissions during one of the three attainment years, in 
this case 2008, which is included in the 3-year period, 2007-2009, that 
the State used to show attainment with the 1997 annual PM2.5 
standard). A determination that an area has attained the 1997 annual 
PM2.5 standard is based on an objective review of air 
quality data in accordance with 40 CFR 50.13 and Appendix N of part 50, 
based on 3 complete, consecutive calendar years of quality-assured air 
quality monitoring data. In the State's redesignation request, Ohio 
considered data for the 2007-2009 time period to demonstrate 
attainment. In EPA's determination of attainment and proposed approval 
of the redesignation request, EPA considered data for the 2008-2010 
time period, which was the most recent quality-assured, certified data 
available. See 76 FR 55542 (September 7, 2011), 76 FR 79593 (December 
22, 2011). In this final rulemaking, EPA is also considering the area's 
continued attainment based on complete, quality-assured certified data 
for 2009-2011. EPA has also considered preliminary data showing the 
area has continued to monitor attainment through 2012. Therefore, 
selecting 2008 as a representative attainment year, and comparing 
emissions for this year to those for a representative year during the 
nonattainment period, 2005, is an appropriate and long-established 
approach that demonstrates improvements in air quality as a result of 
the imposition of emission reductions in the area between the years of 
nonattainment and attainment. For example, see recent redesignations 
such as 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).

    \14\ See September 4, 1992 memorandum from John Calcagni 
entitled ``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' pp. 4 and 8-9.

    EPA disagrees with the Commenter's contention that using a single 
attainment year is arbitrary due to year to year variations in emission 
levels resulting from cap-and-trade programs, and that 2008 was a 
``problematic'' year to select for analysis. As noted above, data for 
2008-2010 and 2009-2011 as well as preliminary data for 2012 show 
continued attainment of the standard. Although the Commenter points out 
one monitor's reading that approached the threshold in 2010, the fact 
remains that Huntington-Ashland is in attainment and has been in 
    With respect to the Commenter's assertion that EPA has conducted no 
analyses to prove that emission reductions between 2005 and 2008 led to 
reduced PM2.5 concentrations, as noted above, comparing 
emissions for a representative nonattainment year to emissions for a 
representative attainment year is consistent with longstanding practice 
and EPA policy for making such a demonstration. The CAA does not 
specifically require the use of modeling in making any such 
demonstration and it has not been the general practice to do so. While 
the Commenter expressed concerns that an economic downturn was 
responsible for the improvement in air quality, the Commenter has made 
no demonstration that the reduction in emissions and observed 
improvement in air quality is due to an economic recession, changes in 
meteorology, or temporary or voluntary emissions reductions.
    In contrast, in EPA's proposed redesignation of the Kentucky 
portion of the Huntington-Ashland area 77 FR 69409 (November 19,2012), 
EPA provided a technical analysis showing that emission reductions from 
EGUs in the Huntington-Ashland area exceed average emission reductions 
seen in EGUs subject to decreased electrical demand, i.e., the economic 
recession. A summary of the emission changes from 2005 to 2011 for the 
entire Huntington-Ashland Area is provided in Table 2 below. Table 3 
summarizes EPA's analysis showing reductions of SO2 and 
NOX emissions, in tons per year (tpy) across the Huntington-
Ashland area for 2005-2011 for all the coal-fired EGUs in the area. 
There were reductions in SO2 and NOX emissions 
for all facilities with two exceptions. At the General J.M. Gavin 
facility, the 2011 SO2 emission rate was nearly the same as 
the 2005 rate, but production was higher in 2011 than in 2005. Thus the 
slight increase in emissions was in no way related to the fact that 
CAIR is an emissions trading program. As stated earlier, limitations on 
emission rates do not ensure total mass emissions are limited. And at 
the Kyger Creek facility, the 2011 emission rate was slightly higher 
than the 2005 rate; however, the slight increase was directly related 
to the facility's strategy to reduce emissions. The facility installed 
a scrubber to control SO2 in 2012. The company originally 
planned to install the controls by 2011 and therefore switched to 
higher sulfur coal

[[Page 76889]]

then. Now that the scrubber is installed, 2012 emission reductions are 
on track to be as much as 65,000 tons lower than in 2005 putting Ohio 
reductions for 2012 around 169,000 tons,\15\ as compared to 2005 
emissions. Emission reductions have been greater than decreases in 
emissions that could be attributed to any decrease in electrical demand 
in the Huntington-Ashland Area. While the average SO2 and 
NOX emission reductions from coal fired power plants in the 
Huntington-Ashland Area for the period 2005-2011 were 31 percent and 68 
percent, respectively, the average facility power production in terms 
of heat input decreased by only about 5 percent during the same period. 
EPA finds that Ohio's 2008 inventory is a suitable representation of 
emissions during the period when the Huntington-Ashland area came to 
attain the standard.

    \15\ Final 2012 emission reductions will not be known until 
early 2013 when fourth quarter emissions data is submitted by the 
    \16\ Data reflects reported actual emissions from the Clean Air 
Markets Division Database at http://ampd.epa.gov/ampd/.

  Table 2--Actual Emission Reductions From Coal Fired EGUs in the Huntington-Ashland Area for the Period 2005-
                                                                 Emissions differences from 2005 to 2011 (tpy)
                      Facility--county                                       Percent                   Percent
                                                                  SO2       reduction       NOX       reduction
KY: Big Sandy--Lawrence County..............................        7,958           16        5,862           47
    Mountaineer--Mason County...............................       40,972           95       10,395           82
    Phil Sporn--Mason County................................       28,334           72        6,896           77
    JM Stuart--Adams County.................................       97,784           92       16,662           68
    Killen Station--Adams County............................       11,845           61        2,353           39
    Gen J M Gavin--Gallia County............................       -5,299          -19       31,720           82
    Kyger Creek--Gallia County..............................      -70,497          -97        9,144           50

  Table 3--Actual Emission Reductions From Coal Fired EGUs in the Huntington-Ashland Area for the Period 2005-
                                                 2011, by State
                                 [Emissions differences from 2005 to 2011 (tpy)]
                                                                             Percent                   Percent
                            State                                 SO2       reduction       NOX       reduction
KY..........................................................        7,958           16        5,862           47
WV..........................................................       69,306           84       17,291           80
OH..........................................................       33,833           15       59,878           68
    Total...................................................      111,097           31       83,030           68

    Comment 1d: The Commenter observes that Ohio cites the availability 
of cheap natural gas as one of the causes of attainment. The Commenter 
asserts that cheap natural gas is not a permanent and enforceable 
emissions limit, and states that because EPA has not determined whether 
the improvement in air quality was dependent on the presence of cheap 
natural gas, EPA must disapprove the redesignation request.
    Response 1d: In determining that the improvement in air quality was 
due to permanent and enforceable emissions reductions, EPA did not cite 
or rely upon cheap natural gas as a permanent and enforceable limit. In 
its proposed rulemaking, EPA identified multiple permanent and 
enforceable measures (76 FR 79593), including, but not limited to 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, consent decrees, 
CAIR, and the NOX SIP Call. Permanent and enforceable 
measures set an enforceable limit, and the emission standard that must 
be met is independent of the choice of fuel. Further, as mentioned 
above, the large coal-fired electric generating units continued to run 
at or near the same amount over the years evaluated.
    Comment 2a: The Commenter claims that ``EPA has failed to conduct 
an adequate analysis under CAA 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, ``EPA has not conducted an 
adequate analysis of the effect redesignation will have on other 
National Ambient Air Quality Standards''.
    Response 2a: 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 is obligated under section 110(l) 
to consider whether a revision would ``interfere with'' attainment or 
applicable requirements. For example, 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). In its review, EPA has indeed 
considered its obligations under section 110(l). In acting on Ohio's 
redesignation request and maintenance plan for the 1997 annual 
PM2.5 NAAQS, Ohio did not revise or remove any existing 
emissions limit for any NAAQS, nor do they alter any existing control 
requirements. Thus, EPA concludes that

[[Page 76890]]

the redesignation will not interfere with attainment or maintenance of 
any other air quality standard. The Commenter provides no information 
in its comment to indicate that redesignation would have any impact on 
the area's ability to comply with 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. The redesignation does not relax any existing rules or limits, 
nor will it adversely alter the status quo air quality.\17\ In fact, 
the maintenance plan submitted by Ohio demonstrates a decline in the 
direct PM2.5 and PM2.5 precursor emissions over 
the timeframe of the maintenance period. EPA therefore concludes that 
there is no basis for concluding that the redesignation might interfere 
with attainment of any standard or with satisfaction of any other 
requirement, and thus EPA finds that section 110(l) does not prohibit 
EPA from approving the redesignation request and the maintenance SIP 

    \17\ EPA notes that the Huntington-Ashland 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.

    Comment 2b: The Commenter states that the Ohio SIP does not 
currently have RACT standards in place for PM2.5, and that 
implementation of such standards would have reduced NOX and 
SO2, and helped 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. The 
Commenter contends that EPA should demonstrate that the absence of this 
alleged co-benefit will not interfere with attainment, reasonable 
further progress and any other applicable requirement.''
    Response 2b: EPA disagrees with the Commenter that the Ohio SIP 
does not comply with the applicable RACT requirements. EPA has 
previously set forth its interpretation of 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 has satisfied the 
RACT requirement without need for further measures. EPA's memorandum of 
May 22, 2008, clarified and fully explained EPA's view of the 
relationship between PM2.5 attainment and RACT requirements. 
Memorandum from William T. Harnett, Director, Air Quality Policy 
Division to Regional Air Division Directors, entitled, 
``PM2.5 Clean Data Policy Clarification.''
    This memorandum explained that 40 CFR 51.1004(c) provides that a 
determination that an area has attained the PM2.5 standard 
suspends the requirements to submit RACT and Reasonably Achieved 
Control Measures (RACM) requirements.
    40 CFR 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 Reasonable Further Progress (RFP) 
    Thus the regulatory text itself 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). Thus, EPA is correct 
in its conclusion here that the RACT requirement has been satisfied, 
and it does not result in interference with attainment or with other 
applicable requirements. The mere fact that EPA has correctly 
determined that the area meets the RACT requirements for the 1997 
PM2.5 standard, and that thus no more is required under that 
standard, does not result in interference with attainment of other 
    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 
    Comment 2c: The Commenter contends that it is inappropriate for EPA 
to redesignate the area 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 has recommended adoption of a lower NAAQS. The Commenter 
alleges that EPA is removing the protection of the 1997 NAAQS, while 
not adopting a more protective standard.
    Response 2c: EPA finds that the concerns expressed by the Commenter 
are unfounded here. First, this redesignation does not remove the 
protection of the 1997 annual PM2.5 NAAQS; it does not relax 
control requirements or implementation for the 1997 NAAQS. Nor does the 
redesignation in any way address or affect the area's obligations under 
the new NAAQS. Its purpose and function is to focus solely on the 1997 
annual PM2.5 NAAQS, and it has no impact on EPA's position 
with respect to requirements for the area under a revised NAAQS.
    Also, on December 14, 2012, EPA finalized a rule revising the 
PM2.5 annual standard to 12 [mu]g/m\3\ based on current 
scientific evidence regarding the protection of public health. EPA 
notes that the newly proposed standard is independent of this action, 
and the newly proposed standard does not affect the redesignation of 
the Huntington-Ashland area for the 1997 annual PM2.5 
    Comment 3: The Commenter asserts that ``Emissions calculations for 
on-road mobile sources fail to consider 15% ethanol in gasoline 
    Response 3: In 2010 and 2011, EPA granted partial waivers for use 
of E15 in model year (MY) 2001 and newer light-duty motor vehicles (75 
FR 68094 and 76 FR 4662). As discussed in the waiver decisions, there 
may be some small emission impacts from the use of E15. E15 is expected 
to cause a small immediate emissions increase in NOX 
emissions. However, due to its lower volatility than the 10% ethanol 
gasoline currently in-use, its use is also expected to result in lower 
evaporative emissions. Other possible emissions impacts may be from the 
misfueling of E15 in vehicles or engines for which its use is not 
approved, i.e., MY2000 and older motor vehicles, heavy-duty engines and 
vehicles, motorcycles and all nonroad engines, vehicles and equipment. 
EPA has promulgated a separate rule dealing specifically with the 
mitigation of misfueling to reduce the potential emissions impacts from 
misfueling (76 FR 44406).
    However, the E15 partial waivers do not require that E15 be made or 
sold and it is unclear if and to what extent E15 may even be used in 
Ohio. Even if E15 is introduced into commerce in Ohio, considering the 
likely small and offsetting direction of the emission impacts, the 
limited set of motor vehicles approved for its use, and the measures 
required to mitigate misfueling, EPA believes that any potential 
emission impacts of E15 will be less than the maintenance plan safety 
margin by which Ohio shows maintenance.
    Commment 4a: The Commenter asserts that the Ohio maintenance plan 
is deficient in part because the contingency measures it includes 
provide for their implementation within 18 months of a monitored 
violation, if

[[Page 76891]]

one occurs. The Commenter claims that as a consequence, the 
``contingency measures do not provide for prompt correction of 
    Response 4a: 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 adopted contingency measures, and finding that implementation 
within 18 months of a violation complies with the requirements of 
section 175A.\18\ See recent redesignations, e.g. 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 Huntington-Ashland 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.

    \18\ See examples in recent redesignations, e.g. Lake and Porter 
County portion of Chicago 1997 8-hour ozone nonattainment area 75 FR 
12090 May 11, 2010, and Lake and Porter County portion of Chicago 
1997 PM2.5 annual standard 76 FR 59600, September 27, 

    Comment 4b: The Commenter asserts the maintenance plan does not 
demonstrate maintenance because EPA cannot rely on CSAPR to ensure 
maintenance in the Huntington-Ashland area.
    Response 4b: EPA disagrees with the Commenter's assertion that the 
Huntington-Ashland area relies on CSAPR for maintenance. Ohio has used 
future emission reduction projects to meet the maintenance plan 
requirement under section 175A of the CAA, and has submitted a 
maintenance plan that extends 10 years past the redesignation. The 
Commenter improperly interprets EPA's references to CSAPR reductions in 
the proposal redesignation notice (found in Tables 5 and 6). EPA 
referred to CSAPR because Ohio had incorporated CAIR reductions in the 
emissions inventory, and that EPA believed at the time of proposal that 
CSAPR (which at the time had not yet been stayed) would allow for 
greater emission reductions both regionally and from local 
implementation than CAIR had provided. EPA therefore concluded in the 
proposal that the emission projections cited in Ohio's submittal were 
conservative, and still well below attainment year emissions. Since the 
proposal, CSAPR has been stayed; however, the emission reductions 
projected by Ohio, which were based on continued implementation of 
CAIR, in Ohio's maintenance plan are still valid and are significantly 
less than attainment year emissions. Ohio has met the requirements of 
175A, without CSAPR in place.
    EPA also has modeling, included in the docket for this rulemaking, 
which projects that the Huntington-Ashland area will maintain the 1997 
annual PM2.5 NAAQS without CSAPR or CAIR. See appendix B to 
the Air Quality Modeling Final Rule Technical Support Document for 
CSAPR. The modeling analysis was a rigorous analysis using CAMx, a 
photochemical grid model which models PM2.5 concentrations 
arising both from direct PM2.5 emissions, as well as from 
formation from precursors (NOX and SO2) on a 
regional scale level. Extensive quality assurance and control measures, 
such as model calibration and sensitivity were taken into account. An 
in-depth discussion of the modeling is found in the docket. The 
analysis projected concentrations at current monitor locations for the 
Huntington-Ashland area using emissions inventories without CAIR and 
CSAPR for 2012 and 2014. Modeled results projected maximum 
concentrations of PM2.5 at 13.92 [mu]g/m\3\ (Lawrence 
County), and 13.26 [mu]g/m\3\ (Scioto County) for 2012. Those sites 
have current design values 2-3 [mu]/m\3\ lower than the conservative 
modeled results. For the year 2014, EPA modeled maximum concentrations 
at these two sites as 13.32 and 12.71 [mu]g/m\3\, respectively, without 
CAIR or CSAPR emission reductions.
    Further, Ohio's maintenance plan provides for verification of 
continued attainment by performing future reviews of triennial 
emissions inventories. It also includes contingency measures to ensure 
that the NAAQS is maintained into the future if monitored increases in 
ambient PM2.5 concentrations occur (76 FR 79593, December 
22, 2012). For these reasons, EPA finds that Ohio has submitted a 
maintenance plan that meets the requirements of 107(d)(3)(E)(iv) and 
    Comment 5: The Commenter argues that due to certain start-up, 
shutdown and malfunction (SSM) provisions contained in the Ohio SIP, 
emission reductions in Ohio cannot be due to ``permanent and 
enforceable reductions in emissions resulting from implementation of 
applicable implementation plan and Federal air pollutant control 
regulations and other permanent and enforceable reductions;'' and the 
state cannot have met ``all requirements applicable to the area under 
section 7410 of this title and part D of this subchapter,'' citing 42 
U.S.C. 7407(d)(3)(E). The Commenter points out that excess emissions 
from sources during SSM events may be subject to automatic or 
discretionary `exemption' under the Ohio SIP as currently constituted. 
The Commenter urges that Ohio's SSM regulations should be revised to 
``clearly comply'' with the CAA and with EPA guidance (providing 
citations) such that all excess emissions are violations of the CAA, 
and to preserve the authority of EPA and citizens to enforce the SIP 
standards and limitations. The Commenter argues that these existing 
provisions in the Ohio SIP preclude redesignation of this area to 
attainment for the 1997 PM2.5 standards.
    Response 5: EPA does not agree that the SSM provisions in the Ohio 
SIP provide a basis for disapproving the redesignation request for this 
area at this time. The provisions that the Commenter objects to are 
approved provisions of the Ohio SIP. As such, the

[[Page 76892]]

emission limits that contain the SSM provisions objected to by the 
Commenter are ``permanent and enforceable'' SIP provisions. The 
Commenter expresses concerns about certain exemptions for excess 
emissions within those existing provisions, but that does not affect 
whether the provisions are permanent and enforceable for purposes of 
redesignations. Similarly, the Commenter expresses concern that these 
existing provisions are not consistent with other requirements of the 
CAA, but as of this time those provisions are part of the approved Ohio 
SIP. EPA is in the process of addressing SSM provisions in the Ohio SIP 
through an on-going nationwide process, and in the event that EPA 
determines the provisions to be problematic, EPA can address them in 
that more appropriate context.
    The CAA sets forth the general criteria for redesignation of an 
area from nonattainment to attainment in section 107(d)(3)(E). These 
criteria include that the Administrator has fully approved the 
implementation plan for area for applicable requirements, 42 U.S.C. 
7407(d)(3)(E)(ii)and (v). EPA must also determine that the improvement 
in air quality is due to reductions that are ``permanent and 
enforceable'' (iii), and that the area has an approved maintenance plan 
under section 175A. EPA has fully addressed all these criteria in its 
proposed and final rulemakings on the redesignation of the Ohio portion 
of the Huntington-Ashland Area. The SSM-related SIP provisions 
identified in the Commenter's letter are already approved, portions of 
the Ohio SIP, and EPA is not required to re-evaluate or revise them as 
part of this redesignation. EPA's review here is limited to whether the 
already approved SSM provisions impact any redesignation requirement in 
section 107(d)(3)(E), so as to preclude EPA from approving the 
redesignation request. There is no basis for EPA to conclude that these 
provisions have such effect. First, it has long been established that 
in approving a redesignation request EPA may rely on prior SIP 
approvals plus any additional measures it may approve in conjunction 
with a redesignation action. See John Calcagni Memorandum (September 4, 
1992 at 3); 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); 68 FR 25413, 25426 (May 12, 2003).
    While the Commenter takes the position that specific SSM provisions 
in the Ohio rules result in a ``regulatory structure that is 
inconsistent with the fundamental requirement that all excess emissions 
be considered violations,'' the Commenter does not link this concern 
with any specific deficiencies in Ohio's redesignation submittal for 
the Huntington-Ashland Area.\19\

    \19\ The Commenter also cites the EPA action on a Utah SIP at 75 
FR 70888, 70892 (Nov. 19, 2010) as a redesignation that was 
disapproved due to SSM provisions. However, this action was not a 
redesignation disapproval. That rulemaking was in fact a ``Finding 
of Substantial Inadequacy of Implementation Plan; Call for Utah 
State Implementation Plan Revision'', otherwise known as a ``SIP 
Call,'' and not a redesignation.

    The Commenter expressed concerns that some specific existing SIP 
provisions contain exemptions for excess emissions such that the 
emission limits are not ``permanent and enforceable'' for purposes of 
section 107(d)(3)(E)(iii). EPA disagrees with this conclusion because 
the provisions are contained within the existing approved SIP and thus, 
in the context of 107(d)(3), are both ``permanent and enforceable''. 
The Commenter may take issue with some features of those provisions, 
which contain automatic and discretionary exemptions for excess 
emissions, but these provisions, in the form in which they exist, are 
currently approved in the SIP and thus considered ``permanent and 
    EPA is in the process of evaluating SSM provisions in a separate 
context. While EPA understands that the Commenter wishes to raise 
concerns that about Ohio's existing SIP provisions with SSM exemptions, 
in the context of a redesignation action, EPA is not required to re-
evaluate the validity of previously approved SIP provisions. In the 
context of a redesignation action, that generally a state has met the 
requirements of section 107(d)(3)(E)(ii) and (v), because the 
provisions have been previously approved into the SIP by EPA. If these 
provisions are later or separately determined to be deficient, such as 
compliance with other relevant requirements of the CAA, then EPA will 
be able to evaluate those concerns in the appropriate context. EPA 
notes that, in another, separate proceeding, EPA is in the process of 
evaluating similar comments relating to other SSM provisions.
    On June 30, 2011, Sierra Club filed a ``Petition to Find Inadequate 
and Correct Several State Implementation Plans under section 110 of the 
Clean Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance 
Provisions''. As part of settlement of a lawsuit, EPA has agreed to 
take action in response to this petition. See Sierra Club et al. v. 
Jackson, No. 3:10-cv-04060-CRB (N.D. Cal). The comments regarding Ohio 
SSM provisions submitted in this redesignation action raise similar 
concerns to those identified by the petitioner in the Ohio-specific 
portion of the above-referenced petition. EPA is currently reviewing 
these Ohio SSM provisions as part of EPA's evaluation of the petition, 
and of other SSM provisions across the nation. Thus, EPA will be 
addressing those concerns in that separate action. EPA's redesignation 
of the Ohio portion Huntington-Ashland area to attainment for 1997 
annual PM2.5 does not affect or preclude EPA from taking 
appropriate action on the from requiring the State of Ohio and other 
states to address excess emissions during SSM events correctly for 
purposes of CAA requirements in both nonattainment and attainment 
    At this time, with regard to the redesignation of the Ohio portion 
of the Huntington-Ashland area, Ohio has a fully approved SIP. The 
provisions to which the Commenter objects are permanent and 
enforceable, as those terms are meant in section 107(d)(3). In 
addition, the area has attained the annual PM2.5 standard 
since 2009, and has demonstrated that it can maintain the standard for 
at least ten years. EPA notes, moreover, that it is approving 
contingency measures under section 175A(d), as part of the area's 
maintenance plan. These measures provide assurance that the area can 
promptly correct a violation that might occur after redesignation. 
Finally, if, in the future, EPA concludes the provisions identified by 
the Commenter are problematic, EPA will be able to address that concern 
in a separate action.
    Comment 6a: The Commenter contends that the Ohio SIP lacks required 
SIP provisions, asserting that section 172(c) of the CAA requires SIPs 
to include a RFP plan, a PM2.5 attainment demonstration, 
contingency measures, nonattainment New Source Review (NSR) rules, and 
RACM/RACT rules and that EPA has not approved these items into the Ohio 
    Response 6a: For a number of reasons, EPA disagrees with the 
Commenter's contentions that approvals of the cited measures is 
required for purposes of redesignation. First, pursuant to 40 CFR 
51.1004(c), EPA's final determination that the Huntington-Ashland area 
has attained the PM2.5 standard suspended Ohio's obligation 
to submit attainment-related planning requirements that would otherwise 
apply, including an attainment demonstration, RFP, RACM/RACT, and 
contingency measures under section 172(c). The substance and legal 
basis of 40 CFR 51.1004(c), which

[[Page 76893]]

embodies EPA's interpretation under its ``Clean Data Policy,'' has been 
upheld by the D.C. Circuit Court. NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 

    \20\ See also Sierra Club v. EPA, 99 F. 3d 1551 (10th Cir. 
1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); and Our 
Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 
2005) (memorandum opinion).

    Moreover, prior to the promulgation of 40 CFR 51.1004(c) the 
General Preamble for Implementation of Title I (57 FR 13498, April 16, 
1992) addressed the role of attainment-related planning requirements in 
the specific context of EPA's consideration of a redesignation request. 
The General Preamble sets forth EPA's view of applicable requirements 
for purposes of evaluating redesignation requests when an area is 
attaining a standard (General Preamble for Implementation of Title I 
(57 FR 13498, April 16, 1992)).
    In the context of redesignations, EPA has interpreted requirements 
related to attainment as not applicable for purposes of redesignation.
    The General Preamble explains that, in the context of a 
redesignation to attainment, when EPA determines that attainment has 
been reached, no additional measures are needed to provide for 
attainment. Thus 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. The RFP requirement under section 
172(c)(2) and contingency measures requirement under section 172(c)(9) 
are similarly not relevant for purposes of redesignation. The General 
Preamble stated:

    [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. ``General Preamble for the Interpretation of Title I of 
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR 
13498, 13564 (April 16, 1992).

    See also Calcagni memorandum at 6 (``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.''). With respect to nonattainment NSR 
requirements, see EPA's response to Comment 6c, below.
    Comment 6b: The Commenter contends that the Ohio SIP lacks approved 
contingency measures. The Commenter asserts that contingency measures 
must be in place so that, if an area monitor shows a violation of the 
NAAQS in the future, that violation of the NAAQS is quickly addressed, 
minimizing the number of people that will be harmed by air quality 
levels above the NAAQS.
    Response 6b: As explained in the response to the previous comment 
(6a), the nonattainment area contingency measure requirements of 
section 172(c)(9) are directed at ensuring RFP and attainment by the 
applicable date. These nonattainment area requirements no longer apply 
after an area has attained the standard and after the area has been 
redesignated to attainment. Under section 175A of the CAA, a 
maintenance plan must contain contingency provisions, ``as deemed 
necessary by the Administrator,'' and it is these contingency measures 
that apply to the area after redesignation to attainment. Ohio has 
included such provisions in its maintenance plan, which EPA is 
approving in this action.
    Ohio has committed to remedy a future violation that may occur 
after redesignation, and has included measures to address potential 
violations from a range of sources, as well as a timeline for promptly 
completing adoption and implementation. The state has identified 
measures that are sufficiently specific but which allow for latitude in 
potential scope. EPA believes that the contingency measures set forth 
in the submittal, combined with the state's commitment to an 
expeditious timeline and process for implementation, provide assurance 
that the State will promptly correct a future potential violation. The 
contingency measures, as part of the maintenance plan, are codified 
into the state's SIP at the time the area is redesignated to attainment 
effective upon publication.
    Comment 6c: The Commenter asserts that the Ohio SIP lacks a 
PM2.5 nonattainment NSR program. The Commenter also contends 
that the prevention of significant deterioration (PSD) program that is 
part of the SIP that an area being redesignated needs to ensure that 
the area will stay in attainment. The Commenter takes the position that 
EPA cannot approve the redesignation request because Ohio does not have 
an adequate PM2.5 PSD program. The Commenter bases his 
conclusion that Ohio's PSD program is 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: Ohio has an approved nonattainment NSR program in its 
SIP. EPA approved Ohio's current NSR program on January 10, 2003 (68 FR 
1366). Nonetheless, for purposes of evaluating a request for 
redesignation to attainment, because PSD requirements will apply after 
redesignation, EPA's longstanding view is that the area need not have a 
fully-approved nonattainment NSR program, 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, ``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, Ohio has not relied upon NSR to 
maintain the standard.
    Congress used the undefined term ``measure'' differently in various 
provisions of the CAA, which indicates that the term is susceptible to 
more than one interpretation and that EPA has the discretion to 
interpret it in a reasonable manner in the context of section 175A. See 
Greenbaum v. United States EPA, 370 F. 3d 527, 535-38 (6th Cir. 2004). 
(court ``find[s] persuasive the EPA's argument that the very nature of 
the NSR permit program supports its interpretation that it is not 
intended to be a contingency measure pursuant to section 175A(d).'') It 
is reasonable to interpret ``measure'' to exclude part D NSR in this 
context because PSD, a program that is the corollary of part D NSR for 
attainment areas, goes into effect in lieu of part D NSR upon 
redesignation. PSD requires that new sources demonstrate that emissions 
from their construction and operation will not cause or contribute to a 
violation of any NAAQS or PSD increment. The state has demonstrated 
that the area will be able to maintain the standard without part D NSR 
in effect, and the state's PSD program will become effective in the 
area upon redesignation to attainment. See the rationale set forth at 
length in the Nichols Memorandum. For other explanations of why full 
approval and retention of NSR is not required in redesignation actions, 
see the following redesignation rulemakings: 60 FR 12459, 12467-12468 
(March 7, 1995)(Redesignation of Detroit, MI); 61 FR 20458, 20469-20470 
(May 7,

[[Page 76894]]

1996)(Cleveland-Akron-Lorrain, OH); 66 FR 53665, 53669 (October 23, 
2001) (Louisville, KY); 61 FR 31831, 31836-31837 (June 21, 1996) (Grand 
Rapids, MI). Contrary to the Commenter's assertion, the Greenbaum court 
declined to reach the issue of whether full approval of a part D NSR 
program is required prior to redesignation. See Greenbaum, 370 F. 3d at 
    Ohio also has an EPA approved PSD program that includes 
PM2.5 as a NSR pollutant. While the Commenter is correct in 
stating that both Ohio approved PSD SIPs do not include specific 
significant emissions rates for PM2.5 or its precursors, the 
Ohio SIP does 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.
    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 
for direct PM2.5 and/or the pertinent precursor.
    In addition, the fact that Ohio's approved PSD SIPs lack 
PM2.5 increments does not prevent the program from 
addressing and helping to 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 approved PSD program is adequate for purposes of 
assuring maintenance of the 1997 annual PM2.5 standard as 
required by section 175A.
    Comment 6d: The Commenter contends that the Ohio SIP does not have 
approved RACT rules.
    Response 6d: This comment has been addressed above, in response 2b.
    Comment 6e: The Commenter claims that 42 U.S.C. 7502(c)(7) requires 
that the nonattainment SIP meet all the requirements of 42 U.S.C. 
7410(a)(2). EPA interprets this to mean only the Infrastructure 
elements that are linked to the nonattainment area. EPA's position 
contradicts the plain language of the statute. The Commenter also 
states that EPA says that it disapproved the Section 110(a)(2)(D)(i) 
portion of the Ohio Infrastructure submittal but did not take action on 
the rest of the September 4, 2009, submittal. 76 FR 79595. However, EPA 
did not explain what is included in the September 4, 2009, submittal 
and did not provide the September 4, 2009, submittal in the docket.
    Response 6e: For a number of reasons, the concerns expressed by the 
Commenter are unfounded. First, EPA has issued final approvals of 
Ohio's infrastructure SIP for 1997 ozone and PM standards for all 
portions of 110(a) 2 requirements (76 FR 23757, April 28, 2011). EPA 
also acted on Ohio's submittal of the 2006 PM infrastructure SIP 
(proposed 76 FR 6376, February 4, 2011, finalized 76 FR 43175, July 20, 
2011) where EPA disapproved the state's use of CAIR to fulfill the 
requirements of 110(a)2(D). EPA notes that there was an editorial error 
in the Federal Register citation (but not the date of publication) of 
the 2006 infrastructure disapproval in the proposed redesignation; 
however, this has been fixed in the reference above, and a full 
submittal can be found in that docket. Even with this disapproval on 
February 4, 2011, the approval of the 1997 PM infrastructure elements 
on April 28, 2011, fulfills the ``fully approved'' SIP elements 
associated with redesignation, with exceptions unrelated to the 
requirements for redesignation.
    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 23757, April 28, 
2011), 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 a 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 position 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 7: The Commenter contends that Ohio must restore an ambient 
air monitor to Lawrence County, in order to meet the monitoring network 
    Response 7: EPA disagrees with the Commenter that the monitoring 
network must restore a monitor in Lawrence County. Currently, Ohio 
operates a monitor in Lawrence County, the Ironton Department of 
Transportation (DOT) site monitor, and the monitoring network for the 
area has met and continues to meet monitoring network requirements. The 
Ironton DOT site address for the monitor in Lawrence County was moved 
to a location within 1.5 miles of the former site location (Lawrence 
County Hospital). The Lawrence County Hospital site was demolished on 
February 12, 2008, and a new site in the Lawrence County, Ohio portion 
of the Huntington-Ashland area, known as the Ironton DOT site, began 
operation on the same day. To date the Ironton DOT site has collected a 
complete design value for the monitoring period 2009-2011, which shows 
that the area continues to attain the 1997 annual standard. A full 
discussion of this aspect of the monitoring history is contained in the 
proposed determination of attainment for the Huntington-Ashland area 
(76 FR 27290, May 11, 2011).
    Comment 8: The Commenter asserts that the 2005 emissions inventory 
that EPA is proposing to approve as meeting the emission inventory 
requirement of section 172(c)(3) of the CAA is inadequate and EPA 
cannot approve this emissions inventory. The Commenter notes that the 
emissions inventory is 6 years old. In addition, the commenter contends 
that portions of the emissions inventory were estimated, as opposed to 
being actual emissions, and claims that EPA has included in the docket 
only a summary of the emissions inventory. The Commenter asserts that 
EPA must place in the docket a comprehensive emissions inventory, 
including information for each point

[[Page 76895]]

source, so as to allow the public to review the inventory and comment 
on it.
    Response 8: Ohio developed a 2005 comprehensive inventory to meet 
the requirement of section 172(c)(3) of the CAA in accordance with 
EPA's November 18, 2002, policy memorandum from Lydia N. Wegman 
entitled ``2002 Base Year Emission Inventory SIP Planning: 8-hr Ozone, 
PM2.5 and Regional Haze Programs,''.
    The Commenter observes that portions of the emissions inventory 
were estimated. This method is entirely consistent with accepted EPA 
procedures for emissions inventory development procedures. It is common 
practice, and consistent with EPA emissions inventory guidance, for 
states to estimate emissions for any given year using related activity 
factors or to project emissions based on information from prior years 
and associated activity growth factors. See ``Emissions Inventory 
Guidance for Implementation of Ozone and Particulate Matter National 
Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations,'' 
dated August 2005. For mobile sources, it is standard and accepted 
practice for states to estimate emissions using an EPA- approved 
emissions model coupled with the output of a transportation model, 
which provides traffic levels by roadway and activity type. The 
Commenter provided no information or specific details that show that 
the 2005 inventory was inaccurate.
    While we believe the 2005 inventory submitted by the state meets 
the inventory requirements section 172(c)(3) of the CAA, EPA notes that 
Ohio also submitted a comprehensive 2008 emissions inventory to serve 
as the attainment year inventory as part of the maintenance plan. EPA's 
longstanding view, as set forth in the September 4, 1992, Calcagni 
memorandum is that the ``requirements for an emission inventory [under 
section 172(c)] will be satisfied by the inventory requirements of the 
maintenance plan.'' See Calcagni memorandum at 6.
    When preparing the comprehensive 2008 emissions inventory, Ohio 
compiled point source information from the 2008 annual emissions 
reports submitted to Ohio EPA by sources and EPA's Clean Air Markets 
Division database for electric utilities. Area source emissions were 
calculated using the most recently available methodologies and 
emissions factors from EPA along with activity data (population, 
employment, fuel use, etc.) specific to 2008. Nonroad mobile source 
emissions were calculated using EPA's NONROAD emissions model. In 
addition, emissions estimates were calculated for commercial marine 
vessels, aircraft, and railroads, three non-road categories not 
included in the NONROAD model. On-road mobile source emissions were 
calculated using EPA's MOVES emissions model with 2008 Vehicle Miles 
Traveled data provided by the Tri-state planning agency KYOVA.
    Therefore, the state has satisfied the CAA inventory requirements 
by its submittal of two inventories that meet the applicable emissions 
inventory requirement.
    The docket associated with the proposal contained Ohio's submittal 
including appendix B, which contains the state's method and analysis of 
sources for the 2005 inventory year. The Clean Air Fine Particle 
Implementation Rule (72 FR 20586) states that the 3-year emissions 
inventory that fulfills the SIP requirement under 172(c)(3) must 
provide documentation on the development of the SIP inventory (appendix 
B of the proposal docket). The rule also states that all source types 
must be reported, but does not specify the resolution of the data 
reporting as a source by source report. Ohio has interpreted the source 
type reporting requirement as reported by county, which they have 
provided in their submittal. EPA also believes that its summary 
provided in the notice of proposed rulemaking, along with appendix B 
description of development, provides an adequate basis for the public 
to identify pertinent issues and evaluate EPA's analysis and 
conclusions regarding satisfaction of section 172(c)(3). Much of the 
information in Ohio's inventory also was used in EPA's National 
Emissions Inventory, which can be examined in considerable detail at 
http://www.epa.gov/ttn/chief/net/2008inventory.html. EPA acknowledges 
that an in-depth inventory was unintentionally omitted from the 
electronic docket at www.regulations.gov. However, the document was 
available to the public in hard copy at the EPA Region 5 office, and 
had the Commenter contacted the Region, the inventory could have been 
provided. The facility-specific inventory has since been added to the 
electronic docket.

IV. Why is EPA taking these actions?

    EPA has determined that the Huntington-Ashland area has continued 
to attain the 1997 annual PM2.5 NAAQS. EPA has also 
determined that all other criteria have been met for the redesignation 
of the Ohio portion of the Huntington-Ashland area from nonattainment 
to attainment of the 1997 annual PM2.5 NAAQS and for 
approval of Ohio's maintenance plan for the area. See CAA sections 
107(d)(3)(E) and 175A. The detailed rationale for EPA's findings and 
actions is set forth in the proposed rulemaking of December 22, 2011 
(76 FR 79593) and in this final rulemaking.

V. Final Action

    EPA has previously made the determination that the Huntington-
Ashland area has attained the 1997 annual PM2.5 standard (76 
FR 55541). EPA is determining that the area continues to attain the 
standard and that the Ohio portion of the area meets the requirements 
for redesignation to attainment of that standard under sections 
107(d)(3)(E) and 175A of the CAA. Thus, EPA is granting the request 
from Ohio to change the legal designation of its portion of the 
Huntington-Ashland area from nonattainment to attainment for the 1997 
annual PM2.5 NAAQS. EPA is also approving Ohio's 1997 annual 
PM2.5 maintenance plan for the Huntington-Ashland area as a 
revision to the SIP because the plan meets the requirements of section 
175A of the CAA. EPA is approving the 2005 and 2008 emissions 
inventories for primary PM2.5, NOX, and 
SO2, documented in Ohio's May 4, 2011, submittals as 
satisfying the requirement in section 172(c)(3) of the CAA for a 
comprehensive, current emission inventory. Finally, for transportation 
conformity purposes, EPA is approving Ohio's determination that on-road 
emissions of PM2.5 and NOX are insignificant 
contributors to PM2.5 concentrations in the area.
    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

[[Page 76896]]

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 of various requirements for the Ohio portion of the 
Huntington-Ashland 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.

VI. 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 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. 
    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 March 1, 2013. 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 18, 2012.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR parts 52 and 81 are amended as follows:


1. The authority citation for part 52 continues to read as follows:

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

2. Section 52.1880 is amended by adding paragraphs (p)(2) and (q)(2) to 
read as follows:

Sec.  52.1880  Control strategy: Particulate matter.

* * * * *
    (p) * * *
    (2) The Ohio portion of the Huntington-Ashland nonattainment area 
(Lawrence and Scioto Counties and portions of Adams and Gallia 
Counties). The maintenance plan establishes a determination of 
insignificance for both NOX and primary PM2.5 for 
conformity purposes.
    (q) * * *
    (2) Ohio's 2005 and 2008 NOX, directly emitted 
PM2.5, and SO2 emissions inventory satisfies the 
emission inventory requirements of section 172(c)(3) for the 
Huntington-Ashland area.
* * * * *


3. The authority citation for part 81 continues to read as follows:

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

4. Section 81.336 is amended by removing the entry for Huntington-
Ashland, WV-KY-OH and adding in its place an entry for Huntington-
Ashland, OH in the table entitled ``Ohio PM2.5 (Annual 
NAAQS)'' to read as follows:

Sec.  81.336  Ohio.

* * * * *

[[Page 76897]]

                        Ohio PM2.5 (Annual NAAQS)
                                                  Designation \a\
             Designated area             -------------------------------
                                             Date \1\          Type
                              * * * * * * *
Huntington-Ashland, OH..................
    Adams County (part).................
        Monroe Township.................
        Sprigg Township.................
    Gallia County (part)................
        Addison Township................
        Cheshire Township...............
    Lawrence County.....................
    Scioto County.......................        12/31/12     Attainment.
                              * * * * * * *
\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. 2012-31276 Filed 12-28-12; 8:45 am]