[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Proposed Rules]
[Pages 86664-86673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28821]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R04-OAR-2016-0361; FRL-9955-80-Region 4]
Air Plan Approval and Designation of Areas; KY; Redesignation of
the Campbell County, 2010 1-Hour Sulfur Dioxide Nonattainment Area to
Attainment
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve two separate but related submissions (one of which includes
multiple components) provided by the Commonwealth of Kentucky, through
the Kentucky Division of Air Quality (KDAQ), in relation to attainment
of the 2010 Sulfur Dioxide (SO2) national ambient air
quality standards (NAAQS) for the Kentucky portion of the Campbell-
Clermont, Kentucky-Ohio 2010 1-hour SO2 nonattainment area
(hereafter referred to as the ``Campbell-Clermont, KY-OH Area'' or
``Area''). On March 31, 2015, KDAQ submitted a request for EPA to
determine that the Campbell-Clermont, KY-OH Area attained the 2010 1-
hour SO2 NAAQS per EPA's ``Clean Data Policy.''
Subsequently, on February 22, 2016, KDAQ submitted a request for EPA to
redesignate the Campbell County portion of Kentucky that is within the
Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour
SO2 NAAQS, and to approve a State Implementation Plan (SIP)
revision containing a maintenance plan, base year inventory, and
reasonably available control measures (RACM) determination for the
Kentucky portion of the Area. EPA is proposing to approve the
Commonwealth's RACM determination and incorporate it into the SIP; to
approve the base year emissions inventory for the Kentucky portion of
the Area and incorporate it into the SIP; to approve the Commonwealth's
request for a clean data determination; to approve the Commonwealth's
plan for maintaining attainment of the 2010 1-hour SO2 NAAQS
and incorporate it into the SIP; and to redesignate the Kentucky
portion of the Area to attainment for the 2010 1-hour SO2
NAAQS.
DATES: Comments must be received on or before January 3, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2016-0361 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Steven Scofield of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Scofield may be reached by phone at (404) 562-9034 or
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What are the actions EPA is proposing to take?
II. What is the background for EPA's proposed actions?
III. What are the criteria for redesignation?
IV. Why is EPA proposing these actions?
V. What is EPA's analysis of the redesignation request and SIP
revisions?
VI. What is the effect of EPA's proposed actions?
VII. Proposed Actions
VIII. Statutory and Executive Order Reviews
I. What are the actions EPA is proposing to take?
EPA is proposing to take the following five separate but related
actions regarding Kentucky's aforementioned requests and SIP
submission: (1) To approve Kentucky's RACM determination for the
Kentucky portion of the Campbell-Clermont, KY-OH Area pursuant to Clean
Air Act (CAA or Act) section 172(c)(1) and incorporate it into the SIP;
(2) to approve the base year emissions inventory for the 2010 1-hour
SO2 NAAQS for the Kentucky portion of the Area pursuant to
CAA section 172(c)(3) and incorporate it into the SIP; (3) to approve
the Commonwealth's March 31, 2015, request for EPA to determine that
the Area attained the 2010 1-hour SO2 NAAQS per EPA's
``Clean Data Policy;'' (4) to approve Kentucky's plan for maintaining
the 2010 1-hour SO2 NAAQS (maintenance plan) in the Area and
incorporate it into the SIP; and (5) to redesignate the Kentucky
portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010
1-hour SO2 NAAQS. The Campbell-Clermont, KY-OH Area consists
of a portion of Campbell County in Kentucky and a portion of Clermont
County in Ohio.\1\ These proposed actions are summarized below
[[Page 86665]]
and described in greater detail throughout this notice of proposed
rulemaking.
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\1\ The Kentucky portion of the Area emits less than nine tons
of total SO2 emissions per year, but it contains the
SO2 monitor that violated the SO2 standard in
2011. The Ohio portion of the Area contains the Walter C. Beckjord
power plant (Beckjord Facility) which shut down in 2014.
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Based on the 1-hour SO2 nonattainment designation for
the Area, Kentucky was required to develop a nonattainment SIP revision
addressing certain CAA requirements. Among other things, the
Commonwealth was required to submit a SIP revision addressing RACM and
base year inventory requirements pursuant to CAA section 172(c)(1) and
section 172(c)(3), respectively, for its portion of the Area. Although
EPA does not believe that section 172(c)(1) RACM must be approved into
a SIP prior to redesignation of an area to attainment once that area is
attaining the NAAQS, EPA is proposing to approve Kentucky's RACM
determination into its SIP pursuant to a recent decision by the United
States Court of Appeals for the Sixth Circuit (Sixth Circuit), as
discussed in Section V.A, below. EPA is also proposing to approve
Kentucky's 2011 base year inventory as satisfying section 172(c)(3)
requirements.
On November 21, 2016, EPA published its final approval of the
redesignation request and maintenance plan for the Ohio portion of the
Area. See 81 FR 83158. As part of that final action, EPA determined
that the entire Area has attained the 2010 1-hour SO2 NAAQS.
Based on EPA's final determination of attainment, EPA is proposing to
approve Kentucky's March 31, 2015, request for EPA to determine that
the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour
SO2 NAAQS per EPA's ``Clean Data Policy.'' Under the Clean
Data Policy, a determination that an area is attaining the NAAQS
suspends the obligations to submit an attainment demonstration and
associated RACM, RFP plans, contingency measures, and certain other
planning-related requirements until EPA redesignates the Area to
attainment (at which time the requirements no longer apply) or EPA
determines that the Area violates the standard.\2\
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\2\ Following enactment of the CAA Amendments of 1990, EPA
promulgated its interpretation of the requirements for implementing
the NAAQS in the general preamble for the Implementation of Title I
of the CAA Amendments of 1990 (General Preamble) 57 FR 13498, 13564
(April 16, 1992). In 1995, based on the interpretation of CAA
sections 171 and 172, and section 182 in the General Preamble, EPA
set forth what has become known as its ``Clean Data Policy'' for the
1-hour ozone NAAQS. See Memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, ``RFP, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment
Areas Meeting the Ozone National Ambient Air Quality Standard'' (May
10, 1995). Since 1995, EPA has applied its interpretation under the
Clean Data Policy in many rulemakings, suspending certain
attainment-related planning requirements for individual areas, based
on a determination of attainment and that interpretation has been
upheld by federal courts.
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EPA is also proposing to approve Kentucky's maintenance plan for
its portion of the Campbell-Clermont, KY-OH Area as meeting the
requirements of section 175A (such approval being one of the CAA
criteria for redesignation to attainment status) and incorporate it
into the SIP. The maintenance plan is designed to keep the Area in
attainment of the 2010 1-hour SO2 NAAQS through 2027.
EPA also proposes to determine that the Kentucky portion of the
Campbell-Clermont, KY-OH Area has met the requirements for
redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in
this action, EPA is proposing to approve a request to change the legal
designation of the portion of Campbell County, Kentucky, within the
Campbell-Clermont, KY-OH Area, as found at 40 CFR part 81, from
nonattainment to attainment for the 2010 1-hour SO2 NAAQS.
In summary, this proposed rulemaking is in response to Kentucky's
March 31, 2015, submittal requesting a clean data determination and to
Kentucky's February 22, 2016, redesignation request and associated SIP
submission that address the necessary elements described in section
107(d)(3)(E) of the CAA for redesignation of the Kentucky portion of
the Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour
SO2 NAAQS.
II. What is the background for EPA's proposed actions?
On June 2, 2010, EPA revised the primary SO2 NAAQS,
establishing a new 1-hour SO2 standard of 75 parts per
billion (ppb). See 75 FR 35520 (June 22, 2010). Under EPA's regulations
at 40 CFR part 50, the 2010 1-hour SO2 NAAQS is met at a
monitoring site when the 3-year average of the annual 99th percentile
of 1-hour daily maximum concentrations is less than or equal to 75 ppb
(based on the rounding convention in 40 CFR part 50, appendix T). See
40 CFR 50.17. Ambient air quality monitoring data for the 3-year period
must meet a data completeness requirement. A year meets data
completeness requirements when all four quarters are complete, and a
quarter is complete when at least 75 percent of the sampling days for
each quarter have complete data. A sampling day has complete data if 75
percent of the hourly concentration values, including state-flagged
data affected by exceptional events which have been approved for
exclusion by the Administrator, are reported.\3\
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\3\ 40 CFR part 50, appendix T, section 3(b).
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Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that does not meet (or that
contributes to ambient air quality in a nearby area that does not meet)
the NAAQS. At the time EPA conducted the initial round of designations
for the 2010 1-hour SO2 primary NAAQS, Campbell County
contained an SO2 monitor which registered violations of the
standard based on the three most recent years of complete, quality
assured, and certified ambient air quality data. Using 2009-2011
ambient air quality data, EPA designated the Area as nonattainment for
the 2010 1-hour SO2 NAAQS on August 5, 2013 (78 FR 47191),
which became effective on October 4, 2013. This nonattainment
designation established an attainment date five years after the October
4, 2013, effective date for areas designated as nonattainment for the
2010 1-hour SO2 NAAQS. Therefore, the Campbell-Clermont, KY-
OH Area's attainment date is October 4, 2018. KDAQ was also required to
submit a SIP to EPA that meets the requirements of CAA sections 172(c)
and 191-192 within 18 months following the October 4, 2013, effective
date of designation (i.e., April 4, 2015).
As mentioned above, on March 31, 2015, KDAQ submitted a request for
EPA to determine that the Campbell-Clermont, KY-OH Area has attained
the 2010 1-hour SO2 NAAQS per EPA's ``Clean Data Policy.''
Subsequently, on February 22, 2016, KDAQ submitted to EPA a request for
redesignation of the Campbell-Clermont, KY-OH Area to attainment and a
SIP revision containing a maintenance plan for the Kentucky portion of
the Area.
III. What are the criteria for redesignation?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation provided that the following criteria are met:
(1) The Administrator determines that the area has attained the
applicable NAAQS; (2) the Administrator has fully approved the
applicable implementation plan for the area under section 110(k); (3)
the Administrator determines that the improvement in air quality is due
to permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable federal air
pollutant
[[Page 86666]]
control regulations, and other permanent and enforceable reductions;
(4) the Administrator has fully approved a maintenance plan for the
area as meeting the requirements of section 175A; and (5) the state
containing such area has met all requirements applicable to the area
for purposes of redesignation under section 110 and part D of the CAA.
On April 16, 1992 (57 FR 13498), EPA provided guidance on
redesignation in the General Preamble for the Implementation of title I
of the CAA Amendments of 1990 and supplemented this guidance on April
28, 1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in several guidance documents. For the purposes
of this proposed action, EPA will be referencing three of these
documents: (1) The September 4, 1992, memorandum from John Calcagni
titled ``Procedures for Processing Requests to Redesignate Areas to
Attainment'' (hereinafter referred to as the ``Calcagni Memo''); (2)
the October 14, 1994, memorandum from Mary D. Nichols titled ``Part D
New Source Review (Part D NSR) Requirements for Areas Requesting
Redesignation to Attainment'' (hereinafter referred to as the ``Nichols
Memo''); and (3) the April 23, 2014 memorandum from Stephen D. Page
titled ``Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions'' (hereinafter referred to as ``2010 SO2
Nonattainment Area Guidance'').
IV. Why is EPA proposing these actions?
On March 31, 2015, KDAQ submitted a request for EPA to determine
that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour
SO2 NAAQS per EPA's ``Clean Data Policy.'' Subsequently, on
February 22, 2016, KDAQ requested that EPA redesignate the Kentucky
portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010
1-hour SO2 NAAQS. On November 21, 2016, EPA determined that
the entire Area has attained the 2010 1-hour SO2 NAAQS as
part of its final action redesignating the Ohio portion of the Area.
EPA's evaluation indicates that the Kentucky portion of the Campbell-
Clermont, KY-OH Area meets the requirements for redesignation as set
forth in section 107(d)(3)(E), including the maintenance plan
requirements under section 175A of the CAA. As a result, EPA is
proposing to take the five related actions summarized in section I of
this notice.
V. What is EPA's analysis of the redesignation request and SIP
revisions?
As stated above, in accordance with the CAA, EPA proposes to: (1)
Approve Kentucky's Subpart 1 RACM determination for the Kentucky
portion of the Campbell-Clermont, KY-OH Area and incorporate it into
the SIP; (2) approve the base year emissions inventory for the 2010
SO2 NAAQS for the Kentucky portion of the Area and
incorporate it into the SIP; (3) approve Kentucky's March 31, 2015,
request for a clean data determination; (4) approve the 2010 1-hour
SO2 NAAQS maintenance plan for the Kentucky portion of the
Area and incorporate it into the SIP; and (5) redesignate the Kentucky
portion of the Area to attainment for the 2010 1-hour SO2
NAAQS.
A. RACM Determination
1. Relationship Between Subpart 1 RACM and the Redesignation Criteria
EPA does not believe that Subpart 1 nonattainment planning
requirements designed to provide for attainment, including RACM, are
``applicable'' for purposes of CAA section 107(d)(3)(E)(ii) once an
area is attaining the NAAQS and, therefore, does not believe that these
planning requirements must be approved into the SIP before EPA can
redesignate an area to attainment. See, e.g., 57 FR 13498, 13564 (April
16, 1992); Calcagni Memo. However, the Sixth Circuit issued an opinion
in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015), that is
inconsistent with this longstanding interpretation regarding section
107(d)(3)(E)(ii). In its decision, the Court vacated EPA's
redesignation of the Indiana and Ohio portions of the Cincinnati-
Hamilton nonattainment area to attainment for the 1997 Fine Particulate
Matter (PM2.5) NAAQS because EPA had not yet approved
Subpart 1 RACM for the Cincinnati Area into the Indiana and Ohio SIPs.
The Court concluded that ``a State seeking redesignation `shall provide
for the implementation' of RACM/RACT [reasonably available control
technology], even if those measures are not strictly necessary to
demonstrate attainment with the PM2.5 NAAQS. If the State
has not done so, EPA cannot `fully approve' the area's SIP, and
redesignation to attainment status is improper.'' Sierra Club, 793 F.3d
at 670.
EPA is bound by the Sixth Circuit's decision in Sierra Club v. EPA
within the Court's jurisdiction.\4\ Although EPA continues to believe
that Subpart 1 RACM is not an applicable requirement under section
107(d)(3)(E) for an area that has already attained the 2010 1-hour
SO2 NAAQS, EPA is proposing to approve Kentucky's RACM
determination into the SIP pursuant to the Court's decision.\5\
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\4\ The states of Kentucky, Michigan, Ohio, and Tennessee are
located within the Sixth Circuit's jurisdiction.
\5\ The EPA Region 4 Regional Administrator signed a memorandum
on July 20, 2015, seeking concurrence from the Director of EPA's Air
Quality Policy Division (AQPD) in the Office of Air Quality Planning
and Standards to act inconsistent with EPA's interpretation of CAA
sections 107(d)(3)(E) and 172(c)(1) when taking action on pending
and future redesignation requests in Kentucky and Tennessee because
the Region is bound by the Sixth Circuit's decision in Sierra Club
v. EPA. The AQPD Director issued her concurrence on July 22, 2015.
This memorandum is not required to satisfy EPA's regional
consistency regulations. See 40 CFR 56.5(b)(1); 81 FR 51102 (August
3, 2016).
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2. Subpart 1 RACM Requirements
Subpart 1 requires that each attainment plan ``provide for the
implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from the existing sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control technology),
and shall provide for attainment of the national primary ambient air
quality standards.'' See CAA section 172(c)(1). EPA has consistently
interpreted this provision to require only implementation of potential
RACM measures that could advance attainment.\6\ Thus, when an area is
already attaining the standard, no additional RACM measures are
required. EPA's interpretation that Subpart 1 requires only the
implementation of RACM measures that would advance attainment was
upheld by the United States Court of Appeals for the Fifth Circuit \7\
and by the United States Court of Appeals for the D.C. Circuit.\8\
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\6\ This interpretation was adopted in the General Preamble, see
57 FR 13498 (April 16, 1992), and has been upheld as applied to the
Clean Data Policy, as well as to nonattainment SIP submissions. See
NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294
F.3d 155 (D.C. Cir. 2002).
\7\ Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002).
\8\ Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002);
NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009).
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3. Proposed Action on RACM Based on Attainment of the NAAQS
In its February 22, 2016, SIP revision, Kentucky determined that no
additional control measures are necessary in the Area to satisfy the
section 172(c)(1)
[[Page 86667]]
RACM requirement. EPA is proposing to approve this determination on the
basis that the Area has attained the 2010 1-hour SO2 NAAQS
and, therefore, no emission reduction measures are necessary to satisfy
Subpart 1 RACM. As noted above, EPA has determined that the Area has
attained the 2010 1-hour SO2 NAAQS and is proposing to
determine that the Area continues to attain the standard. See 81 FR
47144. Because the Area is attaining the standard, there are no
emissions controls that could advance the attainment date; thus, no
emissions controls are necessary to satisfy Subpart 1 RACM.
4. Proposed Action on RACM Based on the Commonwealth's Analysis
Additionally, Kentucky's Subpart 1 RACM determination is approvable
on the basis that the SIP revision demonstrates that no additional
reasonably available controls would have advanced the attainment date.
In Kentucky's RACM analysis, the Commonwealth notes that the only large
point source of SO2 emissions in the Area--the Walter C.
Beckjord power plant--was permanently shut down and removed from
service in 2014. The Beckjord Facility has been demonstrated to be the
primary SO2 source that caused the monitored exceedances,
and since the closure of the Beckjord Facility, there has been a
significant monitored improvement in SO2 air quality (see
Table 2 in section V.C, below). The closure results in a reduction of
90,835 tons per year (tpy) based on the Facility's 2011 emissions
(representing emissions from the time period for which the design value
for the Area was above the NAAQS) and a reduction of 32,602 tpy based
on the Facility's 2014 emissions (representing emissions from a time
period for which the design value was below the NAAQS) (see Tables 3-5
in section V.C, below). Because the only large point source of
SO2 emissions in the Area is permanently shut down and
because total point source SO2 emissions in the Kentucky
portion of the Area were only approximately 0.8 tons per year in 2011,
the Commonwealth concludes that there are no potential emission
reduction measures that would advance attainment by one year or more.
EPA has reviewed the RACM portion of Kentucky's February 22, 2016, SIP
revision and preliminarily agrees with the Commonwealth's determination
that it was not necessary to adopt or implement additional
SO2 control measures in the Area to satisfy section
172(c)(1).
B. Emission Inventory
Section 172(c)(3) of the CAA requires states to submit a
comprehensive, accurate, and current inventory of actual emissions from
all sources of the relevant pollutant or pollutants in each
nonattainment area. This inventory can be submitted for a year that
contributed to the three-year design value used for the original
nonattainment designation and should be consistent with the emissions
inventory data requirements in 40 CFR part 51, subpart A.
Kentucky submitted a base year emissions inventory for 2011 to
satisfy section 172(c)(3). This base year is one of the three years of
ambient data used to designate the Area as a nonattainment area and
therefore represents emissions associated with nonattainment
conditions. The emissions inventory is based on data developed and
submitted by Kentucky to EPA's 2011 National Emissions Inventory (NEI),
and it contains data elements consistent with the detail required by 40
CFR part 51, subpart A. Kentucky's base year emissions inventory for
its portion of the Area provides 2011 emissions data for SO2
for the following general source categories: electric generating unit
(EGU) point, non-EGU point, area, non-road mobile, and on-road mobile.
All base year emissions data are taken from the NEI with the exception
of point source emissions which were obtained from Kentucky's Emission
Inventory database and mobile emissions which were generated by the
Ohio-Kentucky-Indiana Regional Council of Governments (OKI).
Projections were developed for each sector as follows:
Area source emissions were compiled from the 2011 NEI and
projections were developed by Kentucky. Kentucky developed its
inventory according to the current EPA emissions inventory guidance for
area sources.
Mobile source emissions were calculated from MOVES2014b-
produced emission factors. As performed by OKI, mobile source emission
projections are based on the EPA MOVES model. The analysis is described
in more detail in Appendix E of Kentucky's February 22, 2016, SIP
submission. Kentucky developed its inventory according to the current
EPA emissions inventory guidance for on-road mobile sources using MOVES
version 2014.
Non-EGU point source information was compiled from
Kentucky's 2011 Emissions Inventory Database, while Ohio's EGU point
source information was compiled from the 2011 data in the CAMD
database. Projections were developed by Kentucky as described in
Appendix C of Kentucky's February 22, 2016, SIP submission.
Non-road emissions were compiled from the 2011 NEI and
projections were developed by Kentucky.
Biogenic emissions are negligible and are not included in
these summaries.
A detailed discussion of the inventory development is located in
Appendices C and E to Kentucky's February 22, 2016, SIP submittal which
is provided in the docket for this proposed action. Table 1, below,
provides a summary of the base year emissions inventory.
Table 1--2011 Emissions Inventory for the Kentucky Portion of the Campbell-Clermont, KY-OH Area (tpy)
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County EGU point Non-EGU point Non-road mobile Area On-road mobile Total
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Campbell County................................... 0 0.78 0.20 6.03 1.55 8.56
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For the reasons discussed above, EPA has preliminarily determined
that Kentucky's 2011 base year emissions inventory meets the
requirements under CAA section 172(c)(3). Approval of Kentucky's
redesignation request is contingent upon EPA's final approval of the
base year emissions inventory for the 2010 1-hour SO2 NAAQS.
C. Redesignation Request and Maintenance Demonstration
The five redesignation criteria provided under CAA section
107(d)(3)(E) are discussed in greater detail for the Area in the
following paragraphs.
Criteria (1)--The Campbell-Clermont, KY-OH Area Has Attained the 2010
1-Hour SO2 NAAQS
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the area has attained the applicable
NAAQS (CAA section 107(d)(3)(E)(i)). The two primary methods for
evaluating ambient air
[[Page 86668]]
quality impacted by SO2 emissions are through dispersion
modeling and air quality monitoring. For SO2, an area may in
some circumstances be considered to be attaining the 2010 1-hour
SO2 NAAQS if it meets the NAAQS as determined in accordance
with 40 CFR 50.17 and Appendix T of part 50, based on three complete,
consecutive calendar years of quality-assured air quality monitoring
data. To attain the NAAQS based on monitoring, the 3-year average of
the annual 99th percentile (fourth highest value) of 1-hour daily
maximum concentrations measured at each monitor within an area must be
less than or equal to 75 parts per billion (ppb). The data must be
collected and quality-assured in accordance with 40 CFR part 58 and
recorded in the EPA Air Quality System (AQS).
As discussed in EPA's 2010 SO2 Nonattainment Area
Guidance, two components are needed to support an attainment
determination: (1) A review of representative air quality monitoring
data, and (2) a further analysis, generally requiring air quality
modeling, to demonstrate that the entire area is attaining the
standard, based on current actual emissions or the fully implemented
control strategy. In EPA's action redesignating the Ohio portion of the
Area, EPA determined that the Area has attained the 1-hour
SO2 NAAQS based on these two components. For EPA's full
analysis underlying its final attainment determination, see 81 FR
47144, 47145-47 (July 20, 2016). As part of that analysis, EPA reviewed
2012-2015 SO2 monitoring data from the monitoring station in
the Campbell-Clermont, KY-OH Area for the 2010 1-hour SO2
NAAQS and preliminary data for 2016. The 2012-2015 data have been
quality-assured, are recorded in Aerometric Information Retrieval
System (AIRS-AQS), and the 3-year design values for 2012-2014 and 2013-
2015 are below the NAAQS. The fourth-highest 1-hour SO2
values at each monitor for 2012-2015, and the 3-year averages of these
values (i.e., design values), are summarized in Table 2, below.
Table 2--Design Value Concentrations for the Campbell-Clermont, KY-OH Area
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4th Highest 1-hour sulfur dioxide value (ppb) 3-Year design values (ppb)
Location Site -----------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2012-2014 2013-2015
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Campbell County, KY.............. 21-037-3002 85 71 61 18 72 50
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Preliminary monitoring data for the Area for 2016 does not indicate
a violation of the NAAQS.\9\ EPA will not take final action to approve
the redesignation if the 3-year design value exceeds the NAAQS prior to
EPA finalizing the redesignation. As discussed in more detail below,
the Commonwealth has committed to continue monitoring in this Area in
accordance with 40 CFR part 58.
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\9\ This preliminary data is available at EPA's air data Web
site: http://aqsdr1.epa.gov/aqsweb/aqstmp/airdata/download_files.html#Daily.
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Criteria (2)--Kentucky Has a Fully Approved SIP Under Section 110(k)
for the Kentucky Portion of the Campbell-Clermont, KY-OH Area; and
Criteria (5)--Kentucky Has Met All Applicable Requirements Under
Section 110 and Part D of Title I of the CAA
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the state has met all applicable
requirements under section 110 and part D of title I of the CAA (CAA
section 107(d)(3)(E)(v)) and that the state has a fully approved SIP
under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA
proposes to find that Kentucky has met all applicable SIP requirements
for the Kentucky portion of the Area under section 110 of the CAA
(general SIP requirements) for purposes of redesignation. Additionally,
EPA proposes to find that the Kentucky SIP satisfies the criterion that
it meets applicable SIP requirements for purposes of redesignation
under part D of title I of the CAA in accordance with section
107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is
fully approved with respect to all requirements applicable for purposes
of redesignation in accordance with section 107(d)(3)(E)(ii). In making
these determinations, EPA ascertained which requirements are applicable
to the Area and, if applicable, that they are fully approved under
section 110(k). SIPs must be fully approved only with respect to
requirements that were applicable prior to submittal of the complete
redesignation request.
a. The Kentucky Portion of the Campbell-Clermont, KY-OH Area Has Met
All Applicable Requirements Under Section 110 and Part D of the CAA
General SIP requirements. General SIP elements and requirements are
delineated in section 110(a)(2) of title I, part A of the CAA. These
requirements include, but are not limited to, the following: Submittal
of a SIP that has been adopted by the state after reasonable public
notice and hearing; provisions for establishment and operation of
appropriate procedures needed to monitor ambient air quality;
implementation of a source permit program; provisions for the
implementation of part C requirements (Prevention of Significant
Deterioration (PSD)) and provisions for the implementation of part D
requirements (NSR permit programs); provisions for air pollution
modeling; and provisions for public and local agency participation in
planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address the interstate
transport of air pollutants. The section 110(a)(2)(D) requirements for
a state are not linked with a particular nonattainment area's
designation and classification in that state. EPA believes that the
requirements linked with a particular nonattainment area's designation
and classifications are the relevant measures to evaluate in reviewing
a redesignation request. The transport SIP submittal requirements,
where applicable, continue to apply to a state regardless of the
designation of any one particular area in the state. Thus, EPA does not
believe that the CAA's interstate transport requirements should be
construed to be applicable requirements for purposes of redesignation.
In addition, EPA believes that other section 110(a)(2) elements
that are neither connected with nonattainment plan submissions nor
linked with an area's attainment status are not applicable requirements
for purposes of redesignation. The area will still be subject to these
requirements after the
[[Page 86669]]
area is redesignated. The section 110(a)(2) and part D requirements
which are linked with a particular area's designation and
classification are the relevant measures to evaluate in reviewing a
redesignation request. This approach is consistent with EPA's existing
policy on applicability (i.e., for redesignations) of conformity and
oxygenated fuels requirements, as well as with section 184 ozone
transport requirements. See Reading, Pennsylvania, proposed and final
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7,
2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458,
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748,
December 7, 1995). See also the discussion on this issue in the
Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in
the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19,
2001).
EPA has reviewed Kentucky's SIP and has concluded that it meets the
general SIP requirements under section 110(a)(2) of the CAA to the
extent they are applicable for purposes of redesignation. These
requirements are statewide requirements that are not linked to the
SO2 nonattainment status of the Area. Therefore, EPA
believes that these SIP elements are not applicable requirements for
purposes of review of Kentucky's SO2 redesignation request.
Title I, Part D, applicable SIP requirements. Subpart 1 of part D,
comprised of CAA sections 171-179B, sets forth the basic nonattainment
requirements applicable to all nonattainment areas, and subpart 5 of
part D, which includes section 191 and 192 of the CAA, establishes
additional plan deadline and attainment date requirements for
SO2, nitrogen dioxide, and lead nonattainment areas. A
thorough discussion of the requirements contained in sections 172(c)
can be found in the General Preamble for Implementation of Title I (57
FR 13498).
Subpart 1 Section 172 Requirements. Under section 172, states with
nonattainment areas must submit plans providing for timely attainment
and meeting a variety of other requirements. As discussed in section
V.A, above, EPA's longstanding interpretation of the attainment-related
nonattainment planning requirements of section 172 is that once an area
is attaining the NAAQS, those requirements are not ``applicable'' for
purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be
approved into the SIP before EPA can redesignate the area. In the 1992
General Preamble for Implementation of Title I, EPA set forth its
interpretation of applicable requirements for purposes of evaluating
redesignation requests when an area is attaining a standard. See 57 FR
13498, 13564 (April 16, 1992). EPA noted that the requirements for RFP
and other measures designed to provide for attainment do not apply in
evaluating redesignation requests because those nonattainment planning
requirements ``have no meaning'' for an area that has already attained
the standard. Id. This interpretation was also set forth in the
Calcagni Memo. EPA's understanding of section 172 also forms the basis
of its Clean Data Policy, articulated with regard to the 2010 1-hour
SO2 NAAQS in the 2010 SO2 NAA Guidance, which
suspends a state's obligation to submit most of the attainment planning
requirements that would otherwise apply, including an attainment
demonstration and planning SIPs to provide for RFP, RACM, and
contingency measures under section 172(c)(9). However, as discussed
above, EPA is proposing to approve Kentucky's RACM determination into
the SIP in response to the Sixth Circuit's decision that section
172(c)(1) RACM is an applicable requirement under 107(d)(3)(E)(ii) and
must be approved into the SIP before EPA can redesignate an area that
is subject to section 172(c)(1) requirements.
Because attainment has been reached in the Area, the section
172(c)(2) requirement that nonattainment plans contain provisions
promoting reasonable further progress toward attainment is not relevant
for purposes of redesignation. In addition, because the Area has
attained the standard and is no longer subject to a RFP requirement,
the requirement to submit the section 172(c)(9) contingency measures is
not applicable for purposes of redesignation. Section 172(c)(6)
requires the SIP to contain control measures necessary to provide for
attainment of the NAAQS. Because attainment has been reached, no
additional measures are needed to provide for attainment.
Section 172(c)(3) requires submission and approval of a
comprehensive, accurate, and current inventory of actual emissions. As
noted above, Kentucky submitted a 2011 base year emissions inventory
for the Kentucky portion of the Area, and EPA is proposing to approve
that inventory as satisfying the requirements of section 172(c)(3).
Kentucky's section 172(c)(3) inventory must be approved before EPA can
take final action to approve the Commonwealth's redesignation request
for the Kentucky portion of the Area.
Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources to be
allowed in an area, and section 172(c)(5) requires source permits for
the construction and operation of new and modified major stationary
sources anywhere in the nonattainment area. EPA has determined that,
since PSD requirements will apply after redesignation, areas being
redesignated need not comply with the requirement that a NSR program be
approved prior to redesignation, provided that the area demonstrates
maintenance of the NAAQS without part D NSR. A more detailed rationale
for this view is described in the Nichols Memo. Kentucky has
demonstrated that the Area will be able to maintain the NAAQS without
part D NSR in effect, and therefore Kentucky need not have fully
approved part D NSR programs prior to approval of the redesignation
request. Kentucky's PSD program will become effective in Campbell
County upon redesignation to attainment.
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, EPA believes the
Kentucky SIP meets the requirements of section 110(a)(2) applicable for
purposes of redesignation.
Section 176 Conformity Requirements. Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. The requirement to determine
conformity applies to transportation plans, programs, and projects that
are developed, funded, or approved under title 23 of the United States
Code (U.S.C.) and the Federal Transit Act (transportation conformity)
as well as to all other federally supported or funded projects (general
conformity). State transportation conformity SIP revisions must be
consistent with federal conformity regulations relating to
consultation, enforcement, and enforceability that EPA promulgated
pursuant to its authority under the CAA.
EPA believes that it is reasonable to interpret the conformity SIP
requirements \10\ as not applying for purposes of evaluating the
redesignation request under section 107(d) because
[[Page 86670]]
state conformity rules are still required after redesignation and
federal conformity rules apply where state rules have not been
approved. See Wall v. EPA, 265 F.3d 426 (upholding this interpretation)
(6th Cir. 2001); See 60 FR 62748 (December 7, 1995). Furthermore, due
to the relatively small, and decreasing, amounts of sulfur in gasoline
and on-road diesel fuel, the EPA's transportation conformity rules
provide that they do not apply to SO2 unless either the EPA
Regional Administrator or the director of the state air agency has
found that transportation-related emissions of SO2 as a
precursor are a significant contributor to a fine particulate matter
(PM2.5) nonattainment problem, or if the SIP has established
an approved or adequate budget for such emissions as part of the RFP,
attainment, or maintenance strategy. See 40 CFR 93.102(b)(1), (2)(v);
2010 SO2 Nonattainment Area Guidance. Neither of these
conditions have been met; therefore, the EPA's transportation
conformity rules do not apply to SO2 for the Area.
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\10\ CAA Section 176(c)(4)(E) requires states to submit
revisions to their SIPs to reflect certain federal criteria and
procedures for determining transportation conformity. Transportation
conformity SIPs are different from the motor vehicle emission
budgets that are established in control strategy SIPs and
maintenance plans.
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For these reasons, EPA proposes to find that Kentucky has satisfied
all applicable requirements for purposes of redesignation of the
Campbell-Clermont, KY-OH Area under section 110 and part D of title I
of the CAA.
b. The Kentucky Portion of the Campbell-Clermont, KY-OH Area Has a
Fully Approved Applicable SIP Under Section 110(k) of the CAA
EPA has fully approved the Commonwealth's SIP for the Kentucky
portion of the Campbell-Clermont, KY-OH Area under section 110(k) of
the CAA for all requirements applicable for purposes of this proposed
redesignation with the exception of the Subpart 1 RACM and emissions
inventory requirements. In today's proposed action, EPA is proposing to
approve the Commonwealth's Subpart 1 RACM determination and the Subpart
1 emissions inventory for the Kentucky portion of the Area into the
Kentucky SIP.
As indicated above, EPA believes that the section 110 elements that
are neither connected with nonattainment plan submissions nor linked to
an area's nonattainment status are not applicable requirements for
purposes of redesignation. If EPA finalizes approval of the
Commonwealth's Subpart 1 RACM determination and Subpart 1 emissions
inventory, EPA has approved all part D requirements applicable under
the 2010 1-hour SO2 NAAQS, as identified above, for purposes
of this proposed redesignation pursuant to the Sixth Circuit's
decision.
Criteria (3)--The Air Quality Improvement in the Campbell-Clermont, KY-
OH Area Is Due to Permanent and Enforceable Reductions in Emissions
Resulting From Implementation of the SIP and Applicable Federal Air
Pollution Control Regulations and Other Permanent and Enforceable
Reductions
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the air quality improvement in the area
is due to permanent and enforceable reductions in emissions resulting
from implementation of the SIP, applicable Federal air pollution
control regulations, and other permanent and enforceable reductions
(CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that
Kentucky has demonstrated that the observed air quality improvement in
the Area is due to permanent and enforceable reductions in emissions
primarily resulting from the permanent shutdown of the Beckjord
Facility.
When EPA designated the Campbell-Clermont, KY-OH Area as a
nonattainment area for the 2010 1-hour SO2 NAAQS, EPA
determined that operations at the Beckjord Facility were the primary
cause of the 2010 1-hour SO2 NAAQS violations in the Area.
See 78 FR 47191.\11\ As mentioned above, operations at the Beckjord
Facility ceased in 2014. Specifically, its six coal-fired EGUs were
permanently shut down and removed from service by October 1, 2014, and
its four oil-fired EGUs were permanently shut down and removed from
service by the end of 2014.\12\ These units are no longer authorized to
operate by the state of Ohio and cannot restart without new air
permits. The shutdown reduced SO2 emissions in the Area by
approximately 90,835 tpy (based on 2011 emissions) and resulted in a
significant improvement in SO2 air quality. There are no
other large point sources of SO2 emissions located in the
Campbell-Clermont, KY-OH Area.
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\11\ See Final Technical Support Document, July 2013, Kentucky
First Round of Nonattainment Area Designations for the 2010
SO2 Primary NAAQS, Prepared by EPA Region 4. Available in
Docket EPA-HQ-OAR-2012-0233.
\12\ The letters from Duke Energy notifying Ohio of the
shutdowns are located in the appendices to Kentucky's February 22,
2016 redesignation request and SIP submittal.
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Because the Beckjord Facility which was the primary SO2
emissions source that caused the monitored exceedances is permanently
shut down, and cannot reopen without applying for a new operating
permit, EPA proposes to find that the improvement in air quality in the
Campbell-Clermont, KY-OH Area is due to permanent and enforceable
reductions in SO2 emissions.
Criteria (4)--The Kentucky Portion of the Campbell-Clermont, KY-OH Area
Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the
CAA
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the area has a fully approved
maintenance plan pursuant to section 175A of the CAA. See CAA section
107(d)(3)(E)(iv). In conjunction with its request to redesignate the
Kentucky portion of the Campbell-Clermont, KY-OH Area to attainment for
the 2010 1-hour SO2 NAAQS, KDAQ submitted a SIP revision to
provide for the maintenance of the 2010 1-hour SO2 NAAQS for
at least 10 years after the effective date of redesignation to
attainment. EPA is proposing to determine that this maintenance plan
meets the requirements for approval under section 175A of the CAA.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after the Administrator
approves a redesignation to attainment. Eight years after the
redesignation, the state must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain
contingency measures as EPA deems necessary to assure prompt correction
of any future 2010 1-hour SO2 violations. The Calcagni
Memorandum provides further guidance on the content of a maintenance
plan, explaining that a maintenance plan should address five
requirements: the attainment emissions inventory, maintenance
demonstration, monitoring, verification of continued attainment, and a
contingency plan. As is discussed more fully below, EPA is proposing to
determine that Kentucky's maintenance plan includes all the necessary
components and is thus proposing to approve it as a revision to the
Kentucky SIP.
b. Attainment Emissions Inventory
On November 21, 2016, EPA determined that the Campbell-Clermont,
KY-OH Area has attained the 2010 1-hour SO2 NAAQS based on
quality-
[[Page 86671]]
assured monitoring data for the 3-year period from 2013-2015. Kentucky
began development of the attainment inventory by first generating a
baseline emissions inventory for the Commonwealth's portion of the
Campbell-Clermont, KY-OH Area. The Commonwealth selected 2011 as the
base year and 2014 as the attainment emissions inventory year for
developing a comprehensive emissions inventory for SO2. To
evaluate maintenance through 2027 and satisfy the 10-year interval
required in CAA section 175A, Kentucky prepared projected emissions
inventories for 2017-2027. The emissions inventories are composed of
the following general source categories: EGU point, non-EGU point,
area, non-road mobile, and on-road mobile. The emissions inventories
were developed consistent with EPA guidance and are summarized in
Tables 3 through 5 of the following subsection discussing the
maintenance demonstration. For additional information regarding
inventory development, please see section V.B., above, and Appendices C
and E to Kentucky's February 22, 2016, SIP submittal.
c. Maintenance Demonstration
Maintenance of the SO2 standard is demonstrated either
by showing that future emissions will not exceed the level of the
attainment emissions inventory year or by modeling to show that the
future mix of sources and emission rates will not cause a violation of
the NAAQS. KDAQ determined that a modeling analysis of maximum
concentration location was not warranted given the unique circumstances
of this specific redesignation request. Therefore, Kentucky compared
the final year of the maintenance plan (2027) to the attainment
emissions inventory year (2014) and compared interim years to the
attainment emissions inventory year to demonstrate continued
maintenance of the 2010 1-hour SO2 standard. See Tables 3
through 6, below. After the shutdown of the Beckjord Facility in 2014,
there are no significant point sources of SO2 emissions
located in the Area.
Table 3--Kentucky Portion SO2 Emission Inventory Totals for Base Year 2011, Attainment 2014, Projected 2017 & 2022, 2020 Interim, and 2027 Maintenance
(tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014 2027
Sector 2011 Base Attainment 2017 Projected 2020 Interim 2022 Projected Maintenance
--------------------------------------------------------------------------------------------------------------------------------------------------------
EGU Point............................................... 0 0 0 0 0 0
Non-EGU................................................. 0.78 0.78 0.79 0.79 0.78 0.78
Non-road................................................ 0.20 0.20 0.20 0.20 0.20 0.20
Area.................................................... 6.03 6.04 6.06 6.08 6.03 6.02
On-road................................................. 1.55 1.51 1.44 1.40 1.37 1.26
-----------------------------------------------------------------------------------------------
Total............................................... 8.56 8.53 8.49 8.47 8.38 8.26
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--Ohio Portion SO2 Emission Inventory Totals for Base Year 2011, Attainment 2014, Projected 2017 & 2022, Interim 2020, and 2027 Maintenance (tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014 2027
Sector 2011 Base Attainment 2017 Projected 2020 Interim 2022 Projected Maintenance
--------------------------------------------------------------------------------------------------------------------------------------------------------
EGU Point............................................... 90,834.50 32,602.44 0 0 0 0
Non-EGU................................................. 0 0 0 0 0 0
Non-road................................................ 0.17 0.18 0.18 0.18 0.18 0.19
Area.................................................... 7.51 7.63 7.75 7.88 7.86 8.00
On-road................................................. 0.34 0.33 0.32 0.31 0.30 0.28
-----------------------------------------------------------------------------------------------
Total............................................... 90,842.52 32,610.58 8.25 8.37 8.34 8.47
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 5--Combined Campbell-Clermont, KY-OH Area SO2 Emission Inventory Totals for Base Year 2011, Attainment 2014, Projected 2017 & 2022, Interim 2020,
and 2027 Maintenance (tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014 2027
SO2 2011 Base Attainment 2017 Projected 2020 Interim 2022 Projected Maintenance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ohio Portion............................................ 90,842.52 32,610.58 8.25 8.37 8.34 8.47
Kentucky Portion........................................ 8.56 8.53 8.49 8.47 8.38 8.26
-----------------------------------------------------------------------------------------------
Combined SO2 Total.................................. 90,851.08 32,619.11 16.74 16.84 16.72 16.73
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6--Campbell-Clermont, KY-OH Area Comparison of 2014 Attainment Year and 2020 and 2027 Projected Emission Estimates (tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020 Projected 2027 2027 Projected
2014 Attainment 2020 Interim decrease Maintenance decrease
--------------------------------------------------------------------------------------------------------------------------------------------------------
SO2................................................................ 32,619.11 16.84 -32,602.27 16.73 -32.602.38
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 86672]]
As shown in the tables above, the closure of the Beckjord Facility
in 2014 resulted in a reduction of 90,835 tpy based on the Facility's
2011 emissions and a reduction of 32,602 tpy based on the Facility's
2014 emissions. After the shutdown, total SO2 emissions in
the Area remain relatively constant through 2027. Therefore, EPA is
proposing to determine that the maintenance plan demonstrates continued
maintenance through 2027.
d. Monitoring Network
There is one SO2 monitor located within the Kentucky
portion of the Campbell-Clermont, KY-OH Area, and the 2010 1-hour
SO2 nonattainment designation was based on data collected
from 2009-2011 at this monitor. There are no SO2 monitors
located in Clermont County, Ohio. The Kentucky monitor is operated by
the KDAQ's, Florence Regional office. In its maintenance plan, Kentucky
has committed to continue operation of the monitor in the Kentucky
portion of the Campbell-Clermont, KY-OH Area in compliance with 40 CFR
part 58 and has thus addressed the requirement for monitoring. KDAQ's
monitoring network plan was submitted on July 1, 2015, and approved by
EPA on October 28, 2015.\13\
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\13\ Kentucky's approved monitoring network plan can be accessed
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0426.
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e. Verification of Continued Attainment
The Commonwealth of Kentucky, through KDAQ, has the legal authority
to enforce and implement the maintenance plan for the Kentucky portion
of the Area. This includes the authority to adopt, implement, and
enforce any subsequent emissions control contingency measures
determined to be necessary to correct future SO2 attainment
problems. The Commonwealth has committed to track the progress of the
maintenance plan by updating its emissions inventory at least once
every three years and comparing these updated inventories to the 2011
base year and the 2027 projected maintenance year inventories to assess
emission trends, as necessary, and to assure continued compliance with
the standard.
Additionally, monitoring, recordkeeping, and reporting requirements
are incorporated into permits to ensure ongoing compliance. Kentucky
has an active enforcement program to address violations discovered by
the field office. For all of the reasons discussed above, EPA is
proposing to find that Kentucky's maintenance plan meets the
``Verification of Continued Attainment'' requirement.
f. Contingency Measures in the Maintenance Plan
Section 175A of the CAA requires that a maintenance plan include
such contingency measures as EPA deems necessary to assure that the
state will promptly correct a violation of the NAAQS that occurs after
redesignation. The maintenance plan should identify the contingency
measures to be adopted, a schedule and procedure for adoption and
implementation, and a time limit for action by the state.\14\ A state
should also identify specific indicators to be used to determine when
the contingency measures need to be implemented. The maintenance plan
must include a requirement that a state will implement all measures
with respect to control of the pollutant that were contained in the SIP
before redesignation of the area to attainment in accordance with
section 175A(d).
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\14\ In cases where attainment revolves around compliance of a
single source or a small set of sources with emissions limits shown
to provide for attainment, the EPA interprets ``contingency
measures'' to mean that the state agency has a comprehensive program
to identify sources of violations of the SO2 NAAQS and to
undertake aggressive follow-up for compliance and enforcement,
including expedited procedures for establishing enforceable consent
agreement pending the adoption of revised SIPs. See 2010
SO2 Nonattainment Area Guidance.
---------------------------------------------------------------------------
Kentucky will rely on enforcing the applicable requirements in
source permits. All measures in the permits and the SIP are being
implemented prior to redesignation of the Area to attainment. In the
event that a monitored exceedance of the SO2 NAAQS occurs in
the future, the Commonwealth will expeditiously investigate and perform
culpability analyses to determine the source that caused the exceedance
and/or violation, and enforce any SIP or permit limit that is violated.
Enforcement and compliance programs exist in the Commonwealth to
identify sources of violations of the NAAQS and to follow-up for
compliance and enforcement.
Further, if all sources are found to be in compliance with
applicable SIP and permit emission limits, the Commonwealth will
perform the necessary analysis to determine the cause of the
exceedance, and determine what additional control measures are
necessary to impose on the Area's stationary sources to continue to
maintain attainment of the 2010 1-hour SO2 NAAQS.
The Commonwealth will inform any affected stationary sources of
SO2 of the potential need for additional control measures.
If there is an exceedance of the NAAQS for SO2, it will
notify the stationary source(s) that the potential exists for a NAAQS
violation.
Within six months, the source(s) must submit a detailed plan of
action specifying additional control measures to be implemented no
later than 18 months after the notification. The additional control
measures will be submitted to EPA for approval and incorporation into
the SIP. Kentucky noted that, since the only source in the
nonattainment area has shut down, it is not possible at this time to
develop specific contingency measures until the cause of the elevated
concentrations is known. EPA is proposing to find that Kentucky's
maintenance plan meets the requirement for contingency measures.
EPA preliminarily concludes that the maintenance plan adequately
addresses the five basic components of a maintenance plan: The
attainment emissions inventory, maintenance demonstration, monitoring,
verification of continued attainment, and a contingency plan.
Therefore, EPA proposes that the maintenance plan SIP revision
submitted by Kentucky for the Commonwealth's portion of the Area meets
the requirements of section 175A of the CAA and is approvable.
VI. What is the effect of EPA's proposed actions?
EPA's proposed actions establish the basis upon which EPA may take
final action on the issues being proposed for approval today. Approval
of Kentucky's redesignation request would change the legal designation
of the portion of Campbell County that is within the Campbell-Clermont,
KY-OH Area, as found at 40 CFR part 81, from nonattainment to
attainment for the 2010 1-hour SO2 NAAQS. Approval of
Kentucky's associated SIP revision would also incorporate a plan for
maintaining the 2010 1-hour SO2 NAAQS in the Campbell-
Clermont, KY-OH Area through 2027 into the SIP as well as the State's
section 172(c)(1) RACM determination. This maintenance plan includes an
emissions inventory that satisfies the requirements of section
172(c)(3) and contingency measures to remedy any future violations of
the 2010 1-hour SO2 NAAQS.
VII. Proposed Actions
EPA is taking five separate but related actions regarding
Kentucky's request for a clean data determination, the redesignation
request, and the SIP revision associated with the redesignation request
for the Kentucky
[[Page 86673]]
portion of the Campbell-Clermont, KY-OH Area.
First, EPA is proposing to determine that the Commonwealth's
Subpart 1 RACM determination for the Area meets the requirements of CAA
section 172(c)(1) and to incorporate this RACM determination into the
SIP.
Second, EPA is proposing to approve Kentucky's 2011 base year
emissions inventory for the Kentucky portion of the Campbell-Clermont,
KY-OH Area as meeting the requirements of 172(c)(3) and to incorporate
this inventory into the SIP.
Third, EPA is proposing to approve Kentucky's March 31, 2015,
request for the EPA to make a clean data determination for the Area.
Fourth, EPA is proposing to approve the maintenance plan for the
Kentucky portion of the Area into the SIP. The maintenance plan
demonstrates that the Area will continue to maintain the 2010 1-hour
SO2 NAAQS through 2027.
Finally, contingent upon EPA's final approval for Kentucky's RACM
analysis pursuant to section 172(c)(1) and the Commonwealth's base year
inventory pursuant to section 172(c)(3), EPA is proposing to determine
that the Kentucky portion of the Campbell-Clermont, KY-OH Area has met
the criteria under CAA section 107(d)(3)(E) for redesignation from
nonattainment to attainment for the 2010 1-hour SO2 NAAQS.
On this basis, EPA is proposing to approve Kentucky's redesignation
request for the Kentucky portion of the Area.
If finalized, approval of the redesignation request would change
the official designation of the portion of Campbell County that is
within the Campbell-Clermont, KY-OH Area, as found at 40 CFR part 81,
from nonattainment to attainment for the 2010 1-hour SO2
NAAQS.
VIII. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, these proposed actions merely propose to approve state law
as meeting Federal requirements and do not impose additional
requirements beyond those imposed by state law. For this reason, these
proposed actions:
Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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 (Public Law 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Will not have disproportionate human health or
environmental effects under Executive Order 12898 (59 FR 7629, February
16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Sulfur dioxide, Reporting and
recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 21, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-28821 Filed 11-30-16; 8:45 am]
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