Air Quality Implementation Plans; Kentucky; Attainment Plan for the Kentucky Portion of the Huntington-Ashland 1997 Annual PM2.5, 21663-21670 [2012-8561]
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Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations
reference of St. Petersburg Automated
Flight Service Station from the
descriptor. This action enhances the
safety and management of Instrument
Flight Rules (IFR) operations for
standard instrument approach
procedures at the airport.
DATES: Effective 0901 UTC, May 31,
2012. The Director of the Federal
Register approves this incorporation by
reference action under title 1, Code of
Federal Regulations, part 51, subject to
the annual revision of FAA Order
7400.9 and publication of conforming
amendments.
FOR FURTHER INFORMATION CONTACT: John
Fornito, Operations Support Group,
Eastern Service Center, Federal Aviation
Administration, P.O. Box 20636,
Atlanta, Georgia 30320; telephone (404)
305–6364.
SUPPLEMENTARY INFORMATION:
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History
The FAA received notice from the
National Aeronautical Navigation
Services (NANS) that St. Petersburg
Automated Flight Service Station has
closed and its reference should be
updated in the descriptor of Cape
Canaveral Skid Strip, Cocoa Beach, FL.
Also, the geographic coordinates for the
airport need correcting to coincide with
the FAAs aeronautical database.
Class D airspace designations are
published in Paragraphs 5000, of FAA
Order 7400.9V dated August 9, 2011,
and effective September 15, 2011, which
is incorporated by reference in 14 CFR
part 71.1. The Class D airspace
designations listed in this document
will be published subsequently in the
Order.
The Rule
This amendment to Title 14, Code of
Federal Regulations (14 CFR) part 71
amends Class D airspace at Cocoa
Beach, FL. The geographic coordinates
of the Cape Canaveral Skid Strip are
corrected to coincide with the FAAs
aeronautical database and St. Petersburg
Automated Flight Service Station will
be removed from the descriptor.
Accordingly, since this is an
administrative change, and does not
involve a change in the dimensions or
operating requirements of that airspace,
notice and public procedures under 5
U.S.C. 553 (b) are unnecessary.
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current, is non-controversial and
unlikely to result in adverse or negative
comments. It, therefore, (1) is not a
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‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and
(3) does not warrant preparation of a
Regulatory Evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified that this rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Subpart I, Section
40103. Under that section, the FAA is
charged with prescribing regulations to
assign the use of airspace necessary to
ensure the safety of aircraft and the
efficient use of airspace. This regulation
is within the scope of that authority as
it establishes and amends controlled
airspace at Cape Canaveral Skid Strip,
Cocoa Beach FL.
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(g); 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.9V, Airspace
Designations and Reporting Points,
dated August 9, 2011, and effective
September 15, 2011, is amended as
follows:
■
Paragraph 5000
Class D airspace.
*
*
*
*
*
ASO FL D Cocoa Beach, FL [Amended]
Cape Canaveral Skid Strip, FL
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21663
(Lat. 28°28′04″ N., long. 80°34′01″ W.)
That airspace extending upward from the
surface to and including 2,500 feet MSL
within a 4.4-mile radius of the Cape
Canaveral Skid Strip. This airspace lies
within the confines of R–2932 and is
effective on a random basis. The effective
days and times are continuously available
from Miami Automated Flight Service
Station.
Issued in College Park, Georgia, on March
30, 2012.
Barry A . Knight,
Manager, Operations Support Group, Eastern
Service Center, Air Traffic Organization.
[FR Doc. 2012–8558 Filed 4–10–12; 8:45 am]
BILLING CODE 4910–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2010–0255; FRL–9657–4]
Air Quality Implementation Plans;
Kentucky; Attainment Plan for the
Kentucky Portion of the HuntingtonAshland 1997 Annual PM2.5
Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is taking final action to
approve a revision to the Kentucky state
implementation plan (SIP) submitted by
the Commonwealth of Kentucky,
through the Kentucky Energy and
Environment Cabinet, Division for Air
Quality (DAQ), to EPA on December 3,
2008, for the purpose of providing for
attainment of the 1997 fine particulate
matter (PM2.5) national ambient air
quality standards (NAAQS) in the
Kentucky portion of the HuntingtonAshland, West Virginia-Kentucky-Ohio
PM2.5 nonattainment area (hereafter
referred to as the ‘‘Huntington-Ashland
Area’’ or ‘‘Area’’). The HuntingtonAshland Area is comprised of Boyd
County and a portion of Lawrence
County in Kentucky; Cabell and Wayne
Counties and a portion of Mason County
in West Virginia; and Lawrence and
Scioto Counties and portions of Adams
and Gallia Counties in Ohio. The
Kentucky plan at issue in this action
(hereafter referred to as the ‘‘PM2.5
attainment plan’’) pertains only to the
Kentucky portion of the HuntingtonAshland Area. As proposed on January
30, 2012, EPA is approving Kentucky’s
PM2.5 attainment plan, which includes
an attainment demonstration;
reasonably available control technology
(RACT) and reasonably available control
measures (RACM); reasonable further
SUMMARY:
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progress (RFP); base-year and
attainment-year emissions inventories;
contingency measures; and, for
transportation conformity purposes, an
insignificance determination for direct
PM2.5 and nitrogen oxides (NOX) for the
mobile source contribution to ambient
PM2.5 levels for the Commonwealth’s
portion of the Huntington-Ashland
Area. This action is being taken in
accordance with the Clean Air Act (CAA
or Act) and the ‘‘Clean Air Fine Particle
Implementation Rule,’’ hereafter
referred to as the ‘‘PM2.5 Implementation
Rule,’’ published on April 25, 2007.
EPA is also responding to adverse
comments received on the proposed
approval of Kentucky’s PM2.5 attainment
plan.
DATES: This rule will be effective May
11, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2010–0255. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Joel
Huey, Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, Region 4,
U.S. Environmental Protection Agency,
61 Forsyth Street SW., Atlanta, Georgia
30303–8960. The telephone number is
(404) 562–9104. Mr. Huey can also be
reached via electronic mail at huey.
joel@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking?
II. What is the background for EPA’s action?
III. What is EPA’s response to comments?
IV. Final Action
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V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is approving a SIP revision,
submitted through the DAQ to EPA on
December 3, 2008, for the purpose of
demonstrating attainment of the 1997
Annual PM2.5 NAAQS for the Kentucky
portion of the Huntington-Ashland
Area. Specifically, EPA is approving
Kentucky’s PM2.5 attainment plan,
which includes an attainment
demonstration; an analysis of RACM/
RACT; a RFP plan; base-year and
attainment-year emissions inventories;
contingency measures; and an
insignificance determination for mobile
direct PM2.5 and NOX emissions for
transportation conformity purposes for
Kentucky’s portion of the HuntingtonAshland Area.
EPA has determined that Kentucky’s
PM2.5 attainment plan for the 1997
Annual PM2.5 NAAQS for its portion of
the Huntington-Ashland Area meets
applicable requirements of the CAA and
the PM2.5 Implementation Rule. More
detail on EPA’s rationale for this
approval can be found in EPA’s January
30, 2012, proposed rulemaking for this
action (see 75 FR 4510). Section III of
this rulemaking responds to the adverse
comments received on EPA’s January
30, 2012, proposal.
II. What is the background for EPA’s
action?
On April 25, 2007, EPA published the
PM2.5 Implementation Rule for the 1997
PM2.5 NAAQS (72 FR 20586). This rule
describes the CAA framework and
requirements for developing SIPs to
achieve attainment in areas designated
nonattainment for the 1997 PM2.5
NAAQS. Such attainment plans must
include a demonstration that a
nonattainment area will meet the
applicable NAAQS within the
timeframe provided in the statute. For
the 1997 PM2.5 NAAQS, an attainment
demonstration must show that a
nonattainment area will attain the
standards as expeditiously as
practicable, but within five years of
designation (i.e., by an attainment date
of no later than April 5, 2010, based on
air quality data for 2007 through 2009).
As mentioned above, Kentucky
provided the Commonwealth’s SIP
revision with the attainment plan (the
subject of this rulemaking) for the
Kentucky portion of the HuntingtonAshland Area on December 3, 2008.
On September 7, 2011, EPA published
a final rulemaking with a determination
that the Huntington-Ashland Area has
attained the 1997 Annual PM2.5
NAAQS. See 76 FR 55542. That
determination was based on the most
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recent three years of complete, qualityassured, quality controlled and certified
ambient air monitoring data showing
that the Area has met the 1997 Annual
PM2.5 NAAQS. EPA also determined, in
the September 7, 2011, rulemaking, and
in accordance with CAA 179(c), that the
Huntington-Ashland Area had attained
the 1997 Annual PM2.5 NAAQS by its
applicable attainment date of April 5,
2010.
As discussed in the September 7,
2011, rulemaking, EPA’s determination
of attainment 1 suspended the obligation
for the State to meet planning SIP
requirements for the Area for so long as
the Area continues to attain the 1997
Annual PM2.5 NAAQS. See 40 CFR
51.1004(c). The state must still submit
required emissions inventories
consistent with appropriate timelines.
The suspended planning SIP
submission obligations include the
attainment demonstration (including in
this case the mobile source
insignificance determination submitted
to satisfy transportation conformity
requirements), associated RACM/RACT,
RFP and the associated contingency
measures. Despite the suspension of the
aforementioned requirements for the
Huntington-Ashland Area for the 1997
Annual PM2.5 NAAQS, Kentucky has
requested that EPA take action on its
planning SIP for this Area in part
because the SIP submittal includes the
insignificance determination. Further,
in September 2011, EPA agreed in a
Consent Decree to take action on these
submissions.
EPA notes that on December 22, 2011,
EPA published a proposal to approve
the State of Ohio’s request to
redesignate to attainment the Ohio
portion of the Huntington-Ashland
Area. 76 FR 79593. EPA has also
received requests from Kentucky and
the State of West Virginia to redesignate
their respective portions of the
Huntington-Ashland Area but has not
yet proposed action on those
submissions.
Monitoring data thus far available, but
not yet certified, in the Air Quality
System (AQS) database for 2011 show
that this Area continues to meet the
1997 Annual PM2.5 NAAQS at this time.
As shown in the table below, ambient
PM2.5 levels in the Huntington-Ashland
Area have declined steadily since
1 The determination of attainment is not a
redesignation of the Area from nonattainment to
attainment and is not an indication that the Area
will continue to maintain the standard for which
the determination is made. It is merely a
determination that the Area attained the standard
for a particular three year period and also by the
deadline. Please see EPA’s September 7, 2011,
rulemaking for more detail on the effects of a
determination of attainment.
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Kentucky submitted its PM2.5
attainment plan in 2008.
ANNUAL AVERAGE DESIGN VALUE CONCENTRATIONS IN THE HUNTINGTON-ASHLAND AREA
Site name
County
Design values (average of three consecutive annual
average concentrations) (μg/m3)
Site No.
2008
Huntington ................................
Ashland Primary (FIVCO) .........
Ironton DOT ..............................
Cabell, WV ................................
Boyd, KY ...................................
Lawrence, OH ...........................
54–011–0006
21–019–0017
39–087–0012
2009
15.2
13.4
13.4
14.3
12.4
12.2
2010
13.1
11.4
12.2
2011 *
12.1
10.9
11.4
* Monitoring data for 2011 are available but not yet certified in the AQS database.
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EPA understands that the
Commonwealth chose not to withdraw
the attainment plan SIP revision for the
Huntington-Ashland Area because it
includes a mobile insignificance
determination for direct PM2.5 and NOX
emissions from mobile sources.
Therefore, as mentioned above,
although the SIP planning requirements
for the 1997 Annual PM2.5 NAAQS have
been suspended for the HuntingtonAshland Area, EPA is acting on
Kentucky’s attainment plan because of
the Consent Decree obligation to do so
and because it remains a submittal to
EPA.
On January 30, 2012, EPA proposed to
approve Kentucky’s PM2.5 attainment
plan, which includes an attainment
demonstration; RACT and RACM; RFP;
base-year and attainment-year emissions
inventories; contingency measures; and,
for transportation conformity purposes,
an insignificance determination for
direct PM2.5 and NOX for the mobile
source contribution to ambient PM2.5
levels for the Commonwealth’s portion
of the Huntington-Ashland Area. As
mentioned above, more detail on EPA’s
rationale for this approval can be found
in EPA’s January 30, 2012, proposed
rulemaking for this action. See 77 FR
4510. Section III of this rulemaking
responds to the adverse comments
received on EPA’s January 30, 2012,
proposal.
III. What is EPA’s response to
comments?
On February 29, 2012, EPA received
comments on EPA’s January 30, 2012,
proposal submitted by Robert Ukeiley
on behalf of Sierra Club. In summary,
the Commenter states EPA cannot
approve the Kentucky December 3,
2008, SIP revision because it: (1) Relies
on inaccurate and inadequate emission
reductions in its attainment
demonstration modeling and emissions
inventory, in part because of the status
of the NOX SIP Call, CAIR and the
industrial boiler/heater MACT (40 CFR
part 63, subpart DDDDD); (2) relies on
temporary and unenforceable emission
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reductions from the Big Sandy Power
Plant; (3) has not been evaluated for
reasonably available control measures
for the nonattainment area; and (4)
includes on-road mobile source
emission calculations which fail to
consider 15 percent ethanol in gasoline.
The complete set of comments is
provided in the docket for this
rulemaking. A summary of the specific
comments and EPA’s responses to them
are provided below.
Emission Reductions
Comment 1: The Commenter contends
that it is problematic to ‘‘credit’’
emission reductions associated with the
NOX SIP Call because that is a cap-andtrade program. The Commenter cites to
NRDC v. EPA, 571 F.3d 1245, 1257 (DC
Cir. 2009) for support of the proposition
that, because EPA cannot predict which
sources will reduce emissions, EPA
cannot rely on the NOX SIP Call for
future reductions. The Commenter
makes a similar contention regarding
the Clean Air Interstate Rule (CAIR).
The Commenter states that any source
could decide at any time in the future
to purchase emissions credits and
increase its emissions and impacts to
the Huntington-Ashland Area. The
Commenter adds that emissions banking
can also lead to violations of the
NAAQS and prevents CAIR emission
budgets from being permanent and
enforceable emission limits. The
Commenter concludes by explaining his
opinion that, although DAQ modeled
hypothetical effects of CAIR well
beyond 2011 in its 2018 projected
inventory, it is not even clear that EPA
is fully enforcing CAIR at this point.
Response 1: EPA notes that the
Huntington-Ashland Area attained the
1997 Annual PM2.5 NAAQS by the
applicable attainment date of April 5,
2010, and that the emission control
measures that led to that attainment
were in place at least through that date.
For this PM2.5 attainment plan the
modeled attainment year is 2009. The
year 2018 was modeled by the Visibility
Improvement State and Tribal
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Association of the Southeast (VISTAS)
for the purposes of Kentucky’s Regional
Haze SIP.
EPA disagrees with the Commenter’s
position that emission reductions
occurring within the relevant
nonattainment area cannot be relied
upon for the purpose of attainment
demonstrations if they are associated
with the emissions trading programs
established in the NOX SIP Call and
CAIR. The case cited by the Commenter
NRDC v. EPA, 571 F.3d 1245 (D.C. Cir.
2009), does not support the
Commenter’s position and is entirely
consistent with EPA’s position here.
That case addressed EPA’s
determination that the nonattainment
RACT requirement was satisfied by the
NOX SIP Call trading program. The
court emphasized that reductions
outside the nonattainment area do not
satisfy the RACT requirement and thus
held that because EPA had not shown
the trading program would result in
sufficient reductions in a nonattainment
area, its determination that the program
satisfied RACT was not supported.2 Id.
at 1256–58. The court did not hold, as
the Commenter suggests, that emissions
trading programs must be ignored when
evaluating nonattainment area
requirements.
There is simply no support for the
Commenter’s argument that attainment
modeling demonstrations must ignore
all emission reductions achieved by the
NOX SIP Call and CAIR simply because
the mechanism used to achieve the
reductions is an emissions trading
program. As a general matter, these
programs cap and permanently reduce
the total emissions allowed by sources
subject to the programs. Any purchase
of allowances and increase in emissions
2 The court specifically elected not to vacate the
RACT provision and left open the possibility that
EPA may be able to reinstate the provision for
particular nonattainment areas if, upon conducting
a technical analysis, it finds the NOX SIP Call
results in greater emissions reductions in a
nonattainment area than would be achieved if
RACT-level controls were installed in that area. Id.
at 1258.
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by one source covered by the program
necessitates a corresponding sale of
allowances and reduction in emissions
by another covered source. Given the
regional nature of particulate matter, the
corresponding emission reduction will
have an air quality benefit that will
compensate, at least in part, for the
impact of any emission increase. Where
an area can show that it will attain the
standard with the reductions from
enforceable trading programs, as done
here,3 the area may take credit for the
reductions from that program.
The Commenter’s contention that EPA
cannot rely on trading programs that
allow banking is also not on point. The
comment is not relevant in this context
where the trading programs in question
were in place through the attainment
deadline and the Area did attain by that
deadline. The fact that the HuntingtonAshland Area attained the PM2.5
standard by the April 2010 attainment
date with these trading programs in
place belies the argument that banking
of allowances might cause the Area to
fail to attain by its attainment date.
Moreover, there is no support for the
Commenter’s contention, based on the
flawed premise that allowance banking
somehow renders those programs’
emission reduction requirements
impermanent or unenforceable, that
EPA must ignore reductions associated
with any trading program that allows
banking. In general, banking provides
economic incentives for early
reductions in emissions and encourages
sources to install controls earlier than
required for compliance with future
caps on emissions. The fact that
reductions may occur more quickly than
required (freeing up allowances that
may then be banked) does not, in any
way, undermine the permanence or
enforceability of the requirements in the
underlying rule.
In sum, contrary to petitioner’s
contention, the decision of D.C. Circuit
in NRDC v. EPA does not establish that
emission reductions from cap and trade
programs, or emission reductions from
cap and trade programs that allow
banking, may not be relied upon for
attainment modeling demonstrations.
As discussed in EPA’s proposal notice,
DAQ utilized appropriate emissions
inventory and modeling guidance to
make this demonstration, which is
consistent with the Area’s current status
as attaining the standard. For these
reasons, EPA disagrees that the
Commenter has identified a basis on
3 Although CAIR was remanded to EPA in 2008,
it remained in force and enforceable through the
April 5, 2010, attainment date.
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which EPA should disapprove
Kentucky’s attainment plan.
With regard to CAIR, EPA published
this rule on May 12, 2005, to address the
interstate transport requirements of the
CAA. See 76 FR 70093. As originally
promulgated, CAIR requires significant
reductions in emissions of sulfur
dioxide (SO2) and NOX to limit the
interstate transport of these pollutants.
In 2008, however, the D.C. Circuit
remanded CAIR back to EPA. North
Carolina v. EPA, 550 F.3d 1176. The
Court found CAIR to be inconsistent
with the requirements of the CAA,
North Carolina v. EPA, 531 F.3d 896
(D.C. Cir. 2008), but ultimately
remanded the rule to EPA without
vacatur because it found that ‘‘allowing
CAIR to remain in effect until it is
replaced by a rule consistent with [the
court’s] opinion would at least
temporarily preserve the environmental
values covered by CAIR.’’ North
Carolina v. EPA, 550 F.3d at 1178. CAIR
thus remained in place following the
remand and was in place and
enforceable through the April 5, 2010,
attainment date.
In response to the court’s decision,
EPA has issued a new rule to address
interstate transport of NOX and SO2 in
the eastern United States (i.e., the
Transport Rule, also known as the
Cross-State Air Pollution Rule). See 76
FR 48208, August 8, 2011. In the
Transport Rule, EPA finalized
regulatory changes to sunset (i.e.,
discontinue) CAIR and the CAIR FIPs
for control periods in 2012 and beyond.
See 76 FR 48322.
On December 30, 2012, the D.C.
Circuit issued an order addressing the
status of the Transport Rule and CAIR
in response to motions filed by
numerous parties seeking a stay of the
Transport Rule pending judicial review.
In that order, the D.C. Circuit stayed the
Transport Rule pending the court’s
resolution of the petitions for review of
that rule in EME Homer Generation, L.P.
v. EPA (No. 11–1302 and consolidated
cases). The court also indicated that
EPA is expected to continue to
administer CAIR in the interim until the
court rules on the petitions for review
of the Transport Rule.
EPA does not believe that the
circumstances set forth above make it
inappropriate, in any way, to finalize its
proposed approval of the HuntingtonAshland attainment plan. While the
data that shows the Area attained the
1997 Annual PM2.5 NAAQS by the April
2010 attainment deadline is impacted
by CAIR, which is in place only
temporarily, EPA’s analysis for the
Transport Rule demonstrates that the
Area would be able to attain the NAAQS
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even in the absence of CAIR. See
Appendix B to the Air Quality Modeling
Final Rule Technical Support Document
for the Cross-State Air Pollution Rule.
Moreover, although the court has stayed
the implementation of the Transport
Rule at this time, EPA believes that the
rule has a strong legal basis. To the
extent that the current status of CAIR
and the Transport Rule affect any of the
criteria for approval of this SIP revision,
EPA believes that the ongoing
implementation and enforcement of
CAIR during the period of the stay,
coupled with the promulgation of the
Transport Rule, provide adequate
assurance of these components. EPA
again notes that this action approves an
attainment demonstration that the Area
will attain in 2010, which the Area did.
As of 2010, CAIR was an enforceable
control measure applicable to the Area.
Any issues of the effect of the ongoing
litigation surrounding the Transport
Rule which will replace CAIR will need
to be addressed by the Area in any plan
demonstrating maintenance of the PM2.5
standard into the future, which is not at
issue in this attainment demonstration.
Comment 2: The Commenter contends
that EPA cannot approve the Kentucky
submittal because DAQ included,
among its controls, a hazardous air
pollutant rule found at 40 CFR part 63,
subpart DDDDD, that was vacated in
June 2007. More specifically, the
Commenter suggests that EPA cannot
rely on a claim that emission reductions
attributed to a vacated rule will be an
‘‘insignificant fraction’’ of total
emissions.
Response 2: As noted by the
Commenter, nonattainment plans must
include ‘‘a comprehensive, accurate,
current inventory of actual emissions
from all sources of the relevant
pollutant or pollutants * * * ’’ See, e.g.,
CAA section 172(c)(3). As a point of
clarification, this is the inventory EPA
is approving for the purposes of CAA
section 172(c)(3). Kentucky selected
2002 as the base year for the emissions
inventory in accordance with 40 CFR
51.1008(b). The 2002 emissions
inventory was based on data developed
by VISTAS contractors and submitted
by the states to the 2002 National
Emissions Inventory. Several iterations
of the 2002 inventories were developed
for the different emission source
categories resulting from revisions and
updates to the data. This resulted in the
use of version G2 of the updated 2002
emissions inventory, which does not
include the boiler MACT reductions.
EPA also notes that DAQ not only
acknowledges that the final 2009
inventory and modeling demonstration
include emissions reductions
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attributable to the vacated rule, but also
provides a reasonable demonstration for
why such inclusion does not impact the
results of the modeling. Following
detailed analysis and presentation of
calculations, DAQ summarizes that the
emissions sensitivity results for the
Boyd County, Kentucky, monitor
indicate that the SO2 and primary PM2.5
emissions assumed under the vacated
boiler MACT would result in a total
increase in the ambient PM2.5
concentration of 0.0009 micrograms per
cubic meter (mg/m3). DAQ reasonably
concluded that this level of impact
would not change the conclusion that
the Huntington-Ashland Area would
attain the 1997 Annual PM2.5 NAAQS
by its applicable attainment date of
April 5, 2010. As EPA indicated earlier
in this rulemaking, EPA determined that
the Huntington-Ashland Area attained
the standard by April 5, 2010. For these
reasons, EPA disagrees that the
Commenter has identified a basis on
which EPA should disapprove
Kentucky’s attainment plan.
Big Sandy Power Plant
Comment 3a: The Commenter asserts
that the Big Sandy Power Plant in
Lawrence County, Kentucky, is the
largest single source of PM2.5 precursor
emissions in the Huntington-Ashland
Area and raises several issues associated
with Kentucky’s treatment of the plant’s
emissions. First, the Commenter
contends that DAQ’s attainment year
modeling relies on artificially low
emissions from the Big Sandy Power
Plant because, the Commenter alleges,
Kentucky modeled attainment during
2008, which the Commenter states was
the ‘‘largest economic recession in
recent times.’’ To support its contention,
the Commenter identifies heat input
data and SO2 and NOX emissions data
for Big Sandy’s Unit 1 and Unit 2 for the
years 2007 through 2010. The
Commenter concludes by saying that
EPA must require Kentucky’s SIP to
include enforceable limits for both Big
Sandy units, restricting emissions to the
lowest levels achieved during the
attainment modeling years, 2007–2011.
Response 3a: As an initial point of
clarification, Kentucky modeled
attainment during 2009, not 2008 as
stated by the Commenter. See Chapter 6
of the attainment demonstration
narrative. Additionally, as shown in
EPA’s January 30, 2012, proposal notice,
all 2009 predicted (modeled) annual
PM2.5 design values for the monitors of
the Huntington-Ashland Area were
higher than the values actually
measured at those sites in 2009. Further,
the emissions assumed for the Big
Sandy Power Plant were projections
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based upon DAQ’s knowledge of the
facility’s future plans when the
modeling was performed, not actual
emissions that occurred in 2008. Based
on actual ambient data, EPA has already
determined that the Area attained the
1997 Annual PM2.5 standard by its April
5, 2010, attainment date. The 2008
economic downturn was irrelevant to,
and in fact occurred after, the modeling
results were produced. Finally, EPA
finds that the modeling conducted for
the 2009 attainment year used the
VISTAS Best & Final emissions
inventory. See PM2.5 attainment plan
submittal, Appendix F (‘‘DRAFT
Documentation of the Base G2 and Best
& Final 2002 Base Year, 2009 and 2018
Emission Inventories for VISTAS’’),
page 3. This inventory shows Big Sandy
Unit 1 having neither selective catalytic
reduction (SCR) nor a scrubber in 2009,
and Unit 2 having SCR since 2003 but
no scrubber in 2009. See PM2.5
attainment plan submittal, Appendix I
(‘‘EGU CONTROLS FOR COAL AND
OIL/GAS UNITS FOR THE BEST &
FINAL INVENTORY’’) of Appendix F,
page 260. This is consistent with what
is shown for these units on EPA’s Clean
Air Market Division’s Web site. For
these reasons, EPA has determined that
the Commenter has not provided a basis
on which to disapprove the revision
with respect to the above-described
modeling issues.
With regard to the Commenter’s
statements about emission limits, the
Big Sandy facility has numerous
emission limitations for relevant
pollutants. In addition, the facility was
included in the October 2007 federal
Consent Decree resolving an
enforcement matter between EPA and
American Electric Power Company
which operates the Big Sandy facility.
See https://www.epa.gov/compliance/
resources/cases/civil/caa/
americanelectricpower1007.html (last
visited 3/15/12) for additional
information. The facility is also subject
to a number of other CAA programs
including but not limited to the regional
haze program. As part of Kentucky’s
regional haze SIP, on which EPA
recently took final action, the facility
will be installing ammonia injection
controls on Unit 1 and flue gas
desulfurization on Unit 2.4 Through
these and other requirements, the
facility is subject to enforceable
emission limits. For these reasons, EPA
disagrees that the Commenter has
identified a basis on which EPA should
disapprove Kentucky’s attainment plan.
4 Final action was signed by the Region 4
Administrator on March 13, 2012.
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Comment 3b: The Commenter states
that DAQ’s attainment demonstration
modeling lists emission controls at the
Big Sandy Power Plant inaccurately.
The Commenter contends that DAQ
made adjustments to its Integrated
Planning Model (IPM) results for the
2009 and 2018 electric generating unit
(EGU) inventories to account for various
control measures and that this renders
DAQ’s modeling flawed for the
attainment year of 2009. The
Commenter concludes that EPA should
require DAQ to include in the Kentucky
SIP an enforceable schedule for
installation of a SCR and scrubber at Big
Sandy.
Response 3b: As noted in the response
above, the modeling presented by
Kentucky used the correct assumptions
about emission controls at Big Sandy in
2009. The 2002 emissions inventory was
based on data that was developed by the
VISTAS contractors and submitted by
the states to the 2002 National
Emissions Inventory. As required by
section 172(c)(3), and as discussed in
the modeling documentation submitted
by Kentucky, the 2002 base year
inventory is an inventory of actual
emissions in the Area. For the projected
2009 attainment year inventory, VISTAS
relied primarily on the IPM to project
future power generation and to calculate
the impact of future emission control
programs as of October 1, 2007. The
State and local agencies were then asked
to identify any updates needed to better
reflect current information on when and
where future controls would occur
based on the best available data from
state rules, enforcement agreements,
compliance plans, permits and other
sources. See PM2.5 attainment plan
submittal, Appendix F (‘‘DRAFT
Documentation of the Base G2 and Best
& Final 2002 Base Year, 2009 and 2018
Emission Inventories for VISTAS’’).
Kentucky indicated that Big Sandy Unit
1 was not expected to have a scrubber
or SCR control operational in 2009 (IPM
had projected these controls would be
in use by Big Sandy Unit 1 in 2009). In
February 2008, VISTAS used this
updated information in completing the
Best & Final inventory, which was used
in the modeling relied upon by
Kentucky.
Further, as explained earlier, the
facility is subject to several CAA
programs involving the installation of
controls and/or specific emission limits
for relevant pollutants. The Area has
demonstrated attainment of the PM2.5
NAAQS already and, considering future
controls and limits, EPA disagrees that
the Commenter has identified a basis on
which EPA should disapprove
Kentucky’s attainment plan.
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Reasonably Available Control Measures
Comment 4a: The Commenter raises
several issues regarding the HuntingtonAshland Area’s RACM/RACT analysis.
First, the Commenter states that DAQ
did not conduct a RACM/RACT analysis
for this Area, but rather, another nearby
area, the bi-state Louisville Area
(Kentucky and Indiana).
Response 4a: Kentucky’s December 3,
2008, SIP revision included attainment
plans for all three of Kentucky’s
nonattainment areas for the 1997
Annual PM2.5 NAAQS: Louisville,
Kentucky-Indiana; Cincinnati-Hamilton,
Ohio-Kentucky-Indiana; and
Huntington-Ashland, West VirginiaKentucky-Ohio. Although DAQ
summarizes, in chapter 7 of the
December 3, 2008 SIP revision, a
detailed air quality analysis contracted
for the Louisville Area, the overall
RACM and RACT discussion is
intended for all three of the identified
PM2.5 nonattainment areas.
EPA interprets RACT for PM2.5 as
linked to attainment needs of an area. If
an area is attaining the PM2.5 NAAQS,
EPA deems the RACT requirement to be
satisfied. Therefore, under EPA’s
interpretation of the RACT requirement,
as it applies to PM2.5, Kentucky has
satisfied the requirement.
In accordance with 40 CFR section
51.1004(c), EPA’s September 7, 2011,
determination that the HuntingtonAshland Area has attained the 1997
Annual PM2.5 NAAQS suspended the
requirement for the Area to submit an
attainment demonstration and
associated RACM, including RACT,
related to the 1997 Annual PM2.5
NAAQS. EPA has noted that certain
language in the preamble of the PM2.5
Implementation Rule contradicts the
regulatory text in 40 CFR 51.1004(c). On
May 22, 2008, EPA issued a
memorandum ‘‘to eliminate any
confusion that could result from this
erroneous statement.’’ Memorandum
from William T. Harnett, Director, Air
Quality Policy Division to Regional Air
Division Directors, ‘‘PM2.5 Clean Data
Policy Clarification.’’ This
memorandum states:
‘‘Section 51.1004(c) provides that:
‘Upon a determination by EPA that an
area designated nonattainment for the
PM2.5 NAAQS has attained the standard,
the requirements for such area to submit
attainment demonstrations and
associated reasonably available control
measures, reasonable further progress
plans, contingency measures, and other
planning SIPs related to attainment of
the PM2.5 NAAQS shall be suspended.
* * *’
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‘‘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 only required insofar
as it is necessary to advance attainment.
See also section 51.1010(b). As a result,
when an area is attaining the standard,
the suspension of the RACM
requirement pursuant to 51.1004(c)
necessarily includes the suspension of
the RACT requirement.’’
EPA has already determined that the
Huntington-Ashland Area attained the
1997 Annual PM2.5 NAAQS by its April
2010 attainment date based on controls
that were in force at least through that
date. In addition, as explained above,
modeling done for the Cross-State Air
Pollution Rule demonstrates that the
Area would attain in the absence of
CAIR. For these reasons, EPA disagrees
that the Commenter has identified a
basis on which EPA should disapprove
Kentucky’s attainment plan.
Comment 4b: The Commenter appears
to disagree with EPA’s interpretation of
40 CFR 51.1010 and contends that
measures must be adopted which are
necessary to demonstrate attainment as
expeditiously as practicable.
Response 4b: Section 51.1010(b) of
the PM2.5 Implementation Rule provides
that ‘‘[p]otential measures that are
reasonably available considering
technical and economic feasibility must
be adopted as RACM if, considered
collectively, they would advance the
attainment date by one year or more.’’
In order to advance the attainment date
by at least one year, the state would first
have to know their projected attainment
date. As stated in EPA’s January 30,
2012, proposed rulemaking, Kentucky
participated in a modeling project of the
Association for Southeastern Integrated
Planning and VISTAS. Modeling
projections were provided in January
2008. While showing the Area would
attain by no later than five years from
designation (i.e., by no later than April
5, 2010), there was not time for the State
to develop measures that could possibly
advance the attainment date by one
year. This would have been particularly
true for any new control requirements,
which would have required a legislative
rulemaking process that can take a year
or more. Further, as stated above,
because the Huntington-Ashland Area is
now attaining the PM2.5 standard,
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Kentucky has satisfied the RACT
requirement without need for further
measures. See Memorandum from
William T. Harnett cited above. In
addition, as explained earlier, Kentucky
did provide a RACM/RACT analysis
that applied for the Huntington-Ashland
Area. For these reasons, EPA disagrees
that the Commenter has identified a
basis on which EPA should disapprove
Kentucky’s attainment plan.
Comment 4c: The Commenter opines
that EPA will not be able to redesignate
the Huntington-Ashland nonattainment
area until it conducts a RACM/RACT
analysis, citing Wall v. EPA, 265 F.3d
426, 442 (6th Cir. 2001).
Response 4c: This action does not
propose to redesignate the HuntingtonAshland Area to attainment. However,
EPA disagrees with the Commenter’s
assertion that EPA will not be able to
redesignate the Huntington-Ashland
Area until a RACM/RACT analysis is
conducted. The September 7, 2011,
determination that the HuntingtonAshland Area attained the 1997 Annual
PM2.5 NAAQS suspends the obligation
to meet attainment planning
requirements, including the RACM/
RACT requirements so long as the Area
continues to attain the 1997 Annual
PM2.5 NAAQS. See 40 CFR 51.1004(c).
EPA disagrees with the Commenter’s
invocation, in the context of this
rulemaking, of the ruling in Wall v.
EPA. The Wall court addressed only the
issue of adoption of RACT for ozone
nonattainment areas under Part D
subpart 2 of the Clean Air Act. Thus that
case addressed a distinct set of statutory
provisions for a different RACT
requirement applicable only to ozone
nonattainment areas. The Wall RACT
ruling is therefore not applicable or
pertinent to the PM2.5 RACT provision
here. For these reasons, EPA disagrees
that the Commenter has identified a
basis on which EPA should disapprove
Kentucky’s attainment plan.
On-Road Mobile Source Emissions
Calculations
Comment 5: The Commenter states
that EPA recently decided to allow up
to 15 percent ethanol content in
gasoline (E15), 76 FR 4662 (Jan. 26,
2011), which the Commenter believes
will lead to an increase in NOX and
VOC emissions from many cars and
light duty trucks, particularly those with
pollution control devices not designed
to deal with E15. The Commenter then
contends that there is no indication that
DAQ or EPA accounted for the increase
in NOX and VOC emissions that will
result from use of E15.
Response 5: EPA disagrees with the
Commenter’s suggestion that the
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Ethanol 15 (E15) rulemaking cited to by
the Commenter will result in a
significant increase in NOX and VOC
emissions in the Huntington-Ashland
Area. As a general point of background,
E15 is not mandated by EPA. Rather,
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 (July 25, 2011).
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.
E15 may never be used in Kentucky.
But even if it is, there is no indication
that any potential emission impacts
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would significantly alter DAQ’s
calculation of on-road mobile source
emissions because of the small and
opposite direction of emission impacts,
the limited vehicle fleet which can use
it, and the measures required to avoid
mitigating misfueling. For these reasons,
EPA disagrees that the Commenter has
identified a basis on which EPA should
disapprove Kentucky’s attainment plan.
IV. Final Action
EPA is approving a revision to the
Kentucky SIP submitted to EPA by DAQ
on December 3, 2008, for the purpose of
demonstrating how the Kentucky
portion of the Huntington-Ashland Area
will achieve attainment of the 1997
Annual PM2.5 NAAQS by no later than
April 5, 2010. EPA previously
determined on September 7, 2011, that
the Huntington-Ashland Area attained
the 1997 Annual PM2.5 NAAQS by its
April 2010 attainment date. See 76 FR
55542, September 7, 2011. EPA has also
determined that the Area has since
continued to attain that NAAQS.
Kentucky’s December 3, 2008, SIP
revision includes an attainment
demonstration; RACT and RACM
analyses; RFP; base-year and
attainment-year emissions inventories;
contingency measures; and, for
transportation conformity purposes, an
insignificance determination for direct
PM2.5 and NOX for the mobile source
contribution to ambient PM2.5 levels for
the Commonwealth’s portion of the
Huntington-Ashland Area. After review
and consideration of the relevant
information and data, including the
comments received, EPA has
determined that Kentucky’s December 3,
2008, SIP revision is consistent with the
CAA and EPA’s PM2.5 Implementation
Rule, and as such EPA is approving this
SIP revision.
V. Statutory and Executive Order
Reviews
Under the CAA, 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 that
reason, this action:
• Is 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);
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• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is 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.);
• Does 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);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is 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 Clean Air Act;
and
• Does 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 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).
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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 June 11, 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 in 40 CFR Part 52
PART 52—[AMENDED]
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
■
Dated: March 29, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart S—Kentucky
2. Section 52.920(e) is amended by
adding a new entry at the end of the
table for ‘‘Huntington-Ashland 1997
PM2.5 Attainment Plan’’ to read as
follows:
■
§ 52.920
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS
Name of non-regulatory SIP
provision
*
Huntington-Ashland 1997
PM2.5 Attainment Plan.
Applicable geographic or
nonattainment area
*
*
Boyd County; Portion of
Lawrence County.
[FR Doc. 2012–8561 Filed 4–10–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2011–0086; FRL–9343–3]
Acibenzolar-S-methyl; Pesticide
Tolerances
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes a
tolerance for residues of acibenzolar-Smethyl in or on berry, low growing,
subgroup 13–07G. The Interregional
Research Project No. 4 (IR–4) requested
the tolerance under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
DATES: This regulation is effective April
11, 2012. Objections and requests for
hearings must be received on or before
June 11, 2012, and must be filed in
accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2011–0086. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
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SUMMARY:
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State submittal
date/effective date
*
12/03/2008
EPA approval date
*
4/11/2012 [Insert citation of
publication].
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Sidney Jackson, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
DC 20460–0001; telephone number:
(703) 305–7610; email address:
jackson.sidney@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to those engaged in the
following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
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Explanation
*
*
For the 1997 PM2.5 NAAQS.
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How can I get electronic access to
other related information?
You may access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s e-CFR
site at https://ecfr.gpoaccess.gov/cgi/t/
text/text-idx?&c=ecfr&tpl=/ecfrbrowse/
Title40/40tab_02.tpl. To access the
OCSPP test guidelines referenced in this
document electronically, go to: https://
www.epa.gov/ocspp and select ‘‘Test
Methods and Guidelines.’’
C. How can I file an objection or hearing
request?
Under FFDCA section 408(g), 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
E:\FR\FM\11APR1.SGM
11APR1
Agencies
[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Rules and Regulations]
[Pages 21663-21670]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8561]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2010-0255; FRL-9657-4]
Air Quality Implementation Plans; Kentucky; Attainment Plan for
the Kentucky Portion of the Huntington-Ashland 1997 Annual
PM2.5 Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve a revision to the
Kentucky state implementation plan (SIP) submitted by the Commonwealth
of Kentucky, through the Kentucky Energy and Environment Cabinet,
Division for Air Quality (DAQ), to EPA on December 3, 2008, for the
purpose of providing for attainment of the 1997 fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS) in
the Kentucky portion of the Huntington-Ashland, West Virginia-Kentucky-
Ohio PM2.5 nonattainment area (hereafter referred to as the
``Huntington-Ashland Area'' or ``Area''). The Huntington-Ashland Area
is comprised of Boyd County and a portion of Lawrence County in
Kentucky; Cabell and Wayne Counties and a portion of Mason County in
West Virginia; and Lawrence and Scioto Counties and portions of Adams
and Gallia Counties in Ohio. The Kentucky plan at issue in this action
(hereafter referred to as the ``PM2.5 attainment plan'')
pertains only to the Kentucky portion of the Huntington-Ashland Area.
As proposed on January 30, 2012, EPA is approving Kentucky's
PM2.5 attainment plan, which includes an attainment
demonstration; reasonably available control technology (RACT) and
reasonably available control measures (RACM); reasonable further
[[Page 21664]]
progress (RFP); base-year and attainment-year emissions inventories;
contingency measures; and, for transportation conformity purposes, an
insignificance determination for direct PM2.5 and nitrogen
oxides (NOX) for the mobile source contribution to ambient
PM2.5 levels for the Commonwealth's portion of the
Huntington-Ashland Area. This action is being taken in accordance with
the Clean Air Act (CAA or Act) and the ``Clean Air Fine Particle
Implementation Rule,'' hereafter referred to as the ``PM2.5
Implementation Rule,'' published on April 25, 2007. EPA is also
responding to adverse comments received on the proposed approval of
Kentucky's PM2.5 attainment plan.
DATES: This rule will be effective May 11, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2010-0255. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30 excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Joel Huey, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9104. Mr. Huey can also be reached via electronic mail at
huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking?
II. What is the background for EPA's action?
III. What is EPA's response to comments?
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is approving a SIP revision, submitted through the DAQ to EPA
on December 3, 2008, for the purpose of demonstrating attainment of the
1997 Annual PM2.5 NAAQS for the Kentucky portion of the
Huntington-Ashland Area. Specifically, EPA is approving Kentucky's
PM2.5 attainment plan, which includes an attainment
demonstration; an analysis of RACM/RACT; a RFP plan; base-year and
attainment-year emissions inventories; contingency measures; and an
insignificance determination for mobile direct PM2.5 and
NOX emissions for transportation conformity purposes for
Kentucky's portion of the Huntington-Ashland Area.
EPA has determined that Kentucky's PM2.5 attainment plan
for the 1997 Annual PM2.5 NAAQS for its portion of the
Huntington-Ashland Area meets applicable requirements of the CAA and
the PM2.5 Implementation Rule. More detail on EPA's
rationale for this approval can be found in EPA's January 30, 2012,
proposed rulemaking for this action (see 75 FR 4510). Section III of
this rulemaking responds to the adverse comments received on EPA's
January 30, 2012, proposal.
II. What is the background for EPA's action?
On April 25, 2007, EPA published the PM2.5
Implementation Rule for the 1997 PM2.5 NAAQS (72 FR 20586).
This rule describes the CAA framework and requirements for developing
SIPs to achieve attainment in areas designated nonattainment for the
1997 PM2.5 NAAQS. Such attainment plans must include a
demonstration that a nonattainment area will meet the applicable NAAQS
within the timeframe provided in the statute. For the 1997
PM2.5 NAAQS, an attainment demonstration must show that a
nonattainment area will attain the standards as expeditiously as
practicable, but within five years of designation (i.e., by an
attainment date of no later than April 5, 2010, based on air quality
data for 2007 through 2009). As mentioned above, Kentucky provided the
Commonwealth's SIP revision with the attainment plan (the subject of
this rulemaking) for the Kentucky portion of the Huntington-Ashland
Area on December 3, 2008.
On September 7, 2011, EPA published a final rulemaking with a
determination that the Huntington-Ashland Area has attained the 1997
Annual PM2.5 NAAQS. See 76 FR 55542. That determination was
based on the most recent three years of complete, quality-assured,
quality controlled and certified ambient air monitoring data showing
that the Area has met the 1997 Annual PM2.5 NAAQS. EPA also
determined, in the September 7, 2011, rulemaking, and in accordance
with CAA 179(c), that the Huntington-Ashland Area had attained the 1997
Annual PM2.5 NAAQS by its applicable attainment date of
April 5, 2010.
As discussed in the September 7, 2011, rulemaking, EPA's
determination of attainment \1\ suspended the obligation for the State
to meet planning SIP requirements for the Area for so long as the Area
continues to attain the 1997 Annual PM2.5 NAAQS. See 40 CFR
51.1004(c). The state must still submit required emissions inventories
consistent with appropriate timelines. The suspended planning SIP
submission obligations include the attainment demonstration (including
in this case the mobile source insignificance determination submitted
to satisfy transportation conformity requirements), associated RACM/
RACT, RFP and the associated contingency measures. Despite the
suspension of the aforementioned requirements for the Huntington-
Ashland Area for the 1997 Annual PM2.5 NAAQS, Kentucky has
requested that EPA take action on its planning SIP for this Area in
part because the SIP submittal includes the insignificance
determination. Further, in September 2011, EPA agreed in a Consent
Decree to take action on these submissions.
---------------------------------------------------------------------------
\1\ The determination of attainment is not a redesignation of
the Area from nonattainment to attainment and is not an indication
that the Area will continue to maintain the standard for which the
determination is made. It is merely a determination that the Area
attained the standard for a particular three year period and also by
the deadline. Please see EPA's September 7, 2011, rulemaking for
more detail on the effects of a determination of attainment.
---------------------------------------------------------------------------
EPA notes that on December 22, 2011, EPA published a proposal to
approve the State of Ohio's request to redesignate to attainment the
Ohio portion of the Huntington-Ashland Area. 76 FR 79593. EPA has also
received requests from Kentucky and the State of West Virginia to
redesignate their respective portions of the Huntington-Ashland Area
but has not yet proposed action on those submissions.
Monitoring data thus far available, but not yet certified, in the
Air Quality System (AQS) database for 2011 show that this Area
continues to meet the 1997 Annual PM2.5 NAAQS at this time.
As shown in the table below, ambient PM2.5 levels in the
Huntington-Ashland Area have declined steadily since
[[Page 21665]]
Kentucky submitted its PM2.5 attainment plan in 2008.
Annual Average Design Value Concentrations in the Huntington-Ashland Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Design values (average of three consecutive annual
average concentrations) ([mu]g/m\3\)
Site name County Site No. ---------------------------------------------------
2008 2009 2010 2011 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Huntington..................................... Cabell, WV....................... 54-011-0006 15.2 14.3 13.1 12.1
Ashland Primary (FIVCO)........................ Boyd, KY......................... 21-019-0017 13.4 12.4 11.4 10.9
Ironton DOT.................................... Lawrence, OH..................... 39-087-0012 13.4 12.2 12.2 11.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Monitoring data for 2011 are available but not yet certified in the AQS database.
EPA understands that the Commonwealth chose not to withdraw the
attainment plan SIP revision for the Huntington-Ashland Area because it
includes a mobile insignificance determination for direct
PM2.5 and NOX emissions from mobile sources.
Therefore, as mentioned above, although the SIP planning requirements
for the 1997 Annual PM2.5 NAAQS have been suspended for the
Huntington-Ashland Area, EPA is acting on Kentucky's attainment plan
because of the Consent Decree obligation to do so and because it
remains a submittal to EPA.
On January 30, 2012, EPA proposed to approve Kentucky's
PM2.5 attainment plan, which includes an attainment
demonstration; RACT and RACM; RFP; base-year and attainment-year
emissions inventories; contingency measures; and, for transportation
conformity purposes, an insignificance determination for direct
PM2.5 and NOX for the mobile source contribution
to ambient PM2.5 levels for the Commonwealth's portion of
the Huntington-Ashland Area. As mentioned above, more detail on EPA's
rationale for this approval can be found in EPA's January 30, 2012,
proposed rulemaking for this action. See 77 FR 4510. Section III of
this rulemaking responds to the adverse comments received on EPA's
January 30, 2012, proposal.
III. What is EPA's response to comments?
On February 29, 2012, EPA received comments on EPA's January 30,
2012, proposal submitted by Robert Ukeiley on behalf of Sierra Club. In
summary, the Commenter states EPA cannot approve the Kentucky December
3, 2008, SIP revision because it: (1) Relies on inaccurate and
inadequate emission reductions in its attainment demonstration modeling
and emissions inventory, in part because of the status of the
NOX SIP Call, CAIR and the industrial boiler/heater MACT (40
CFR part 63, subpart DDDDD); (2) relies on temporary and unenforceable
emission reductions from the Big Sandy Power Plant; (3) has not been
evaluated for reasonably available control measures for the
nonattainment area; and (4) includes on-road mobile source emission
calculations which fail to consider 15 percent ethanol in gasoline. The
complete set of comments is provided in the docket for this rulemaking.
A summary of the specific comments and EPA's responses to them are
provided below.
Emission Reductions
Comment 1: The Commenter contends that it is problematic to
``credit'' emission reductions associated with the NOX SIP
Call because that is a cap-and-trade program. The Commenter cites to
NRDC v. EPA, 571 F.3d 1245, 1257 (DC Cir. 2009) for support of the
proposition that, because EPA cannot predict which sources will reduce
emissions, EPA cannot rely on the NOX SIP Call for future
reductions. The Commenter makes a similar contention regarding the
Clean Air Interstate Rule (CAIR).
The Commenter states that any source could decide at any time in
the future to purchase emissions credits and increase its emissions and
impacts to the Huntington-Ashland Area. The Commenter adds that
emissions banking can also lead to violations of the NAAQS and prevents
CAIR emission budgets from being permanent and enforceable emission
limits. The Commenter concludes by explaining his opinion that,
although DAQ modeled hypothetical effects of CAIR well beyond 2011 in
its 2018 projected inventory, it is not even clear that EPA is fully
enforcing CAIR at this point.
Response 1: EPA notes that the Huntington-Ashland Area attained the
1997 Annual PM2.5 NAAQS by the applicable attainment date of
April 5, 2010, and that the emission control measures that led to that
attainment were in place at least through that date. For this
PM2.5 attainment plan the modeled attainment year is 2009.
The year 2018 was modeled by the Visibility Improvement State and
Tribal Association of the Southeast (VISTAS) for the purposes of
Kentucky's Regional Haze SIP.
EPA disagrees with the Commenter's position that emission
reductions occurring within the relevant nonattainment area cannot be
relied upon for the purpose of attainment demonstrations if they are
associated with the emissions trading programs established in the
NOX SIP Call and CAIR. The case cited by the Commenter NRDC
v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), does not support the
Commenter's position and is entirely consistent with EPA's position
here. That case addressed EPA's determination that the nonattainment
RACT requirement was satisfied by the NOX SIP Call trading
program. The court emphasized that reductions outside the nonattainment
area do not satisfy the RACT requirement and thus held that because EPA
had not shown the trading program would result in sufficient reductions
in a nonattainment area, its determination that the program satisfied
RACT was not supported.\2\ Id. at 1256-58. The court did not hold, as
the Commenter suggests, that emissions trading programs must be ignored
when evaluating nonattainment area requirements.
---------------------------------------------------------------------------
\2\ The court specifically elected not to vacate the RACT
provision and left open the possibility that EPA may be able to
reinstate the provision for particular nonattainment areas if, upon
conducting a technical analysis, it finds the NOX SIP
Call results in greater emissions reductions in a nonattainment area
than would be achieved if RACT-level controls were installed in that
area. Id. at 1258.
---------------------------------------------------------------------------
There is simply no support for the Commenter's argument that
attainment modeling demonstrations must ignore all emission reductions
achieved by the NOX SIP Call and CAIR simply because the
mechanism used to achieve the reductions is an emissions trading
program. As a general matter, these programs cap and permanently reduce
the total emissions allowed by sources subject to the programs. Any
purchase of allowances and increase in emissions
[[Page 21666]]
by one source covered by the program necessitates a corresponding sale
of allowances and reduction in emissions by another covered source.
Given the regional nature of particulate matter, the corresponding
emission reduction will have an air quality benefit that will
compensate, at least in part, for the impact of any emission increase.
Where an area can show that it will attain the standard with the
reductions from enforceable trading programs, as done here,\3\ the area
may take credit for the reductions from that program.
---------------------------------------------------------------------------
\3\ Although CAIR was remanded to EPA in 2008, it remained in
force and enforceable through the April 5, 2010, attainment date.
---------------------------------------------------------------------------
The Commenter's contention that EPA cannot rely on trading programs
that allow banking is also not on point. The comment is not relevant in
this context where the trading programs in question were in place
through the attainment deadline and the Area did attain by that
deadline. The fact that the Huntington-Ashland Area attained the
PM2.5 standard by the April 2010 attainment date with these
trading programs in place belies the argument that banking of
allowances might cause the Area to fail to attain by its attainment
date. Moreover, there is no support for the Commenter's contention,
based on the flawed premise that allowance banking somehow renders
those programs' emission reduction requirements impermanent or
unenforceable, that EPA must ignore reductions associated with any
trading program that allows banking. In general, banking provides
economic incentives for early reductions in emissions and encourages
sources to install controls earlier than required for compliance with
future caps on emissions. The fact that reductions may occur more
quickly than required (freeing up allowances that may then be banked)
does not, in any way, undermine the permanence or enforceability of the
requirements in the underlying rule.
In sum, contrary to petitioner's contention, the decision of D.C.
Circuit in NRDC v. EPA does not establish that emission reductions from
cap and trade programs, or emission reductions from cap and trade
programs that allow banking, may not be relied upon for attainment
modeling demonstrations. As discussed in EPA's proposal notice, DAQ
utilized appropriate emissions inventory and modeling guidance to make
this demonstration, which is consistent with the Area's current status
as attaining the standard. For these reasons, EPA disagrees that the
Commenter has identified a basis on which EPA should disapprove
Kentucky's attainment plan.
With regard to CAIR, EPA published this rule on May 12, 2005, to
address the interstate transport requirements of the CAA. See 76 FR
70093. As originally promulgated, CAIR requires significant reductions
in emissions of sulfur dioxide (SO2) and NOX to
limit the interstate transport of these pollutants. In 2008, however,
the D.C. Circuit remanded CAIR back to EPA. North Carolina v. EPA, 550
F.3d 1176. The Court found CAIR to be inconsistent with the
requirements of the CAA, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), but ultimately remanded the rule to EPA without vacatur because
it found that ``allowing CAIR to remain in effect until it is replaced
by a rule consistent with [the court's] opinion would at least
temporarily preserve the environmental values covered by CAIR.'' North
Carolina v. EPA, 550 F.3d at 1178. CAIR thus remained in place
following the remand and was in place and enforceable through the April
5, 2010, attainment date.
In response to the court's decision, EPA has issued a new rule to
address interstate transport of NOX and SO2 in
the eastern United States (i.e., the Transport Rule, also known as the
Cross-State Air Pollution Rule). See 76 FR 48208, August 8, 2011. In
the Transport Rule, EPA finalized regulatory changes to sunset (i.e.,
discontinue) CAIR and the CAIR FIPs for control periods in 2012 and
beyond. See 76 FR 48322.
On December 30, 2012, the D.C. Circuit issued an order addressing
the status of the Transport Rule and CAIR in response to motions filed
by numerous parties seeking a stay of the Transport Rule pending
judicial review. In that order, the D.C. Circuit stayed the Transport
Rule pending the court's resolution of the petitions for review of that
rule in EME Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated
cases). The court also indicated that EPA is expected to continue to
administer CAIR in the interim until the court rules on the petitions
for review of the Transport Rule.
EPA does not believe that the circumstances set forth above make it
inappropriate, in any way, to finalize its proposed approval of the
Huntington-Ashland attainment plan. While the data that shows the Area
attained the 1997 Annual PM2.5 NAAQS by the April 2010
attainment deadline is impacted by CAIR, which is in place only
temporarily, EPA's analysis for the Transport Rule demonstrates that
the Area would be able to attain the NAAQS even in the absence of CAIR.
See Appendix B to the Air Quality Modeling Final Rule Technical Support
Document for the Cross-State Air Pollution Rule. Moreover, although the
court has stayed the implementation of the Transport Rule at this time,
EPA believes that the rule has a strong legal basis. To the extent that
the current status of CAIR and the Transport Rule affect any of the
criteria for approval of this SIP revision, EPA believes that the
ongoing implementation and enforcement of CAIR during the period of the
stay, coupled with the promulgation of the Transport Rule, provide
adequate assurance of these components. EPA again notes that this
action approves an attainment demonstration that the Area will attain
in 2010, which the Area did. As of 2010, CAIR was an enforceable
control measure applicable to the Area. Any issues of the effect of the
ongoing litigation surrounding the Transport Rule which will replace
CAIR will need to be addressed by the Area in any plan demonstrating
maintenance of the PM2.5 standard into the future, which is
not at issue in this attainment demonstration.
Comment 2: The Commenter contends that EPA cannot approve the
Kentucky submittal because DAQ included, among its controls, a
hazardous air pollutant rule found at 40 CFR part 63, subpart DDDDD,
that was vacated in June 2007. More specifically, the Commenter
suggests that EPA cannot rely on a claim that emission reductions
attributed to a vacated rule will be an ``insignificant fraction'' of
total emissions.
Response 2: As noted by the Commenter, nonattainment plans must
include ``a comprehensive, accurate, current inventory of actual
emissions from all sources of the relevant pollutant or pollutants * *
* '' See, e.g., CAA section 172(c)(3). As a point of clarification,
this is the inventory EPA is approving for the purposes of CAA section
172(c)(3). Kentucky selected 2002 as the base year for the emissions
inventory in accordance with 40 CFR 51.1008(b). The 2002 emissions
inventory was based on data developed by VISTAS contractors and
submitted by the states to the 2002 National Emissions Inventory.
Several iterations of the 2002 inventories were developed for the
different emission source categories resulting from revisions and
updates to the data. This resulted in the use of version G2 of the
updated 2002 emissions inventory, which does not include the boiler
MACT reductions.
EPA also notes that DAQ not only acknowledges that the final 2009
inventory and modeling demonstration include emissions reductions
[[Page 21667]]
attributable to the vacated rule, but also provides a reasonable
demonstration for why such inclusion does not impact the results of the
modeling. Following detailed analysis and presentation of calculations,
DAQ summarizes that the emissions sensitivity results for the Boyd
County, Kentucky, monitor indicate that the SO2 and primary
PM2.5 emissions assumed under the vacated boiler MACT would
result in a total increase in the ambient PM2.5
concentration of 0.0009 micrograms per cubic meter ([mu]g/m\3\). DAQ
reasonably concluded that this level of impact would not change the
conclusion that the Huntington-Ashland Area would attain the 1997
Annual PM2.5 NAAQS by its applicable attainment date of
April 5, 2010. As EPA indicated earlier in this rulemaking, EPA
determined that the Huntington-Ashland Area attained the standard by
April 5, 2010. For these reasons, EPA disagrees that the Commenter has
identified a basis on which EPA should disapprove Kentucky's attainment
plan.
Big Sandy Power Plant
Comment 3a: The Commenter asserts that the Big Sandy Power Plant in
Lawrence County, Kentucky, is the largest single source of
PM2.5 precursor emissions in the Huntington-Ashland Area and
raises several issues associated with Kentucky's treatment of the
plant's emissions. First, the Commenter contends that DAQ's attainment
year modeling relies on artificially low emissions from the Big Sandy
Power Plant because, the Commenter alleges, Kentucky modeled attainment
during 2008, which the Commenter states was the ``largest economic
recession in recent times.'' To support its contention, the Commenter
identifies heat input data and SO2 and NOX
emissions data for Big Sandy's Unit 1 and Unit 2 for the years 2007
through 2010. The Commenter concludes by saying that EPA must require
Kentucky's SIP to include enforceable limits for both Big Sandy units,
restricting emissions to the lowest levels achieved during the
attainment modeling years, 2007-2011.
Response 3a: As an initial point of clarification, Kentucky modeled
attainment during 2009, not 2008 as stated by the Commenter. See
Chapter 6 of the attainment demonstration narrative. Additionally, as
shown in EPA's January 30, 2012, proposal notice, all 2009 predicted
(modeled) annual PM2.5 design values for the monitors of the
Huntington-Ashland Area were higher than the values actually measured
at those sites in 2009. Further, the emissions assumed for the Big
Sandy Power Plant were projections based upon DAQ's knowledge of the
facility's future plans when the modeling was performed, not actual
emissions that occurred in 2008. Based on actual ambient data, EPA has
already determined that the Area attained the 1997 Annual
PM2.5 standard by its April 5, 2010, attainment date. The
2008 economic downturn was irrelevant to, and in fact occurred after,
the modeling results were produced. Finally, EPA finds that the
modeling conducted for the 2009 attainment year used the VISTAS Best &
Final emissions inventory. See PM2.5 attainment plan
submittal, Appendix F (``DRAFT Documentation of the Base G2 and Best &
Final 2002 Base Year, 2009 and 2018 Emission Inventories for VISTAS''),
page 3. This inventory shows Big Sandy Unit 1 having neither selective
catalytic reduction (SCR) nor a scrubber in 2009, and Unit 2 having SCR
since 2003 but no scrubber in 2009. See PM2.5 attainment
plan submittal, Appendix I (``EGU CONTROLS FOR COAL AND OIL/GAS UNITS
FOR THE BEST & FINAL INVENTORY'') of Appendix F, page 260. This is
consistent with what is shown for these units on EPA's Clean Air Market
Division's Web site. For these reasons, EPA has determined that the
Commenter has not provided a basis on which to disapprove the revision
with respect to the above-described modeling issues.
With regard to the Commenter's statements about emission limits,
the Big Sandy facility has numerous emission limitations for relevant
pollutants. In addition, the facility was included in the October 2007
federal Consent Decree resolving an enforcement matter between EPA and
American Electric Power Company which operates the Big Sandy facility.
See https://www.epa.gov/compliance/resources/cases/civil/caa/americanelectricpower1007.html (last visited 3/15/12) for additional
information. The facility is also subject to a number of other CAA
programs including but not limited to the regional haze program. As
part of Kentucky's regional haze SIP, on which EPA recently took final
action, the facility will be installing ammonia injection controls on
Unit 1 and flue gas desulfurization on Unit 2.\4\ Through these and
other requirements, the facility is subject to enforceable emission
limits. For these reasons, EPA disagrees that the Commenter has
identified a basis on which EPA should disapprove Kentucky's attainment
plan.
---------------------------------------------------------------------------
\4\ Final action was signed by the Region 4 Administrator on
March 13, 2012.
---------------------------------------------------------------------------
Comment 3b: The Commenter states that DAQ's attainment
demonstration modeling lists emission controls at the Big Sandy Power
Plant inaccurately. The Commenter contends that DAQ made adjustments to
its Integrated Planning Model (IPM) results for the 2009 and 2018
electric generating unit (EGU) inventories to account for various
control measures and that this renders DAQ's modeling flawed for the
attainment year of 2009. The Commenter concludes that EPA should
require DAQ to include in the Kentucky SIP an enforceable schedule for
installation of a SCR and scrubber at Big Sandy.
Response 3b: As noted in the response above, the modeling presented
by Kentucky used the correct assumptions about emission controls at Big
Sandy in 2009. The 2002 emissions inventory was based on data that was
developed by the VISTAS contractors and submitted by the states to the
2002 National Emissions Inventory. As required by section 172(c)(3),
and as discussed in the modeling documentation submitted by Kentucky,
the 2002 base year inventory is an inventory of actual emissions in the
Area. For the projected 2009 attainment year inventory, VISTAS relied
primarily on the IPM to project future power generation and to
calculate the impact of future emission control programs as of October
1, 2007. The State and local agencies were then asked to identify any
updates needed to better reflect current information on when and where
future controls would occur based on the best available data from state
rules, enforcement agreements, compliance plans, permits and other
sources. See PM2.5 attainment plan submittal, Appendix F
(``DRAFT Documentation of the Base G2 and Best & Final 2002 Base Year,
2009 and 2018 Emission Inventories for VISTAS''). Kentucky indicated
that Big Sandy Unit 1 was not expected to have a scrubber or SCR
control operational in 2009 (IPM had projected these controls would be
in use by Big Sandy Unit 1 in 2009). In February 2008, VISTAS used this
updated information in completing the Best & Final inventory, which was
used in the modeling relied upon by Kentucky.
Further, as explained earlier, the facility is subject to several
CAA programs involving the installation of controls and/or specific
emission limits for relevant pollutants. The Area has demonstrated
attainment of the PM2.5 NAAQS already and, considering
future controls and limits, EPA disagrees that the Commenter has
identified a basis on which EPA should disapprove Kentucky's attainment
plan.
[[Page 21668]]
Reasonably Available Control Measures
Comment 4a: The Commenter raises several issues regarding the
Huntington-Ashland Area's RACM/RACT analysis. First, the Commenter
states that DAQ did not conduct a RACM/RACT analysis for this Area, but
rather, another nearby area, the bi-state Louisville Area (Kentucky and
Indiana).
Response 4a: Kentucky's December 3, 2008, SIP revision included
attainment plans for all three of Kentucky's nonattainment areas for
the 1997 Annual PM2.5 NAAQS: Louisville, Kentucky-Indiana;
Cincinnati-Hamilton, Ohio-Kentucky-Indiana; and Huntington-Ashland,
West Virginia-Kentucky-Ohio. Although DAQ summarizes, in chapter 7 of
the December 3, 2008 SIP revision, a detailed air quality analysis
contracted for the Louisville Area, the overall RACM and RACT
discussion is intended for all three of the identified PM2.5
nonattainment areas.
EPA interprets RACT for PM2.5 as linked to attainment
needs of an area. If an area is attaining the PM2.5 NAAQS,
EPA deems the RACT requirement to be satisfied. Therefore, under EPA's
interpretation of the RACT requirement, as it applies to
PM2.5, Kentucky has satisfied the requirement.
In accordance with 40 CFR section 51.1004(c), EPA's September 7,
2011, determination that the Huntington-Ashland Area has attained the
1997 Annual PM2.5 NAAQS suspended the requirement for the
Area to submit an attainment demonstration and associated RACM,
including RACT, related to the 1997 Annual PM2.5 NAAQS. EPA
has noted that certain language in the preamble of the PM2.5
Implementation Rule contradicts the regulatory text in 40 CFR
51.1004(c). On May 22, 2008, EPA issued a memorandum ``to eliminate any
confusion that could result from this erroneous statement.'' Memorandum
from William T. Harnett, Director, Air Quality Policy Division to
Regional Air Division Directors, ``PM2.5 Clean Data Policy
Clarification.'' This memorandum states:
``Section 51.1004(c) provides that: `Upon a determination by EPA
that an area designated nonattainment for the PM2.5 NAAQS
has attained the standard, the requirements for such area to submit
attainment demonstrations and associated reasonably available control
measures, reasonable further progress plans, contingency measures, and
other planning SIPs related to attainment of the PM2.5 NAAQS
shall be suspended. * * *'
``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 only required insofar as it is necessary to advance
attainment. See also section 51.1010(b). As a result, when an area is
attaining the standard, the suspension of the RACM requirement pursuant
to 51.1004(c) necessarily includes the suspension of the RACT
requirement.''
EPA has already determined that the Huntington-Ashland Area
attained the 1997 Annual PM2.5 NAAQS by its April 2010
attainment date based on controls that were in force at least through
that date. In addition, as explained above, modeling done for the
Cross-State Air Pollution Rule demonstrates that the Area would attain
in the absence of CAIR. For these reasons, EPA disagrees that the
Commenter has identified a basis on which EPA should disapprove
Kentucky's attainment plan.
Comment 4b: The Commenter appears to disagree with EPA's
interpretation of 40 CFR 51.1010 and contends that measures must be
adopted which are necessary to demonstrate attainment as expeditiously
as practicable.
Response 4b: Section 51.1010(b) of the PM2.5
Implementation Rule provides that ``[p]otential measures that are
reasonably available considering technical and economic feasibility
must be adopted as RACM if, considered collectively, they would advance
the attainment date by one year or more.'' In order to advance the
attainment date by at least one year, the state would first have to
know their projected attainment date. As stated in EPA's January 30,
2012, proposed rulemaking, Kentucky participated in a modeling project
of the Association for Southeastern Integrated Planning and VISTAS.
Modeling projections were provided in January 2008. While showing the
Area would attain by no later than five years from designation (i.e.,
by no later than April 5, 2010), there was not time for the State to
develop measures that could possibly advance the attainment date by one
year. This would have been particularly true for any new control
requirements, which would have required a legislative rulemaking
process that can take a year or more. Further, as stated above, because
the Huntington-Ashland Area is now attaining the PM2.5
standard, Kentucky has satisfied the RACT requirement without need for
further measures. See Memorandum from William T. Harnett cited above.
In addition, as explained earlier, Kentucky did provide a RACM/RACT
analysis that applied for the Huntington-Ashland Area. For these
reasons, EPA disagrees that the Commenter has identified a basis on
which EPA should disapprove Kentucky's attainment plan.
Comment 4c: The Commenter opines that EPA will not be able to
redesignate the Huntington-Ashland nonattainment area until it conducts
a RACM/RACT analysis, citing Wall v. EPA, 265 F.3d 426, 442 (6th Cir.
2001).
Response 4c: This action does not propose to redesignate the
Huntington-Ashland Area to attainment. However, EPA disagrees with the
Commenter's assertion that EPA will not be able to redesignate the
Huntington-Ashland Area until a RACM/RACT analysis is conducted. The
September 7, 2011, determination that the Huntington-Ashland Area
attained the 1997 Annual PM2.5 NAAQS suspends the obligation
to meet attainment planning requirements, including the RACM/RACT
requirements so long as the Area continues to attain the 1997 Annual
PM2.5 NAAQS. See 40 CFR 51.1004(c). EPA disagrees with the
Commenter's invocation, in the context of this rulemaking, of the
ruling in Wall v. EPA. The Wall court addressed only the issue of
adoption of RACT for ozone nonattainment areas under Part D subpart 2
of the Clean Air Act. Thus that case addressed a distinct set of
statutory provisions for a different RACT requirement applicable only
to ozone nonattainment areas. The Wall RACT ruling is therefore not
applicable or pertinent to the PM2.5 RACT provision here.
For these reasons, EPA disagrees that the Commenter has identified a
basis on which EPA should disapprove Kentucky's attainment plan.
On-Road Mobile Source Emissions Calculations
Comment 5: The Commenter states that EPA recently decided to allow
up to 15 percent ethanol content in gasoline (E15), 76 FR 4662 (Jan.
26, 2011), which the Commenter believes will lead to an increase in
NOX and VOC emissions from many cars and light duty trucks,
particularly those with pollution control devices not designed to deal
with E15. The Commenter then contends that there is no indication that
DAQ or EPA accounted for the increase in NOX and VOC
emissions that will result from use of E15.
Response 5: EPA disagrees with the Commenter's suggestion that the
[[Page 21669]]
Ethanol 15 (E15) rulemaking cited to by the Commenter will result in a
significant increase in NOX and VOC emissions in the
Huntington-Ashland Area. As a general point of background, E15 is not
mandated by EPA. Rather, 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 (July 25, 2011).
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.
E15 may never be used in Kentucky. But even if it is, there is no
indication that any potential emission impacts would significantly
alter DAQ's calculation of on-road mobile source emissions because of
the small and opposite direction of emission impacts, the limited
vehicle fleet which can use it, and the measures required to avoid
mitigating misfueling. For these reasons, EPA disagrees that the
Commenter has identified a basis on which EPA should disapprove
Kentucky's attainment plan.
IV. Final Action
EPA is approving a revision to the Kentucky SIP submitted to EPA by
DAQ on December 3, 2008, for the purpose of demonstrating how the
Kentucky portion of the Huntington-Ashland Area will achieve attainment
of the 1997 Annual PM2.5 NAAQS by no later than April 5,
2010. EPA previously determined on September 7, 2011, that the
Huntington-Ashland Area attained the 1997 Annual PM2.5 NAAQS
by its April 2010 attainment date. See 76 FR 55542, September 7, 2011.
EPA has also determined that the Area has since continued to attain
that NAAQS. Kentucky's December 3, 2008, SIP revision includes an
attainment demonstration; RACT and RACM analyses; RFP; base-year and
attainment-year emissions inventories; contingency measures; and, for
transportation conformity purposes, an insignificance determination for
direct PM2.5 and NOX for the mobile source
contribution to ambient PM2.5 levels for the Commonwealth's
portion of the Huntington-Ashland Area. After review and consideration
of the relevant information and data, including the comments received,
EPA has determined that Kentucky's December 3, 2008, SIP revision is
consistent with the CAA and EPA's PM2.5 Implementation Rule,
and as such EPA is approving this SIP revision.
V. Statutory and Executive Order Reviews
Under the CAA, 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 that reason, this action:
Is 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);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is 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.);
Does 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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is 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 Clean Air Act; and
Does 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 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).
[[Page 21670]]
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 June 11, 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 in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: March 29, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is 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 S--Kentucky
0
2. Section 52.920(e) is amended by adding a new entry at the end of the
table for ``Huntington-Ashland 1997 PM2.5 Attainment Plan''
to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Kentucky Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable State submittal
Name of non-regulatory SIP geographic or date/effective EPA approval date Explanation
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Huntington-Ashland 1997 PM2.5 Boyd County; 12/03/2008 4/11/2012 [Insert For the 1997 PM2.5
Attainment Plan. Portion of citation of NAAQS.
Lawrence County. publication].
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[FR Doc. 2012-8561 Filed 4-10-12; 8:45 am]
BILLING CODE 6560-50-P