
[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Rules and Regulations]
[Pages 80253-80261]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32818]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2011-0017; EPA-R05-OAR-2011-0106; FRL-9610-3]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Ohio and Indiana; 
Redesignation of the Ohio and Indiana Portions of the Cincinnati-
Hamilton 1997 Annual Fine Particulate Matter Nonattainment Area to 
Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving, under the Clean Air Act (CAA), Ohio's and 
Indiana's requests to redesignate their respective portions of the 
Cincinnati-Hamilton nonattainment area (for Ohio: Butler, Clermont, 
Hamilton, and Warren

[[Page 80254]]

Counties, Ohio; for Indiana: a portion of Dearborn County) to 
attainment for the 1997 annual National Ambient Air Quality Standard 
(NAAQS or standard) for fine particulate matter (PM2.5). The 
Ohio Environmental Protection Agency (Ohio EPA) submitted its request 
on December 9, 2010, and the Indiana Department of Environmental 
Management (IDEM) submitted its request on January 25, 2011. EPA's 
approvals here involve several additional related actions. EPA has 
determined that the entire Cincinnati-Hamilton area has attained the 
1997 annual PM2.5 standard. EPA is approving, as revisions 
to the Ohio and Indiana State Implementation Plans (SIPs), the states' 
plans for maintaining the 1997 annual PM2.5 NAAQS through 
2021 in the area. EPA is approving the 2005 emissions inventories for 
the Ohio and Indiana portions of the Cincinnati-Hamilton area as 
meeting the comprehensive emissions inventory requirement of the CAA. 
Finally, EPA finds adequate and is approving Ohio and Indiana's 
Nitrogen Oxides (NOX) and PM2.5 Motor Vehicle 
Emission Budgets (MVEBs) for 2015 and 2021 for the Cincinnati-Hamilton 
area.

DATES: Effective Date: This rule will be effective December 23, 2011.

ADDRESSES: EPA has established two dockets for this action under Docket 
Identification EPA-R05-OAR-2011-0017 and EPA-R05-OAR-2011-0106, 
containing identical material but nominally addressing Ohio's and 
Indiana's submittals, respectively. All documents in these dockets are 
listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in www.regulations.gov or in hard copy at the U.S. 
Environmental Protection Agency, Region 5, Air and Radiation Division, 
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
Federal holidays. We recommend that you telephone Carolyn Persoon at 
(312) 353-8290 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Carolyn Persoon, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 353-8290, persoon.carolyn@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background for the actions?
II. What are the actions EPA is taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. Final Action
VII. Statutory and Executive Order Reviews

I. What is the background for the actions?

    The Ohio EPA submitted its request on December 9, 2010, and IDEM 
submitted its request on January 25, 2011, to redesignate their 
respective portions of the Cincinnati-Hamilton nonattainment area to 
attainment for the 1997 annual PM2.5 NAAQS, and for EPA 
approval of both states' SIP revisions containing maintenance plans for 
the area. In an action published on October 19, 2011 (76 FR 64825), EPA 
proposed approval of Ohio and Indiana's plans for maintaining the 1997 
annual PM2.5 NAAQS, including the emissions inventories 
submitted pursuant to CAA section 172(c)(3); and the NOX and 
PM2.5 MVEBs for the Ohio and Indiana portions of the 
Cincinnati-Hamilton area as contained in the maintenance plan. 
Additional background for today's action is set forth in EPA's October 
19, 2011, notice of direct final rulemaking, which EPA withdrew on 
December 6, 2011, following receipt of adverse comments.

II. What are the actions EPA is taking?

    EPA has determined that the entire Cincinnati-Hamilton area is 
attaining the 1997 annual PM2.5 standard (76 FR 60373) and 
that the Ohio and Indiana portions of the area have met the 
requirements for redesignation under section 107(d)(3)(E) of the CAA. 
Thus, EPA is approving the requests from the states of Ohio and Indiana 
to change the legal designation of their portions of the Cincinnati-
Hamilton area from nonattainment to attainment for the 1997 annual 
PM2.5 NAAQS. This action does not address the Kentucky 
portion of the Cincinnati-Hamilton area. EPA is also taking several 
additional actions related to Ohio's and Indiana's PM2.5 
redesignation requests, as discussed below.
    EPA is approving Indiana's and Ohio's PM2.5 maintenance 
plans for the Cincinnati-Hamilton area as revisions to the Ohio and 
Indiana SIP (such approval being one of the CAA criteria for 
redesignation to attainment status). The maintenance plans are designed 
to keep the Cincinnati-Hamilton area in attainment of the 1997 annual 
PM2.5 NAAQS through 2021.
    EPA is approving 2005 emissions inventories for primary 
PM2.5,\1\ NOX, and sulfur dioxide 
(SO2),\2\ documented in Ohio's and Indiana's 
PM2.5 redesignation request submittals. These emissions 
inventories satisfy the requirement in section 172(c)(3) of the CAA for 
a comprehensive, current emission inventory.
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    \1\ Fine particulates directly emitted by sources and not formed 
in a secondary manner through chemical reactions or other processes 
in the atmosphere.
    \2\ NOX and SO2 are precursors for fine 
particulates through chemical reactions and other related processes 
in the atmosphere.
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    Finally, EPA finds adequate and is approving Ohio's and Indiana's 
2015 and 2021 primary PM2.5 and NOX MVEBs for the 
Cincinnati-Hamilton area. These MVEBs will be used in future 
transportation conformity analyses for the area. Further discussion of 
the basis for these actions is provided below.

III. What is EPA's response to comments?

    EPA received two sets of comments submitted by Robert Ukeiley on 
behalf of Sierra Club: The first set, dated October 19, 2011, and the 
second set dated November 18, 2011. A summary of the comments and EPA's 
responses are provided below.
    Comment 1a: The comment contends that it is inappropriate for EPA 
to redesignate these areas to attainment at this time, claiming that 
EPA is illegally delaying issuing a final rule to revise the annual 
PM2.5 NAAQS, and that EPA's Clean Air Science Advisory 
Committee (CASAC) has recommended adoption of a lower NAAQS. The 
Commenter alleges that EPA is removing the protection of a 
scientifically inadequate NAAQS, while not adopting a more protective 
standard.
    Response 1a: This redesignation does not remove the protection of 
the 1997 annual PM2.5 NAAQS. This redesignation does not 
concern the new NAAQS, addresses only the 1997 annual PM2.5 
NAAQS, and has no impact on EPA's actions with respect to a revised 
NAAQS.
    Comment 1b: The Commenter claims that ``EPA has failed to conduct 
an adequate analysis under Clean Air Act Section 110(l) on what effect 
redesignation will have on the 2006 24-hour PM2.5 NAAQS, the 
1-hour NOX NAAQS, the 1-hour SO2 NAAQS and the 
1997 and 2008 75 parts per billion ozone NAAQS.'' In subsequent 
comments, the Commenter also states,

[[Page 80255]]

``EPA has not conducted an adequate analysis of the effect 
redesignation will have on other National Ambient Air Quality 
Standards''.
    Response 1b: Section 110(l) provides in part: ``the Administrator 
shall not approve a revision of a plan if the revision would interfere 
with any applicable requirement concerning attainment and reasonable 
further progress * * *, or any other applicable requirement of this 
chapter.'' As a general matter, EPA must and does consider section 
110(l) requirements for every SIP revision, including whether the 
revision would ``interfere with'' any applicable requirement. See, 
e.g., 70 FR 53, 57 (January 3, 2005); 70 FR 17029, 17033 (April 4, 
2005); 70 FR 28429, 28431 (May 18, 2005); and 70 FR 58119, 58134 
(October 5, 2005). Neither Ohio's nor Indiana's redesignation request 
and maintenance plan for the 1997 annual PM2.5 NAAQS revises 
or removes any existing emissions limit for any NAAQS, nor does it 
alter any existing control requirements. On that basis, EPA concludes 
that the redesignations will not interfere with attainment or 
maintenance of any of these air quality standards. The Commenter does 
not provide any information in its comment to indicate that approval of 
these redesignations would have any impact on the Area's ability to 
comply with on the 2006 24-hour PM2.5 NAAQS, the 1-hour 
NO2 NAAQS, the 1-hour SO2 NAAQS or the 1997 8-
hour ozone NAAQS and 2008 75 parts per billion ozone NAAQS. In fact, 
the maintenance plans provided with both states' submissions 
demonstrate a decline in the direct PM2.5 and 
PM2.5 precursor emissions over the timeframe of the initial 
maintenance period. As a result, the redesignations do not relax any 
existing rules or limits, nor will the redesignation alter the status 
quo air quality.\3\ The Commenter has not explained why the 
redesignation might interfere with attainment of any standard or with 
satisfaction of any other requirement, and EPA finds no basis under 
section 110(l) for EPA to disapprove the SIP revision at issue or to 
redesignate the area as requested.
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    \3\ EPA notes that the Cincinnati/Northern Kentucky Area does 
not have violating monitors for the 2006 24-hour PM2.5 
NAAQS, the 1-hour NOX NAAQS, or the 1-hour SO2 
NAAQS, the 1-hour and 8-hour ozone NAAQS, and that this Area has 
never been designated nonattainment for 2006 24-hour 
PM2.5 NAAQS, the 1-hour NOX NAAQS, or the 1-
hour SO2 NAAQS.
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    Comment 1c: The Commenter elaborates on the first comment in the 
second set of comments submitted, claiming ``For example, but this is 
only one example, as explained below the Ohio and Indiana SIPs do not 
currently have Reasonable Available Control Technology (RACT) standards 
in place for PM2.5. Implementing these RACT standards would 
have reduced NOX and SO2 which would have a co-
benefit of helping with the 2006 24-hour PM2.5 NAAQS, the 1-
hour NOX NAAQS, the 1-hour SO2 NAAQS, and the 
1997 and 2008 ozone NAAQS as well as visibility. EPA needs to 
demonstrate that removing this co-benefit will not interfere with 
attainment, reasonable further progress and any other applicable 
requirement.''
    Response 1c: This example is fallacious, for reason given in 
response 6(b) below--no RACT is required because the area is attaining 
the standard.
    Comment 2a: The Commenter argues that EPA has not established that 
any of the emission reductions did not come from the NOX SIP 
Call, CAIR (the Clean Air Interstate Rule), and CSAPR (the Cross-State 
Air Pollution Rule, also known as the Transport Rule).
    Response 2a: EPA disagrees with the Commenter's assertion. EPA and 
the states have shown that emission reductions arose both from the 
transport regulations listed above and from other regulatory 
requirements. The Cincinnati-Hamilton area contains various sources of 
emissions (point source, area, and mobile), and emission reductions 
from the nonattainment year of 2005 to the attainment year of 2008 are 
attributed to many permanent and enforceable measures. The 
NOX SIP Call, CAIR, and CSAPR are all measures that have 
resulted in emission reductions from point source Electric Generating 
Units (EGUs). In addition, emission reduction from mobile sources, 
which account for 53% of NOX emissions and 58% of direct 
PM2.5 for the nonattainment year of 2005, are attributed to 
permanent and enforceable engine and fuel standards. Due to these 
permanent and enforceable measures, mobile sources reduced their 
emissions by 9,367 tons of NOX, and 792 tons of direct 
PM2.5 between the years of 2005 to 2008.
    Comment 2b. The Commenter asserts that emission reductions pursuant 
to NOX SIP Call, CAIR and CSAPR programs are not permanent 
and enforceable because these programs are cap and trade programs. The 
Commenter further opines that any source which reduced its actual 
emissions pursuant to one of these programs could at any time in the 
future choose to increase their emissions by purchasing emission 
credits.
    Response 2b. Contrary to the Commenter's statement, EPA did 
establish in the proposal notice that at least part of the emission 
reductions that helped the area achieve attainment came from programs 
other than the NOX SIP Call, CAIR and CSAPR. The notice 
lists several permanent and enforceable reductions in emissions 
resulting from implementation of the Ohio and Indiana SIPs, applicable 
Federal air pollution control regulations, and other reductions that 
are not ``cap and trade'' programs. Those programs include Tier 2 
vehicle standards, heavy-duty gasoline and diesel highway vehicle 
standards, nonroad spark-ignition engines and recreational engines 
standards, large nonroad diesel engine standards, open burning bans, 
and fugitive emissions standards. See 76 FR 65465.
    Further, EPA disagrees with the Commenter's conclusion that 
emission reductions associated with trading programs such as the 
NOX SIP Call, CAIR, and CSAPR are not permanent and 
enforceable simply because the underlying program is an emissions 
trading program. The Commenter appears to be arguing that these 
reductions cannot be considered permanent and enforceable within the 
meaning of section 107(d)(3)(E)(iii) of the CAA. This section 
107(d)(3)(E)(iii) requires that, in order to redesignate an area to 
attainment, the Administrator must determine that ``the improvement in 
air quality is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable SIP and applicable 
federal air pollutant control regulations and other permanent and 
enforceable reductions.'' EPA disagrees with the Commenter's conclusion 
that reductions from trading programs can't be considered permanent and 
enforceable because these programs allow individual sources to choose 
between purchasing emission credits and reducing emissions.
    The final CSAPR allows sources to trade allowances with other 
sources in the same or different states while firmly constraining any 
emissions shifting that may occur by requiring a strict emission 
ceiling in each state (the budget plus variability limit). As explained 
in EPA's proposed redesignation notice for the Ohio and Indiana 
portions of the Cincinnati-Hamilton area, the emission reduction 
requirements of CAIR are enforceable through the 2011 control period, 
and because CSAPR has now been promulgated to address the requirements 
previously addressed by CAIR and gets similar or greater reductions in 
the relevant areas in 2012 and beyond, EPA considers the emission 
reductions that led to attainment in the Cincinnati-Hamilton area to be 
permanent and enforceable.

[[Page 80256]]

The emission ceilings within each state are a permanent requirement of 
the CSAPR and are made enforceable through the associated Federal 
Implementation Plans.
    EPA responded to a similar comment in its ``Approval and 
Promulgation of Air Quality Implementation Plans; Redesignation of the 
Evansville area to attainment of the Fine Particulate Matter Standard'' 
76 FR 59527, 59529/1, September 27, 2011. In that notice, EPA discusses 
several factors which support EPA's determination that the 
SO2 reductions in the Evansville area are permanent and 
enforceable, and which also apply to the Cincinnati area. First, given 
the mandates under CSAPR, any utility that has already spent the 
hundreds of millions of dollars to install scrubbers will find 
continued effective operation of those controls to be far more cost-
effective than disregarding this investment and either expending 
similar capital installing replacement scrubbers elsewhere or 
purchasing credits at a price equivalent to that capital already spent. 
In short, any utility in a state covered by CSAPR provisions related to 
PM2.5 that has installed scrubbers is almost certain under 
CSAPR to retain the scrubbers and operate them effectively. Second, any 
action by a utility that increases its emissions, requiring the 
purchase of allowances, necessitates a corresponding reduction by the 
utility that sells the allowances. Given the regional nature of 
particulate matter, this corresponding emission reduction will have an 
air quality benefit that will compensate at least in part for the 
impact of any emission increase from utility companies outside but near 
the Cincinnati-Hamilton area. In accordance with the opinion of the 
Court of Appeals for the District of Columbia Circuit, CSAPR includes 
assurance provisions to ensure that the necessary emission reductions 
occur within each covered state.
    The recent proposed rule revision referenced by the Commenter would 
amend the CSAPR assurance penalty provisions for all states within the 
program so they start in 2014 instead of 2012. 76 FR 63860, October 14, 
2011. As explained in the proposal, which was subject to public review 
and comment, this revision would promote the development of allowance 
market liquidity, thereby smoothing the transition from the CAIR 
programs to the CSAPR programs in 2012.
    Further, Ohio's and Indiana's maintenance plans provide for 
verification of continued attainment by performing future reviews of 
triennial emissions inventories and also for contingency measures to 
ensure that the NAAQS is maintained into the future if monitored 
increases in ambient PM2.5 concentrations occur. 76 FR 
64825. For this and the above reasons, EPA disagrees that the Commenter 
has identified a basis on which EPA should disapprove this SIP 
revision.
    Comment 3: The Commenter asserts that ``Emissions calculations for 
on-road mobile sources fail to consider 15% ethanol in gasoline.''
    Response 3: Ethanol 15 (E15) is not mandated by EPA. EPA granted a 
partial waiver for vehicles model years 2001 and newer, light duty 
vehicles (76 FR 4662) to be able to use E15. To receive a waiver under 
CAA section 211(f)(4), a fuel or fuel additive manufacturer must 
demonstrate that a new fuel or fuel additive will not cause or 
contribute to the failure of engines or vehicles to achieve compliance 
with the emission standards to which they have been certified over 
their useful life. Data used to act upon the approval of the E15 
partial waiver showed that model year 2001 and newer vehicles would 
still meet their certified engine standards for emissions for both 
short and long term use, and use of E15 would not significantly 
increase the emission from these engines. EPA's partial waiver for E15 
is based on extensive studies done by the Department of Energy, as well 
as the Agency's engineering assessment to determine the effects of 
exhaust and evaporative emissions for the fleet prior to the partial 
waiver. The criteria for granting the waiver was not that there are no 
emission impacts of E15, but rather that vehicles operating on it would 
not be expected to violate their emission standards in-use. As 
discussed in the waiver decision, there are expected to be some small 
emission impacts. E15 is expected to cause a small immediate emission 
increase in NOX emissions. However, due to its lower 
volatility than the E10 currently in-use, its use is also expected to 
result in lower evaporative VOC emissions. Any other emissions impacts 
related to E15 would be a result of misfueling of E15 in model year 
2000 and older vehicles, and recreational or small engines. EPA has 
approved regulations dealing specifically with the mitigation of 
misfueling and reducing the potential increase in emissions from 
misfueling (76 FR 44406).
    The partial waivers that EPA has granted to E15 do not require that 
E15 be made or sold. The waivers merely allow fuel or fuel additive 
manufacturers to introduce E15 into commerce if they meet the waivers' 
conditions. Other Federal, state and local requirements must also be 
addressed before E15 may be sold. The granting of the partial waivers 
is only one of several requirements for registration and distribution 
of E15.
    Since E15 may never be used in Ohio and Indiana, and even if it is, 
due to the small and opposite direction of emission impacts of E15, the 
limited vehicle fleet which can use it, and the measures required to 
avoid mitigating misfueling, EPA believes that any potential emission 
impacts of E15 will be less than the maintenance plan safety margin by 
which Ohio and Indiana show maintenance.
    Comment 4a: The Commenter contends that the ``Ohio and Indiana 
maintenance plans will not provide for maintenance for ten years after 
the redesignation,'' based on the Commenter's belief that EPA will be 
unable to finalize its approval of the requests for redesignation by 
the end of 2011.
    Response 4a: Since EPA has promulgated its approvals of the 
redesignation requests of Ohio and Indiana by the end of 2011, and the 
maintenance plans provide for maintenance through the end of 2021, it 
is evident that the Commenter's concern was misplaced, and that the 
maintenance plans do provide for a ten-year maintenance period in 
accordance with CAA section 175A.
    Commment 4b: The Commenter asserts that the Ohio and Indiana 
maintenance plans are deficient in part because the contingency 
measures they include provide for their implementation within 18 months 
of a monitored violation, if one occurs. The Commenter claims that as a 
consequence, the ``contingency measures do not provide for prompt 
correction of violations.''
    Response 4b: The Commenter overlooks the provisions of the CAA 
applicable to contingency measures. Section 175A(d) provides that 
``[e]ach plan revision submitted under this section shall contain such 
contingency provisions as the Administrator deems necessary to assure 
that the state will promptly correct any violation of the standard 
which occurs after the redesignation of the area as an attainment 
area.'' (emphasis added). Thus Congress gave EPA discretion to evaluate 
and determine the contingency measures EPA ``deems necessary'' to 
assure that the state will promptly correct any subsequent violation. 
EPA has long exercised this discretion in its rulemakings on section 
175A contingency measures in redesignation maintenance plans, allowing 
as contingency measures commitments to adopt and implement in lieu of 
fully

[[Page 80257]]

adopted contingency measures, and finding that implementation within 18 
months of a violation complies with the requirements of section 175A. 
See recent redesignations, e.g. Indianapolis PM2.5 annual 
standard (76 FR 59512), Lake and Porter 8-hour ozone standard (75 FR 
12090), and Northwest Indiana PM2.5 annual standard (76 FR 
59600). Section 175A does not establish any deadlines for 
implementation of contingency measures after redesignation to 
attainment. It also provides far more latitude than does section 
172(c)(9), which applies to a different set of contingency measures 
applicable to nonattainment areas. Section 172(c)(9) contingency 
measures must ``take effect * * * without further action by the State 
or [EPA].'' By contrast, section 175A confers upon EPA the discretion 
to determine what constitutes adequate assurance, and thus permits EPA 
to take into account the need of a state to assess, adopt implement 
contingency measures if and when a violation occurs after an area's 
redesignation to attainment. Therefore, in accordance with the 
discretion accorded it by statute, EPA may allow reasonable time for 
states to analyze data and address the causes and appropriate means of 
remedying a violation. In assessing what ``promptly'' means in this 
context, EPA also may take into account time for adopting and 
implementation of the appropriate measure. In the case of the 
Cincinnati-Hamilton area, EPA reasonably concluded that, 18 months 
constitutes a timeline consistent with prompt correction of a potential 
monitored violation. This timeframe also conforms with EPA's many prior 
rulemakings on acceptable schedules for implementing section 175A 
contingency measures.
    Comment 4c: The Commenter asserts that the contingency measures 
contained in the maintenance plans are ``too vague''.
    Response 4c: As discussed above in response to comment 4(b), the 
CAA does not specify the requisite nature, scope, specificity, or 
number of contingency measures to be included in a maintenance plan 
under section 175A. It is for EPA to determine whether the state has 
given adequate assurance that it can promptly correct a violation. Both 
Ohio and Indiana have submitted contingency measures that EPA deems 
adequate. They have committed to remedy a future violation, and have 
included measures to address potential violations from a range of 
sources and a timeline for promptly completing adoption and 
implementation. The states have identified measures that are 
sufficiently specific but which allow for latitude in potential scope. 
This will enable the states to address a range of potential sources and 
differing degrees and types of violations. EPA believes that the 
contingency measures set forth in the submittal, combined with the 
states' commitment to an expeditious timeline and process for 
implementation, provide assurance that the states will promptly correct 
a future potential violation. Given the uncertainty as to timing, 
degree and nature of any future violation, EPA believes that the 
contingency measures set forth adequately balance the need for 
flexibility in the scope and type of measure to be implemented with the 
need for expeditious state action.
    Comment 5: The Commenter asserts that the Ohio and Indiana Startup, 
Shutdown, Malfunction, and/or Maintenance provisions (SSM) are 
inconsistent with the Act and EPA policy because they provide that 
excess emissions are not violations. The Commenter also claims that the 
regulation is ambiguous because it lacks procedural specifications 
indicating whether it is to be interpreted as a ``qualified exemption'' 
or an ``affirmative defense.'' In the second set of comments received, 
the Commenter asserts, ``The Ohio and Indiana SIPs contain 
impermissible provisions governing startup, shutdown, malfunctions and 
scheduled maintenance.''
    Response 5: The CAA sets forth the general criteria for 
redesignation of an area from nonattainment to attainment in section 
107(d)(3)(E). Specifically, that section identifies five criteria, 
including that ``the Administrator has fully approved the applicable 
implementation plan for the area under section 7410(k) of this title.'' 
42 U.S.C. 7407(d)(3)(E)(ii). Although the Commenter does not 
specifically cite to section 107(d)(3)(E)(ii), the language used in the 
comment (``fully approved adequate SIP'') appears to derive from this 
section of the CAA (and the Commenter does later cite to section 
107(d)(3)(E) in the concluding paragraph of the comment letter). As a 
preliminary matter, the issue before EPA in the current rulemaking 
action is a redesignation for the Ohio and Indiana portions of the 
Cincinnati-Hamilton area to attainment for the 1997 PM2.5 
standard, including the maintenance plan. The SIP provisions identified 
in the Commenter's letter are not currently being proposed for revision 
as part of the redesignation submittals. Thus, EPA's review here is 
limited to whether the already approved provisions affect any of the 
requirements for redesignation in a manner that would preclude EPA from 
approving the redesignation requests. Because the rules cited by the 
Commenter are not pending before EPA and/or are not the subject of this 
rulemaking action, EPA did not undertake a full SIP review of the 
individual provisions. It has long been established that EPA may rely 
on prior SIP approvals in approving a redesignation request plus any 
additional measures it may approve in conjunction with a redesignation 
action. See e.g., page 3 of the September 4, 1992, John Calcagni 
Memorandum; Wall v. EPA, 265 F.3d 426 (6th Cir. 2001); 68 FR 25413, 
25426 (May 12, 2003).
    Additionally, the comment inserted the word ``adequate'' into the 
phrase ``fully approved SIP'' (which is the language of Section 
107(d)(3)(E)(ii)), such that the Commenter stated that Ohio and Indiana 
must have a ``fully approved adequate SIP.'' Clearly the word 
``adequate'' is not included in Section 107(d)(3)(E)(ii), and its 
inclusion substantially alters the plain text of the CAA. Furthermore, 
while the Commenter opines that the cited-to provisions of the Ohio and 
Indiana rules result in a ``regulatory structure that is inconsistent 
with the fundamental requirement that all excess emissions be 
considered violations,'' Commenter does not link this concern with 
deficiencies in Ohio's and Indiana's redesignation submittals for the 
Ohio and Indiana portions of the Cincinnati-Hamilton area. There is no 
information in the comment indicating that Ohio or Indiana has excused 
violations and that such actions result in Ohio or Indiana failing to 
meet a requirement for redesignation. Furthermore, there is no 
information in the comment indicating that even if Ohio or Indiana were 
to excuse such violations that such violations would not be actionable 
by EPA or citizens. For Indiana's SIP, 326 IAC 1-6-4 was formerly 
codified as 325 IAC 1.1-5. When EPA approved that rule in 1984, it 
noted Indiana's clarification that any malfunction causing excess 
emissions would be treated as a SIP violation; and that the rule's 
criteria would be used in determining an appropriate enforcement 
response. (February 14, 1984, 49 FR 5618). This constitutes an 
``enforcement discretion'' approach, acceptable under EPA's applicable 
policies. EPA also noted that it had independent authority under 
Section 113 of the CAA to determine whether enforcement discretion was 
an appropriate response in a particular case.
    On June 30, 2011, Sierra Club filed a ``Petition to Find Inadequate 
and Correct Several State Implementation Plans under Section 110 of the 
Clean

[[Page 80258]]

Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance 
Provisions''. EPA has agreed to respond to this petition by August 31, 
2012 as part of settlement of a lawsuit. See Sierra Club et al. v. 
Jackson, No. 3:10-cv-04060-CRB (N.D. Cal). At this time, with regards 
to the redesignation of the Ohio and Indiana portion of the Cincinnati-
Hamilton area, EPA does not agree that the Commenter has raised a basis 
on which EPA could disapprove the redesignation. Ohio and Indiana have 
fully approved SIPs consistent with applicable requirements.
    Comment 6a: The Commenter asserts that the Ohio SIP does not meet 
the requirement of section 107(d)(3)(E)(ii) because EPA has disapproved 
Ohio's ``good neighbor provision'' Section 110(a)(2)D)(i)(I).
    Response 6a: The requirements applicable for purposes of 
redesignation are those which at a minimum are linked to the attainment 
status of the area being redesignated. As noted in the proposal (76 FR 
64825), all areas, regardless of their designation as attainment or 
nonattainment, are subject to section 110(a)(2)(D). The applicability 
of this provision is not connected with nonattainment plan submissions 
or with the attainment status of an area. A nonattainment area remains 
subject to the requirements of section 110(a)(2)(D) after it has been 
redesignated to attainment. Therefore EPA has long interpreted the 
110(a)(2)(D) requirements as not applicable requirement for purposes of 
redesignation. EPA has leeway to determine what constitutes an 
``applicable'' requirement under section 107(d)(3)(E), and EPA's 
interpretation is entitled to deference. Sierra Club v. EPA, 375 F.3d 
537 (7th Cir. 2004).
    EPA has consistently interpreted only those section 110 
requirements that are linked with a particular area's designation as 
the requirements to be considered in evaluating a redesignation 
request. See, e.g., EPA's positions on the applicability of conformity, 
oxygenated fuels requirements for purposes of redesignations. See 
Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-
53176, October 10, 1996, and 62 FR 24826, May 7, 1997); Cleveland-
Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and 
Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See 
also the discussion on this issue in the Cincinnati, Ohio 1-hour ozone 
redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, 
Pennsylvania 1-hour ozone redesignation (66 FR 50399, October 19, 
2001).
    Comment 6b: The Commenter contends that the Ohio and Indiana SIPs 
do not have approved RACT rules.
    Response 6b: EPA interprets RACT for PM2.5 as linked to 
attainment needs of the area. If an area is attaining the 
PM2.5 standard, it clearly does not need further measures to 
reach attainment. Therefore, under EPA's interpretation of the RACT 
requirement, as it applies to PM2.5, Ohio and Indiana have 
satisfied the RACT requirement without need for further measures. On 
May 22, 2008, EPA issued a memorandum that clarified its position with 
respect to the relationship between PM2.5 attainment and 
RACT requirements.
    ``Memorandum from William T. Harnett, Director, Air Quality Policy 
Division to Regional Air Division Directors, PM2.5 Clean 
Data Policy Clarification.'' This memorandum explained that 40 CFR 
51.1004(c) provides that a determination that an area that has attained 
the PM2.5 standard suspends the requirements to submit RACT 
and RACM requirements.
    Section 51.1010 provides in part: `For each PM2.5 
nonattainment area, the state shall submit with the attainment 
demonstration a SIP revision demonstrating that it has adopted all 
reasonably available control measures (including RACT for stationary 
sources) necessary to demonstrate attainment as expeditiously as 
practicable and to meet any RFP requirements.'
    Thus the regulatory text defines RACT as included in RACM, and 
provides that it is required only insofar as it is necessary to advance 
attainment. See also section 51.1010(b). The Commenter claims that Wall 
v. EPA, 265 F.3d 426, 442 (6th Cir. 2001), establishes that fully 
adopted RACT is nonetheless required. The Wall case, however, is not 
applicable to RACT requirements for the PM2.5 standard. The 
Wall decision addressed entirely different statutory provisions for 
ozone RACT under CAA Part D subpart 2, which do not apply or pertain to 
the subpart 1 RACT requirements for PM2.5.
    Comment 6c: The Commenter asserts that the Ohio and Indiana SIPs 
lack PM2.5 nonattainment New Source Review (NSR) programs. 
The Commenter also contends that the prevention of significant 
deterioration (PSD) program is part of the SIP that an area being 
redesignated needs to have to ensure that the area will stay in 
attainment. The Commenter takes the position that EPA cannot approve 
the redesignation requests because Ohio and Indiana do not have 
adequate PM2.5 PSD programs. The Commenter bases its 
conclusion that Ohio and Indiana's PSD programs are inadequate for 
PM2.5 on the contention that the programs do not contain 
significant emission rates for PM2.5 and its precursors, and 
that the programs do not include PM2.5 increments.
    Response 6c: Both Ohio and Indiana have approved nonattainment NSR 
programs in their SIPs. EPA approved Ohio's current NSR program on 
January 10, 2003 (68 FR 1366). EPA approved Indiana's current NSR 
program on October 7, 1994 (59 FR 51108). Nonetheless, since PSD 
requirements will apply after redesignation, the area need not have a 
fully-approved NSR program for purposes of redesignation, provided that 
the area demonstrates maintenance of the NAAQS without part D NSR. A 
detailed rationale for this view is described in a memorandum from Mary 
Nichols, Assistant Administrator for Air and Radiation, dated October 
14, 1994, entitled, ``Part D New Source Review Requirements for Areas 
Requesting Redesignation to Attainment.'' The memo states, ``[EPA] * * 
* is establishing a new policy under which nonattainment areas may be 
redesignated to attainment notwithstanding the lack of a fully-approved 
part D NSR program, provided the program is not relied upon for 
maintenance.'' In this case, neither Ohio nor Indiana has relied upon 
NSR to maintain the standard.
    Ohio and Indiana also each have an EPA approved PSD program that 
includes PM2.5 as a NSR pollutant. While the Commenter is 
correct in stating that both Ohio and Indiana's approved PSD SIPs do 
not include specific significant emissions rates for PM2.5 
or its precursors, the Ohio and Indiana SIPs do include a provision 
that sets ``any emission rate'' as the significant emission rate for 
any regulated NSR pollutant that does not have a specific significant 
emission rate listed in the state rule. Under Indiana's rule, a 
regulated NSR pollutant includes a pollutant, for which a NAAQS has 
been promulgated, and constituents or precursors for the pollutants 
identified as a NAAQS by EPA.
    Therefore, any increase in direct PM2.5 emissions or 
emissions of its precursors (SO2 and NOX) will 
trigger the requirements to obtain a PSD permit; to perform an air 
quality analysis that demonstrates that the proposed source or 
modification will not cause or contribute to a violation of the 
PM2.5 NAAQS; and to apply best available control technology 
(BACT) for direct PM2.5 and/or the pertinent precursor.
    In addition, the fact that Ohio's and Indiana's approved PSD SIPs 
lack PM2.5 increments does not prevent the program from 
addressing and helping to

[[Page 80259]]

assure maintenance of the PM2.5 standard in accordance with 
CAA section 175A. A PSD increment is the maximum increase in 
concentration that is allowed to occur above a baseline concentration 
for a pollutant. Even in the absence of an approved PSD increment, the 
approved PSD program prohibits air quality from deteriorating beyond 
the concentration allowed by the applicable NAAQS. Thus Ohio's and 
Indiana's approved PSD programs are adequate for purposes of assuring 
maintenance of the 1997 annual PM2.5 standard as required by 
section 175A.
    EPA notes that Indiana has adopted emergency rules containing 
significant emissions rates of 10 tons per year for direct 
PM2.5 and 40 tons per year for sulfur dioxide and nitrogen 
oxide (as PM2.5 precursors). The emergency rules also 
contain maximum allowable PM2.5 increments of 4 micrograms 
per cubic meter ([micro]g/m\3\) for the annual standard and 9 [micro]g/
m\3\ for the 24-hour standard.\4\ The state is currently implementing 
the emergency rules at the state level and is in the process of 
adopting permanent rules for submission to EPA.
---------------------------------------------------------------------------

    \4\ EPA's redesignation action here addresses only the 1997 
annual PM2.5 standard, and does not address the 24-hour 
PM2.5 standard.
---------------------------------------------------------------------------

    Irrespective of the state's emergency rules, EPA concludes that the 
features of Indiana's currently approved PSD program cited by the 
Commenter do not detract from the program's adequacy for purposes of 
maintenance of the standard and redesignation of the area. As it 
stands, the currently approved PSD program is sufficient for the 
purposes of maintaining the 1997 annual PM2.5 NAAQS in the 
Cincinnati-Hamilton area.

IV. Why is EPA taking these actions?

    EPA has determined that the Cincinnati-Hamilton area has attained 
the 1997 annual PM2.5 NAAQS. EPA has also determined that 
all other criteria have been met for the redesignation of the Ohio and 
Indiana portions of the Cincinnati-Hamilton area from nonattainment to 
attainment of the 1997 annual PM2.5 NAAQS. See CAA section 
107(d)(3)(E). The detailed rationale for EPA's findings and actions is 
set forth in the proposed rulemaking of October 19, 2011 (76 FR 64825) 
and in this final rulemaking.

V. Final Action

    EPA has previously made the determination that the Cincinnati-
Hamilton area has attained the 1997 annual PM2.5 standard 
(76 FR 60373). EPA is determining that the area continues to attain the 
standard and that the Ohio and Indiana portions of the area meet the 
requirements for redesignation to attainment of that standard under 
section 107(d)(3)(E) of the CAA. Thus, EPA is approving the requests 
from Ohio and Indiana to change the legal designation of their portions 
of the Cincinnati-Hamilton area from nonattainment to attainment for 
the 1997 annual PM2.5 NAAQS. EPA is approving Ohio's and 
Indiana's 1997 annual PM2.5 maintenance plans for the 
Cincinnati-Hamilton area as revisions to the respective SIPs because 
the plans meet the requirements of section 175A of the CAA. EPA is 
approving the 2005 emissions inventories for primary PM2.5, 
NOX, and SO2, documented in Indiana's and Ohio's 
December 9, 2010, and January 25, 2011, submittals as satisfying the 
requirement in section 172(c)(3) of the CAA for a comprehensive, 
current emission inventory. Finally, EPA finds adequate and is 
approving 2015 and 2021 primary PM2.5 and NOX 
MVEBs submitted from each state for the Ohio and Indiana portions of 
the Cincinnati-Hamilton area. These MVEBs will be used in future 
transportation conformity analyses for the area after the effective 
date for the adequacy finding and approval.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause 
for this action to become effective immediately upon publication. This 
is because a delayed effective date is unnecessary due to the nature of 
a redesignation to attainment, which relieves the Area from certain CAA 
requirements that would otherwise apply to it. The immediate effective 
date for this action is authorized under both 5 U.S.C. 553(d)(1), which 
provides that rulemaking actions may become effective less than 30 days 
after publication if the rule--grants or recognizes an exemption or 
relieves a restriction, and section 553(d)(3), which allows an 
effective date less than 30 days after publication--as otherwise 
provided by the agency for good cause found and published with the 
rule. The purpose of the 30-day waiting period prescribed in section 
553(d) is to give affected parties a reasonable time to adjust their 
behavior and prepare before the final rule takes effect. Today's rule, 
however, does not create any new regulatory requirements such that 
affected parties would need time to prepare before the rule takes 
effect. Rather, today's rule relieves the Ohio and Indiana of various 
requirements for the Ohio and Indiana portions of the Cincinnati-
Hamilton area. For these reasons, EPA finds good cause under 5 U.S.C. 
553(d)(3) for this action to become effective on the date of 
publication of this action.

VII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the status of geographical area 
and do not impose any additional regulatory requirements on sources 
beyond those required by state law. A redesignation to attainment does 
not in and of itself impose any new requirements, but rather results in 
the application of requirements contained in the CAA for areas that 
have been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For these reasons, these actions:
     Are not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory action subject to Executive 
Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because

[[Page 80260]]

application of those requirements would be inconsistent with the CAA; 
and,
     Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this final rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the Commonwealth, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 21, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2)).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks.

    Dated: December 14, 2011.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart P--Indiana

0
2. Section 52.776 is amended by adding paragraphs (v)(3) and (w)(3) to 
read as follows:


Sec.  52.776  Control strategy: Particulate matter.

* * * * *
    (v) * * *
    (3) The Indiana portion of the Cincinnati-Hamilton nonattainment 
area (Lawrenceburg Township in Dearborn County), as submitted on 
December 9, 2010. The maintenance plan establishes 2015 motor vehicle 
emissions budgets for the Ohio and Indiana portions of the Cincinnati-
Hamilton area of 1,678.60 tpy for primary PM2.5 and 
35,723.83 tpy for NOX and 2021 motor vehicle emissions 
budgets of 1,241.19 tpy for primary PM2.5 and 21,747.71 tpy 
for NOX.
    (w) * * *
    (3) Indiana's 2005 NOx, directly emitted PM2.5, and 
SO2 emissions inventory satisfies the emission inventory 
requirements of section 172(c)(3) of the Clean Air Act for the 
Cincinnati-Hamilton area.

Subpart KK--Ohio

0
3. Section 52.1880 is amended by adding paragraphs (p) and (q) to read 
as follows:


Sec.  52.1880  Control strategy: Particulate matter.

* * * * *
    (p) Approval--The 1997 annual PM2.5 maintenance plans 
for the following areas have been approved:
    (1) The Ohio portion of the Cincinnati-Hamilton nonattainment area 
(Butler, Clermont, Hamilton, and Warren Counties), as submitted on 
January 25, 2011. The maintenance plan establishes 2015 motor vehicle 
emissions budgets for the Ohio and Indiana portions of the Cincinnati-
Hamilton area of 1,678.60 tpy for primary PM2.5 and 
35,723.83 tpy for NOX and 2021 motor vehicle emissions 
budgets of 1,241.19 tpy for primary PM2.5 and 21,747.71 tpy 
for NOX.
    (2) [Reserved]
    (q) Approval--The 1997 annual PM2.5 comprehensive 
emissions inventories for the following areas have been approved:
    (1) Ohio's 2005 NOx, directly emitted PM2.5, and 
SO2 emissions inventory satisfies the emission inventory 
requirements of section 172(c)(3) for the Cincinnati-Hamilton area.
    (2) [Reserved]

PART 81--[AMENDED]

0
4. The authority citation for part 81 continues to read as follows:

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

0
5. Section 81.315 is amended by revising the entry for Cincinnati-
Hamilton in the table entitled ``Indiana PM2.5 (Annual 
NAAQS)'' to read as follows:


Sec.  81.315  Indiana.

* * * * *

                              Indiana PM2.5
                             [Annual NAAQS]
------------------------------------------------------------------------
                                               Designation \a\
          Designated area          -------------------------------------
                                       Date \1\             Type
------------------------------------------------------------------------
 
                              * * * * * * *
Cincinnati-Hamilton, IN: Dearborn       12/23/2011  Attainment.
 County (part) Lawrenceburg
 Township.
 
                              * * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
  otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.


[[Page 80261]]

* * * * *

0
6. Section 81.336 is amended by revising the entry for Cincinnati-
Hamilton, OH in the table entitled ``Ohio PM2.5 (Annual 
NAAQS)'' to read as follows:


Sec.  81.336  Ohio.

* * * * *

                               Ohio PM2.5
                             [Annual NAAQS]
------------------------------------------------------------------------
                                               Designation \a\
          Designated area          -------------------------------------
                                       Date \1\             Type
------------------------------------------------------------------------
 
                              * * * * * * *
Cincinnati-Hamilton, Ohio:              12/23/2011  Attainment.
Butler County.....................
Clermont County...................
Hamilton County...................
Warren County.....................
 
                              * * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
  otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.

* * * * *
[FR Doc. 2011-32818 Filed 12-22-11; 8:45 am]
BILLING CODE 6560-50-P


