[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76883-76897]
[FR Doc No: 2012-31276]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

ADDRESSES: EPA has established a docket for this action under Docket
Identification EPA-R05-OAR-2011-0468. All documents in these dockets
are listed on the  www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the U.S.
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone Carolyn Persoon at
(312) 353-8290 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Carolyn Persoon, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:

I. What is the background for the actions?
II. What actions is EPA taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. Final action
VI. Statutory and executive order reviews

I. What is the background for the actions?

    On May 4, 2011 the Ohio EPA submitted its request to redesignate
the Ohio portion of the Huntington-Ashland nonattainment area to
attainment for the 1997 annual PM2.5 NAAQS, and for EPA
approval of the state's SIP revision containing an emissions inventory
and a maintenance plan for the area. On December 22, 2011 (76 FR
79593), EPA proposed approval of Ohio's redesignation request,
emissions inventories and plan for maintaining the 1997 annual
PM2.5 NAAQS. EPA also proposed approval of Ohio's
determination that on-road emissions of PM2.5 and
NOX are insignificant contributors to PM2.5
concentrations in the area. Additional background for today's action is
set forth in EPA's December 22, 2011, proposed rulemaking.
    In the proposed redesignation of the Huntington-Ashland area, EPA
proposed to determine that the emission reduction requirements that
contributed to attainment of the 1997 annual PM2.5 standard
in the nonattainment area could be considered permanent and
enforceable. At the time of proposal, EPA noted that the Clean Air
Interstate Rule (CAIR), which had been in place through 2011, had been
replaced by the recently promulgated Cross-State Air Pollution Rule
(CSAPR). 76 FR 48208, August 8, 2011. CSAPR included regulatory changes
to sunset (i.e., discontinue) CAIR and the CAIR Federal Implementation
Plans (FIPs) for control periods in 2012 and beyond. See 76 FR 48322.
Although Ohio's redesignation request and maintenance plan relied on
reductions associated with CAIR, EPA proposed to approve the request
based in part on the fact that CSAPR achieved ``similar or greater
reductions in the relevant areas in 2012 and beyond.'' 76 FR 79598. On
December 30, 2011, eight days after the proposed redesignation, the
U.S. Court of Appeals for the D.C. Circuit (referred to as D.C. Circuit
or court hereafter) issued an order addressing the status of CSAPR and
CAIR in response to motions filed by numerous parties seeking a stay of
CSAPR pending judicial review. In that order, the court stayed CSAPR
pending resolution of the petitions for review of that rule in EME
Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The
court also indicated that EPA was expected to continue to administer
CAIR in the interim until judicial review of CSAPR was completed.
    On August 21, 2012, the D.C. Circuit issued a decision in EME Homer
Generation, L.P. v. EPA, to vacate and remand CSAPR and ordered EPA to
continue administering CAIR pending the promulgation of a valid
replacement. That judgment is not yet final as the mandate has not been
issued by the court and on October 5, 2012, EPA filed a petition for
rehearing en banc asking the full court to reconsider that decision.
EPA has determined that it is appropriate to move forward with final
approval of this redesignation action, even though the emission
reductions associated with CSAPR that EPA referenced in the proposal
notice may not be relied upon at this time given the rule's legal
status. As discussed in greater detail in this notice, the submission
received from the state relied on reductions achieved from CAIR and
demonstrated that the Huntington-Ashland area achieved attainment due
in part to emission reductions required by CAIR. The D.C. Circuit's
order that EPA continue administering CAIR until a valid replacement
rule is developed ensures that the reductions that led to attainment
are sufficiently permanent and enforceable to meet the requirements of
CAA section 107(d)(3)(E)(iii).

II. What actions is EPA taking?

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

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

    Because the area continues to attain and meets all other
requirements for redesignation under CAA section 107(d)(3)(E), EPA is
approving the request from the state of Ohio to change the legal
designation of the Ohio portion of the Huntington-Ashland area from
nonattainment to attainment for the 1997 annual PM2.5
NAAQS.\4\
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    \4\ EPA in this notice is not addressing the requests of
Kentucky and West Virginia for redesignation of those states'
portions of the Huntington-Ashland area.
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    EPA is taking several actions related to Ohio's PM2.5
redesignation request, as discussed below.
    EPA is approving, pursuant to CAA section 175A, Ohio's 1997 annual
PM2.5 maintenance plan for the Huntington-Ashland area as a
revision to the Ohio SIP (such approval being one of the CAA criteria
for redesignation to attainment status). The maintenance plan is
designed to keep the Huntington-Ashland area in attainment of the 1997
annual PM2.5 NAAQS through 2022.
    EPA is approving, pursuant to CAA section 172(c)(3), both the 2005
and 2008 emission inventories for primary PM2.5,\5\
NOX, and SO2,\6\ documented in Ohio's
PM2.5 redesignation request submittal. These emission
inventories satisfy the requirement in section 172(c)(3) of the CAA for
a comprehensive, current emission inventory.
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    \5\ Fine particulates directly emitted by sources and not formed
in a secondary manner through chemical reactions or other processes
in the atmosphere.
    \6\ NOX and SO2 are precursors for fine
particulates through chemical reactions and other related processes
in the atmosphere.
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    Finally, for transportation conformity purposes EPA is approving
Ohio's determination that on-road emissions of PM2.5 and
NOX are insignificant contributors to PM2.5
concentrations in the area. Further discussion of the basis for these
actions was provided in the proposed rulemaking on December 22, 2011
(76 FR 79593).

III. What is EPA's Response to Comments?

    EPA received two sets of comments on its proposed rulemaking. The
Ohio Utilities Group submitted comments in support of the redesignation
of the Ohio portion of the Huntington-Ashland area, and on behalf of
Sierra Club, Robert Ukeiley submitted adverse comments. A summary of
Sierra Club's comments and EPA's responses are provided below.
    Comment 1a: The Commenter contends that EPA cannot rely on
reductions associated with the NOX SIP Call,\7\ CAIR, and
CSAPR in order to redesignate the Huntington-Ashland area because
reductions from these programs are not permanent and enforceable. The
Commenter points out that EPA noted that the area is impacted by
pollution from electric generating units (EGUs) and that the Ohio
submittal ``credits reductions'' to three rules that reduce
SO2 and NOX emissions from power plants, the
NOX SIP Call, CAIR, and CSAPR.
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    \7\ The Commenter mentions that EPA may not rely on emission
reductions associated with the NOX SIP Call but does not
provide any specific arguments to support this contention.
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    Specifically, the Commenter argues that CAIR reductions are not
permanent and enforceable because EPA stated in the proposal that CAIR
emission reductions only run through 2011. The Commenter also cites
statements by EPA made in the context of other rules indicating that
CAIR is legally deficient, remanded, and therefore temporary, in both
the regional haze proposed rulemakings (76 FR 78194, 78200, December
16, 2011), as well as a redesignation proposal for Cincinnati (76 FR
65458, 65460, October 21, 2011). The Commenter argues that EPA cannot
rely on CAIR because it is a cap-and-trade program. The Commenter cites
to NRDC v. EPA, 571 F.3d 1245, 1257 (D.C. Cir. 2009) for support of the
proposition that, because EPA cannot predict which sources will reduce
emissions, EPA cannot rely on cap-and-trade programs for future
reductions. The Commenter states that any source could decide at any
time in the future to purchase emissions credits and increase its
emissions and impacts to the Huntington-Ashland area. The Commenter
adds that emissions banking can also lead to violations of the NAAQS
and prevents CAIR emission budgets from being permanent and enforceable
emission limits.
    Response 1a: EPA disagrees with Commenter that it must disapprove
Ohio's redesignation request because the submittal relies on CAIR.
First, although Ohio's redesignation request references CAIR and
includes emission reductions associated with CAIR, EPA's modeling
indicates that the area would attain and maintain the 1997
PM2.5 NAAQS even in the absence of CAIR. Second, the EPA
statements cited by the Commenter regarding the status of CAIR were
made prior to the D.C. Circuit's decision to vacate CSAPR and to leave
CAIR in place. Third, EPA disagrees with the Commenter's assertion that
reductions may not be relied upon for redesignation purposes if those
reductions stem from an emissions trading program. Finally, EPA
believes that the area meets all the requirements for redesignation
regardless of the status of CAIR, because the area has other measures,
such as consent decrees on EGUs.
    As an initial matter, EPA notes that the modeling EPA conducted
during the rulemaking for the CSAPR rulemaking demonstrates that the
Huntington-Ashland area would attain and maintain the 1997
PM2.5 NAAQS even without CAIR or a rule to replace CAIR.
Nothing in the EME Homer decision undermines that conclusion or
suggests that the air quality modeling conducted during the rulemaking
was flawed. As such, there

is no basis to conclude that it would be improper to redesignate the
area even in the absence of CAIR. Moreover, the commenter's assertions
regarding the status of CAIR and the extent to which emission
reductions associated with CAIR may be relied upon in redesignations
are flawed for the reasons described below.
    The Commenter points out that EPA made statements that CAIR
reductions were expiring in 2011 (76 FR 79593, December 22, 2011) and
were temporary (76 FR 78194, 78200, December 16, 2011; 76 FR 65458,
65460, October 21, 2011). However, these statements should be viewed in
light of changes in the legal context of CAIR and CSAPR, which occurred
subsequent to those statements and had a significant effect on the
status of CAIR.
    On May 12, 2005, EPA published CAIR, which requires significant
reductions in emissions of SO2 and NOX from
electric generating units to limit the interstate transport of these
pollutants and the ozone and fine particulate matter they form in the
atmosphere. See 76 FR 70093. The D.C. Circuit initially vacated CAIR,
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178
(D.C. Cir. 2008). In response to the court's decision, EPA issued
CSAPR, to address interstate transport of NOX and
SO2 in the eastern United States. See 76 FR 48208 (August 8,
2011). On August 21, 2012, the D.C. Circuit issued a decision to vacate
CSAPR. In that decision, it also ordered EPA to continue administering
CAIR ``pending * * * development of a valid replacement.'' EME Homer
City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012).\8\
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    \8\ The court's judgment is not yet final as the mandate has not
issued and on October 5, 2012, EPA filed a petition asking for
rehearing en banc.
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    The agency's statements cited by the Commenter must be viewed in
context: They were made after CSAPR had been promulgated to sunset and
replace CAIR, and before the D.C. Circuit stayed CSAPR and issued its
decision in EME Homer to vacate the rule. In that decision, the court
ordered EPA to continue implementing CAIR until a valid replacement
rule is promulgated. The decision thus had a significant impact on the
CAIR programs and EPA's evaluation of the status of emission reductions
achieved pursuant to those programs. In light of these unique
circumstances and for the reasons explained below, EPA is finalizing
the redesignation and the related SIP revision for the Huntington-
Ashland area, including Ohio's plan for maintaining attainment of the
PM2.5 standard. The air quality modeling analysis conducted
for CSAPR demonstrates that the Huntington-Ashland area would be able
to attain the PM2.5 standard even in the absence of either
CAIR or CSAPR. See ``Air Quality Modeling Final Rule Technical Support
Document,'' appendix B, B-55 to B-56. This modeling is available in the
docket for this proposed redesignation action. Nothing in the D.C.
Circuit's August 2012 decision disturbs or calls into question that
conclusion or the validity of the air quality analysis on which it is
based.
    In addition, CAIR remains in place and enforceable until
substituted by a ``valid'' replacement rule. Ohio's CAIR provisions can
be found in Ohio Administrative Code Chapter 3745-109. On February 1,
2008, at 73 FR 6034, EPA approved an ``abbreviated SIP'' covering
several of Ohio's CAIR provisions, including CAIR NOX
allocations. On September 25, 2009 (74 FR 48857), EPA approved a full
CAIR SIP for Ohio incorporating all of Ohio's CAIR provisions. These
SIP provisions remain in place and are federally enforceable. And,
because CAIR has been in force since 2005, the monitoring data used to
demonstrate the area's attainment of the 1997 annual PM2.5
NAAQS by the April 2010 attainment deadline were impacted by CAIR. CAIR
reductions began as early as 2007, with full program requirements
beginning in 2009. However, to the extent that Ohio's redesignation
request and maintenance plan rely on CAIR, the recent directive from
the D.C. Circuit in EME Homer ensures that the reductions associated
with CAIR will be permanent and enforceable for the necessary time
period. EPA has been ordered by the court to develop a new rule and the
opinion makes clear that after promulgating that new rule EPA must
provide states an opportunity to draft and submit SIPs to implement
that rule. CAIR thus cannot be replaced until EPA has promulgated a
final rule through a notice-and-comment rulemaking process, states have
had an opportunity to draft and submit SIPs, EPA has reviewed the SIPs
to determine if they can be approved, and EPA has taken action on the
SIPs, including promulgating a FIP if appropriate. These steps alone
will take many years, even with EPA and the states acting
expeditiously. The court's clear instruction to EPA that it must
continue to administer CAIR until a ``valid replacement'' exists
provides an additional backstop; by definition, any rule that replaces
CAIR and meets the court's direction would require upwind states to
have SIPs that eliminate significant contributions to downwind
nonattainment and prevent interference with maintenance in downwind
areas.
    Further, in vacating CSAPR and requiring EPA to continue
administering CAIR, the D.C. Circuit emphasized that the consequences
of vacating CAIR ``might be more severe now in light of the reliance
interests accumulated over the intervening four years.'' EME Homer, 696
F.3d at 38. The accumulated reliance interests include the interests of
states who reasonably assumed they could rely on reductions associated
with CAIR which brought certain nonattainment areas into attainment
with the NAAQS. If EPA were prevented from relying on reductions
associated with CAIR in redesignation actions, states would be forced
to impose additional, redundant reductions on top of those achieved by
CAIR. EPA believes this is precisely the type of irrational result the
court sought to avoid by ordering EPA to continue administering CAIR.
For these reasons also, EPA believes it is appropriate to allow states
to rely on CAIR, and the existing emissions reductions achieved by
CAIR, as sufficiently permanent and enforceable for purposes such as
redesignation. Following promulgation of the replacement rule, EPA will
review SIPs as appropriate to identify whether there are any issues
that need to be addressed.
    EPA also disagrees with the Commenter that emission reductions
occurring within the relevant nonattainment area cannot be relied upon
for the purpose of redesignations if they are associated with the
emissions trading programs established in CAIR. The case cited by the
Commenter, NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), does not
support the Commenter's position and is entirely consistent with EPA's
position here. That case addressed EPA's determination that the
nonattainment Reasonably Available Control Technology (RACT)
requirement was satisfied by the NOX SIP Call trading
program. The court emphasized that reductions outside the nonattainment
area do not satisfy the RACT requirement and thus held that because EPA
had not shown the trading program would result in sufficient reductions
in a nonattainment area, its determination that the program satisfied
RACT was not supported.\9\ Id. at 1256-

58. The court did not hold, as Commenter suggests, that emissions
trading programs must be ignored when evaluating redesignation
requests.
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    \9\ The court specifically elected not to vacate the RACT
provision and left open the possibility that EPA may be able to
reinstate the provision for particular nonattainment areas if, upon
conducting a technical analysis, it finds the NOX SIP
Call results in greater emissions reductions in a nonattainment area
than would be achieved if RACT-level controls were installed in that
area. Id. at 1258.
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    There is simply no support for the Commenter's argument that, in
determining whether to redesignate an area, EPA must ignore all
emission reductions achieved by CAIR simply because the mechanism used
to achieve the reductions is an emissions trading program. As a general
matter, trading programs require total mass emission reductions by
establishing mandatory caps on total emissions to permanently reduce
the total mass emissions allowed by sources subject to the programs,
validated through rigorous continuous emission monitoring and reporting
regimens. The emission caps and associated controls are enforced
through the associated SIP rules or FIPs. Any purchase of allowances
and increase in emissions by one source necessitates a corresponding
sale of allowances and reduction in emissions by another covered
source. Given the regional nature of PM2.5, the
corresponding emission reduction will have an air quality benefit that
will compensate, at least in part, for the impact of any emission
increase. In contrast, emission rate limits serve a different purpose
and do not limit total mass emissions. Total mass emissions can vary
greatly under emission rate programs as demand and production vary from
year to year.
    There is no support for the Commenter's contention that the
presence of allowance banking in a program somehow renders those
programs' emission reduction requirements impermanent or unenforceable,
such that EPA must ignore reductions associated with any trading
program that allows banking. In general, banking provides economic
incentives for early reductions in emissions and encourages sources to
install controls earlier than required for compliance with future caps
on emissions. As Commenter points out, Ohio's submittal states that
``companies installed more controls'' during the time period that CAIR
was being developed and promulgated. The flexibility under a cap and
trade system is not about whether to reduce emissions. Rather, it is
about how to reduce them at the lowest possible cost. The fact that
companies anticipate the economic benefits of installing controls
earlier, and reductions thus may occur more quickly than required
(freeing up allowances that may then be banked and providing earlier
health and environmental benefits to the public) does not, in any way,
undermine the permanence or enforceability of the requirements in the
underlying rule. The bank itself was factored into the CAIR cap levels
that were chosen. The bank allows for a ``glide path'' to final cap
levels (70 FR 25194, May 12, 2005). Further, evaluations have been made
to see whether banking and trading have created emissions ``hot
spots.'' For example, since the beginning of the Acid Rain Program,
there have been no emissions hot spots identified or created as a
result of the program (see ``The Acid Rain Program Experience: Should
We Be Concerned About SO2 Emissions Hotspots?'' at http://epa.gov/airmarkets/resource/acidrain-resource.html).
    Additionally, states and localities may impose stricter limits on
sources to address specific local air quality concerns. These limits
must be met regardless of a source's accumulated allowances.
    In sum, contrary to Commenter's contention, the decision of the
D.C. Circuit in NRDC v. EPA does not establish that emission reductions
from cap-and-trade programs, or emission reductions from cap-and-trade
programs that allow banking, may not be relied upon for redesignations.
For the reasons explained above, EPA disagrees that the Commenter has
identified a basis on which EPA should disapprove Ohio's redesignation
request.
    EPA also notes that CAIR is not the only permanent and enforceable
measure affecting EGU emission reductions in the Huntington-Ashland
area. There have been several consent decrees in the area affecting
EGUs. First, in the Kentucky portion of the Huntington-Ashland Area,
the Big Sandy Power Station was required by a federally enforceable
consent decree \10\ and 2007 settlement agreement to install and
continuously operate selective catalytic reduction (SCR) to reduce
NOX emissions from Unit 2 beginning January 1, 2009. The
plant is also required to install and continuously operate flue gas
desulfurization (FGD) to reduce SO2 emissions from Unit 2
beginning December 31, 2015. Operation of FGD controls has a co-benefit
of reducing direct PM2.5 emissions as well. In the Ohio and
West Virginia portions of the Area, a federally enforceable consent
decree \11\ and 2007 settlement agreement require the General James M.
Gavin Power Plant (Ohio) and Mountaineer Power Plant (West Virginia) to
install and continuously operate SCR and FGD on specified units and the
Philip Sporn Plant (West Virginia) to retire, retrofit, or re-power one
unit. Another consent decree,\12\ to which EPA was not a party,
requires the J.M. Stuart Power Plant (Ohio) to install and continuously
operate SCR on all of its units. To the extent that power plant
emission reductions contributed to attainment in the Huntington-Ashland
Area, these reductions are permanent and enforceable.
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    \10\ Entered with the United States District Court For The
Southern District Of Ohio Eastern Division (United States of America
and State Of New York, et al., v. American Electric Power Service
Corp., et al., No. C2-99-1250 and 1182 (consolidated)).
    \11\ Id.
    \12\ Entered with the United States District Court For The
Southern District Of Ohio, Eastern Division (Sierra Club and Marilyn
Wall v. The Dayton Power and Light Company, Duke Energy Ohio, Inc.,
and Columbus Southern Power Co., Civil Action No. 2: 04-cv-905).
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    Comment 1b: The Commenter claims that ``EPA's proposal indicates
that is relying heavily on CSAPR to justify its redesignation of the
Huntington-Ashland area.'' The Commenter argues that EPA cannot rely on
CSAPR, because it has been stayed,\13\ thus imposing no emission
reductions or emission limits, and therefore cannot be found to impose
permanent and enforceable emission reductions. The Commenter also notes
that EPA's proposal of revisions to CSAPR undermines EPA's ability to
analyze whether reductions required by CSAPR will achieve attainment in
the Huntington-Ashland area. Furthermore, Commenter argues that CSAPR
cannot be relied upon to redesignate the Huntington-Ashland area into
attainment unless the D.C. Circuit affirms the rule. The Commenter also
objects to reliance on CSAPR because CSAPR, as a trading program, does
not impose emission limits on the sources impacting air quality in the
Huntington-Ashland area that are at least as stringent as those
sources' actual 2008 emission rates. Specifically, the Commenter argues
that CSAPR does not result in permanent and enforceable reductions
because individual sources that impact the area can comply with the
rule by either meeting their emission budgets or by obtaining emission
credits from other sources that do not impact the air quality in the
Huntington-Ashland area; and because under CSAPR, sources can bank
emissions.
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    \13\ The rule was stayed as of the time of submission of
comments; it has since been vacated by the D.C. Circuit and
petitions for rehearing en banc are pending.
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    Response 1b: Contrary to Commenter's contention, EPA's

conclusion that the area has met the requirements for redesignation
does not rely on and is not dependent on CSAPR being in place. Ohio's
maintenance plan does not rely on future emission reductions from
CSAPR, and thus EPA's basis for redesignation of the area from
nonattainment to attainment is unaffected by the status of CSAPR.
Instead, Ohio relied on CAIR in its maintenance plan, and as discussed
in EPA's response to comment 1a, such reliance is appropriate in this
context. EPA did not rely on CSAPR to provide a basis for redesignating
the area from nonattainment to attainment. Rather, EPA's statements
about CSAPR in the proposal were made in the context of CAIR's imminent
replacement by CSAPR. The Huntington-Ashland area has attained the 1997
annual PM2.5, and continues to attain the standard as shown
in the monitoring data provided above. The state of Ohio has shown that
the emission reductions that led to the monitored attainment were due
to many permanent and enforceable measures, including federal mobile
vehicle standards, CAIR and consent decrees. At proposal, EPA noted
that CSAPR had been promulgated to replace CAIR but that redesignation
of Huntington-Ashland was still appropriate, because reductions
achieved by CSAPR in this area would be equivalent to or greater than
those achieved by CAIR. Since the proposal, the D.C. Circuit has issued
a decision to vacate CSAPR; thus in this action EPA is evaluating
Ohio's maintenance plan as submitted, including the emission reductions
associated with CAIR. The redesignation of the Ohio portion of the
Huntington-Ashland area meets the requirements under section
107(d)(3)(iii) without any reductions associated with CSAPR.
    Comment 1c: The Commenter states that it is arbitrary for EPA to
use only one year in determining whether permanent and enforceable
emission reductions led to air quality improvements, because cap-and-
trade programs allow for varied emissions year to year. Moreover, the
Commenter states that analyzing the year 2008 poses further problems,
because it marked the beginning of a major economic downturn and EPA
provided no analysis of whether the recession was a factor in the
improvements in air quality.
    Response 1c: EPA's conclusion here is fully supported by the facts
and applicable legal criteria. EPA's longstanding practice and policy
\14\ provides for states to demonstrate permanent and enforceable
emissions reductions by comparing nonattainment area emissions
occurring during the nonattainment period (represented by emissions
during one of the years during the 3-year nonattainment period, in this
case 2005) with emissions in the area during the attainment period
(represented by emissions during one of the three attainment years, in
this case 2008, which is included in the 3-year period, 2007-2009, that
the State used to show attainment with the 1997 annual PM2.5
standard). A determination that an area has attained the 1997 annual
PM2.5 standard is based on an objective review of air
quality data in accordance with 40 CFR 50.13 and Appendix N of part 50,
based on 3 complete, consecutive calendar years of quality-assured air
quality monitoring data. In the State's redesignation request, Ohio
considered data for the 2007-2009 time period to demonstrate
attainment. In EPA's determination of attainment and proposed approval
of the redesignation request, EPA considered data for the 2008-2010
time period, which was the most recent quality-assured, certified data
available. See 76 FR 55542 (September 7, 2011), 76 FR 79593 (December
22, 2011). In this final rulemaking, EPA is also considering the area's
continued attainment based on complete, quality-assured certified data
for 2009-2011. EPA has also considered preliminary data showing the
area has continued to monitor attainment through 2012. Therefore,
selecting 2008 as a representative attainment year, and comparing
emissions for this year to those for a representative year during the
nonattainment period, 2005, is an appropriate and long-established
approach that demonstrates improvements in air quality as a result of
the imposition of emission reductions in the area between the years of
nonattainment and attainment. For example, see recent redesignations
such as Indianapolis PM2.5 annual standard (76 FR 59512),
Lake and Porter 8-hour ozone standard (75 FR 12090), and Northwest
Indiana PM2.5 annual standard (76 FR 59600).
---------------------------------------------------------------------------

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

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

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

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

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

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

    Comment 1d: The Commenter observes that Ohio cites the availability
of cheap natural gas as one of the causes of attainment. The Commenter
asserts that cheap natural gas is not a permanent and enforceable
emissions limit, and states that because EPA has not determined whether
the improvement in air quality was dependent on the presence of cheap
natural gas, EPA must disapprove the redesignation request.
    Response 1d: In determining that the improvement in air quality was
due to permanent and enforceable emissions reductions, EPA did not cite
or rely upon cheap natural gas as a permanent and enforceable limit. In
its proposed rulemaking, EPA identified multiple permanent and
enforceable measures (76 FR 79593), including, but not limited to Tier
2 vehicle standards, heavy-duty gasoline and diesel highway vehicle
standards, nonroad spark-ignition engines and recreational engines
standards, large nonroad diesel engine standards, consent decrees,
CAIR, and the NOX SIP Call. Permanent and enforceable
measures set an enforceable limit, and the emission standard that must
be met is independent of the choice of fuel. Further, as mentioned
above, the large coal-fired electric generating units continued to run
at or near the same amount over the years evaluated.
    Comment 2a: The Commenter claims that ``EPA has failed to conduct
an adequate analysis under CAA section 110(l) on what effect
redesignation will have on the 2006 24-hour PM2.5 NAAQS, the
1-hour NOX NAAQS, the 1-hour SO2 NAAQS and the
1997 and 2008 75 parts per billion ozone NAAQS.'' In subsequent
comments, the Commenter also states, ``EPA has not conducted an
adequate analysis of the effect redesignation will have on other
National Ambient Air Quality Standards''.
    Response 2a: Section 110(l) provides in part: ``the Administrator
shall not approve a revision of a plan if the revision would interfere
with any applicable requirement concerning attainment and reasonable
further progress * * *, or any other applicable requirement of this
chapter.'' As a general matter, EPA is obligated under section 110(l)
to consider whether a revision would ``interfere with'' attainment or
applicable requirements. For example, 70 FR 53, 57 (January 3, 2005);
70 FR 17029, 17033 (April 4, 2005); 70 FR 28429, 28431 (May 18, 2005);
and 70 FR 58119, 58134 (October 5, 2005). In its review, EPA has indeed
considered its obligations under section 110(l). In acting on Ohio's
redesignation request and maintenance plan for the 1997 annual
PM2.5 NAAQS, Ohio did not revise or remove any existing
emissions limit for any NAAQS, nor do they alter any existing control
requirements. Thus, EPA concludes that

the redesignation will not interfere with attainment or maintenance of
any other air quality standard. The Commenter provides no information
in its comment to indicate that redesignation would have any impact on
the area's ability to comply with the 2006 24-hour PM2.5
NAAQS, the 1-hour NO2 NAAQS, the 1-hour SO2 NAAQS
or the 1997 8-hour ozone NAAQS and 2008 75 parts per billion ozone
NAAQS. The redesignation does not relax any existing rules or limits,
nor will it adversely alter the status quo air quality.\17\ In fact,
the maintenance plan submitted by Ohio demonstrates a decline in the
direct PM2.5 and PM2.5 precursor emissions over
the timeframe of the maintenance period. EPA therefore concludes that
there is no basis for concluding that the redesignation might interfere
with attainment of any standard or with satisfaction of any other
requirement, and thus EPA finds that section 110(l) does not prohibit
EPA from approving the redesignation request and the maintenance SIP
revision.
---------------------------------------------------------------------------

    \17\ EPA notes that the Huntington-Ashland Area does not have
violating monitors for the 2006 24-hour PM2.5 NAAQS, the
1-hour NOX NAAQS, or the 1-hour SO2 NAAQS, the
1-hour and 8-hour ozone NAAQS, and that this Area has never been
designated nonattainment for 2006 24-hour PM2.5 NAAQS,
the 1-hour NOX NAAQS, or the 1-hour SO2 NAAQS.
---------------------------------------------------------------------------

    Comment 2b: The Commenter states that the Ohio SIP does not
currently have RACT standards in place for PM2.5, and that
implementation of such standards would have reduced NOX and
SO2, and helped with the 2006 24-hour PM2.5
NAAQS, the 1-hour NOX NAAQS, the 1-hour SO2
NAAQS, and the 1997 and 2008 ozone NAAQS as well as visibility. The
Commenter contends that EPA should demonstrate that the absence of this
alleged co-benefit will not interfere with attainment, reasonable
further progress and any other applicable requirement.''
    Response 2b: EPA disagrees with the Commenter that the Ohio SIP
does not comply with the applicable RACT requirements. EPA has
previously set forth its interpretation of RACT for PM2.5 as
linked to attainment needs of the area. If an area is attaining the
PM2.5 standard, it clearly does not need further measures to
reach attainment. Therefore, under EPA's interpretation of the RACT
requirement, as it applies to PM2.5, Ohio has satisfied the
RACT requirement without need for further measures. EPA's memorandum of
May 22, 2008, clarified and fully explained EPA's view of the
relationship between PM2.5 attainment and RACT requirements.
Memorandum from William T. Harnett, Director, Air Quality Policy
Division to Regional Air Division Directors, entitled,
``PM2.5 Clean Data Policy Clarification.''
    This memorandum explained that 40 CFR 51.1004(c) provides that a
determination that an area has attained the PM2.5 standard
suspends the requirements to submit RACT and Reasonably Achieved
Control Measures (RACM) requirements.
    40 CFR 51.1010 provides in part: ``For each PM2.5
nonattainment area, the state shall submit with the attainment
demonstration a SIP revision demonstrating that it has adopted all
reasonably available control measures (including RACT for stationary
sources) necessary to demonstrate attainment as expeditiously as
practicable and to meet any Reasonable Further Progress (RFP)
requirements.''
    Thus the regulatory text itself defines RACT as included in RACM,
and provides that it is required only insofar as it is necessary to
advance attainment. See also section 51.1010(b). Thus, EPA is correct
in its conclusion here that the RACT requirement has been satisfied,
and it does not result in interference with attainment or with other
applicable requirements. The mere fact that EPA has correctly
determined that the area meets the RACT requirements for the 1997
PM2.5 standard, and that thus no more is required under that
standard, does not result in interference with attainment of other
standards.
    The Commenter claims that Wall v. EPA, 265 F.3d 426, 442 (6th Cir.
2001), establishes that fully adopted RACT is nonetheless required. The
Wall case, however, is not applicable to RACT requirements for the
PM2.5 standard. The Wall decision addressed entirely
different statutory provisions for ozone RACT under CAA part D subpart
2, which do not apply or pertain to the subpart 1 RACT requirements for
PM2.5.
    Comment 2c: The Commenter contends that it is inappropriate for EPA
to redesignate the area to attainment at this time, claiming that EPA
is illegally delaying issuing a final rule to revise the annual
PM2.5 NAAQS, and that EPA's Clean Air Science Advisory
Committee has recommended adoption of a lower NAAQS. The Commenter
alleges that EPA is removing the protection of the 1997 NAAQS, while
not adopting a more protective standard.
    Response 2c: EPA finds that the concerns expressed by the Commenter
are unfounded here. First, this redesignation does not remove the
protection of the 1997 annual PM2.5 NAAQS; it does not relax
control requirements or implementation for the 1997 NAAQS. Nor does the
redesignation in any way address or affect the area's obligations under
the new NAAQS. Its purpose and function is to focus solely on the 1997
annual PM2.5 NAAQS, and it has no impact on EPA's position
with respect to requirements for the area under a revised NAAQS.
    Also, on December 14, 2012, EPA finalized a rule revising the
PM2.5 annual standard to 12 [mu]g/m\3\ based on current
scientific evidence regarding the protection of public health. EPA
notes that the newly proposed standard is independent of this action,
and the newly proposed standard does not affect the redesignation of
the Huntington-Ashland area for the 1997 annual PM2.5
standard.
    Comment 3: The Commenter asserts that ``Emissions calculations for
on-road mobile sources fail to consider 15% ethanol in gasoline
(E15).''
    Response 3: In 2010 and 2011, EPA granted partial waivers for use
of E15 in model year (MY) 2001 and newer light-duty motor vehicles (75
FR 68094 and 76 FR 4662). As discussed in the waiver decisions, there
may be some small emission impacts from the use of E15. E15 is expected
to cause a small immediate emissions increase in NOX
emissions. However, due to its lower volatility than the 10% ethanol
gasoline currently in-use, its use is also expected to result in lower
evaporative emissions. Other possible emissions impacts may be from the
misfueling of E15 in vehicles or engines for which its use is not
approved, i.e., MY2000 and older motor vehicles, heavy-duty engines and
vehicles, motorcycles and all nonroad engines, vehicles and equipment.
EPA has promulgated a separate rule dealing specifically with the
mitigation of misfueling to reduce the potential emissions impacts from
misfueling (76 FR 44406).
    However, the E15 partial waivers do not require that E15 be made or
sold and it is unclear if and to what extent E15 may even be used in
Ohio. Even if E15 is introduced into commerce in Ohio, considering the
likely small and offsetting direction of the emission impacts, the
limited set of motor vehicles approved for its use, and the measures
required to mitigate misfueling, EPA believes that any potential
emission impacts of E15 will be less than the maintenance plan safety
margin by which Ohio shows maintenance.
    Commment 4a: The Commenter asserts that the Ohio maintenance plan
is deficient in part because the contingency measures it includes
provide for their implementation within 18 months of a monitored
violation, if

one occurs. The Commenter claims that as a consequence, the
``contingency measures do not provide for prompt correction of
violations.''
    Response 4a: The Commenter overlooks the provisions of the CAA
applicable to contingency measures. Section 175A(d) provides that
``[e]ach plan revision submitted under this section shall contain such
contingency provisions as the Administrator deems necessary to assure
that the state will promptly correct any violation of the standard
which occurs after the redesignation of the area as an attainment
area.'' (emphasis added). Thus Congress gave EPA discretion to evaluate
and determine the contingency measures EPA ``deems necessary'' to
assure that the state will promptly correct any subsequent violation.
EPA has long exercised this discretion in its rulemakings on section
175A contingency measures in redesignation maintenance plans, allowing
as contingency measures commitments to adopt and implement in lieu of
fully adopted contingency measures, and finding that implementation
within 18 months of a violation complies with the requirements of
section 175A.\18\ See recent redesignations, e.g. Lake and Porter 8-
hour ozone standard (75 FR 12090), and Northwest Indiana
PM2.5 annual standard (76 FR 59600). Section 175A does not
establish any deadlines for implementation of contingency measures
after redesignation to attainment. It also provides far more latitude
than does section 172(c)(9), which applies to a different set of
contingency measures applicable to nonattainment areas. Section
172(c)(9) contingency measures must ``take effect * * * without further
action by the state or [EPA].'' By contrast, section 175A confers upon
EPA the discretion to determine what constitutes adequate assurance,
and thus permits EPA to take into account the need of a state to
assess, adopt implement contingency measures if and when a violation
occurs after an area's redesignation to attainment. Therefore, in
accordance with the discretion accorded it by statute, EPA may allow
reasonable time for states to analyze data and address the causes and
appropriate means of remedying a violation. In assessing what
``promptly'' means in this context, EPA also may take into account time
for adopting and implementation of the appropriate measure. In the case
of the Huntington-Ashland area, EPA reasonably concluded that 18 months
constitutes a timeline consistent with prompt correction of a potential
monitored violation. This timeframe also conforms with EPA's many prior
rulemakings on acceptable schedules for implementing section 175A
contingency measures.
---------------------------------------------------------------------------

    \18\ See examples in recent redesignations, e.g. Lake and Porter
County portion of Chicago 1997 8-hour ozone nonattainment area 75 FR
12090 May 11, 2010, and Lake and Porter County portion of Chicago
1997 PM2.5 annual standard 76 FR 59600, September 27,
2011.
---------------------------------------------------------------------------

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

emission limits that contain the SSM provisions objected to by the
Commenter are ``permanent and enforceable'' SIP provisions. The
Commenter expresses concerns about certain exemptions for excess
emissions within those existing provisions, but that does not affect
whether the provisions are permanent and enforceable for purposes of
redesignations. Similarly, the Commenter expresses concern that these
existing provisions are not consistent with other requirements of the
CAA, but as of this time those provisions are part of the approved Ohio
SIP. EPA is in the process of addressing SSM provisions in the Ohio SIP
through an on-going nationwide process, and in the event that EPA
determines the provisions to be problematic, EPA can address them in
that more appropriate context.
    The CAA sets forth the general criteria for redesignation of an
area from nonattainment to attainment in section 107(d)(3)(E). These
criteria include that the Administrator has fully approved the
implementation plan for area for applicable requirements, 42 U.S.C.
7407(d)(3)(E)(ii)and (v). EPA must also determine that the improvement
in air quality is due to reductions that are ``permanent and
enforceable'' (iii), and that the area has an approved maintenance plan
under section 175A. EPA has fully addressed all these criteria in its
proposed and final rulemakings on the redesignation of the Ohio portion
of the Huntington-Ashland Area. The SSM-related SIP provisions
identified in the Commenter's letter are already approved, portions of
the Ohio SIP, and EPA is not required to re-evaluate or revise them as
part of this redesignation. EPA's review here is limited to whether the
already approved SSM provisions impact any redesignation requirement in
section 107(d)(3)(E), so as to preclude EPA from approving the
redesignation request. There is no basis for EPA to conclude that these
provisions have such effect. First, it has long been established that
in approving a redesignation request EPA may rely on prior SIP
approvals plus any additional measures it may approve in conjunction
with a redesignation action. See John Calcagni Memorandum (September 4,
1992 at 3); Southwestern Pennsylvania Growth Alliance v. Browner, 144
F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir.
2001); 68 FR 25413, 25426 (May 12, 2003).
    While the Commenter takes the position that specific SSM provisions
in the Ohio rules result in a ``regulatory structure that is
inconsistent with the fundamental requirement that all excess emissions
be considered violations,'' the Commenter does not link this concern
with any specific deficiencies in Ohio's redesignation submittal for
the Huntington-Ashland Area.\19\
---------------------------------------------------------------------------

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

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

embodies EPA's interpretation under its ``Clean Data Policy,'' has been
upheld by the D.C. Circuit Court. NRDC v. EPA, 571 F.3d 1245 (D.C. Cir.
2009).\20\
---------------------------------------------------------------------------

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

    Moreover, prior to the promulgation of 40 CFR 51.1004(c) the
General Preamble for Implementation of Title I (57 FR 13498, April 16,
1992) addressed the role of attainment-related planning requirements in
the specific context of EPA's consideration of a redesignation request.
The General Preamble sets forth EPA's view of applicable requirements
for purposes of evaluating redesignation requests when an area is
attaining a standard (General Preamble for Implementation of Title I
(57 FR 13498, April 16, 1992)).
    In the context of redesignations, EPA has interpreted requirements
related to attainment as not applicable for purposes of redesignation.
    The General Preamble explains that, in the context of a
redesignation to attainment, when EPA determines that attainment has
been reached, no additional measures are needed to provide for
attainment. Thus section 172(c)(1) requirements for an attainment
demonstration and RACM are no longer considered to be applicable for
purposes of redesignation as long as the area continues to attain the
standard until redesignation. The RFP requirement under section
172(c)(2) and contingency measures requirement under section 172(c)(9)
are similarly not relevant for purposes of redesignation. The General
Preamble stated:

    [t]he section 172(c)(9) requirements are directed at ensuring
RFP and attainment by the applicable date. These requirements no
longer apply when an area has attained the standard and is eligible
for redesignation. Furthermore, section 175A for maintenance plans *
* * provides specific requirements for contingency measures that
effectively supersede the requirements of section 172(c)(9) for
these areas. ``General Preamble for the Interpretation of Title I of
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR
13498, 13564 (April 16, 1992).

    See also Calcagni memorandum at 6 (``The requirements for
reasonable further progress and other measures needed for attainment
will not apply for redesignations because they only have meaning for
areas not attaining the standard.''). With respect to nonattainment NSR
requirements, see EPA's response to Comment 6c, below.
    Comment 6b: The Commenter contends that the Ohio SIP lacks approved
contingency measures. The Commenter asserts that contingency measures
must be in place so that, if an area monitor shows a violation of the
NAAQS in the future, that violation of the NAAQS is quickly addressed,
minimizing the number of people that will be harmed by air quality
levels above the NAAQS.
    Response 6b: As explained in the response to the previous comment
(6a), the nonattainment area contingency measure requirements of
section 172(c)(9) are directed at ensuring RFP and attainment by the
applicable date. These nonattainment area requirements no longer apply
after an area has attained the standard and after the area has been
redesignated to attainment. Under section 175A of the CAA, a
maintenance plan must contain contingency provisions, ``as deemed
necessary by the Administrator,'' and it is these contingency measures
that apply to the area after redesignation to attainment. Ohio has
included such provisions in its maintenance plan, which EPA is
approving in this action.
    Ohio has committed to remedy a future violation that may occur
after redesignation, and has included measures to address potential
violations from a range of sources, as well as a timeline for promptly
completing adoption and implementation. The state has identified
measures that are sufficiently specific but which allow for latitude in
potential scope. EPA believes that the contingency measures set forth
in the submittal, combined with the state's commitment to an
expeditious timeline and process for implementation, provide assurance
that the State will promptly correct a future potential violation. The
contingency measures, as part of the maintenance plan, are codified
into the state's SIP at the time the area is redesignated to attainment
effective upon publication.
    Comment 6c: The Commenter asserts that the Ohio SIP lacks a
PM2.5 nonattainment NSR program. The Commenter also contends
that the prevention of significant deterioration (PSD) program that is
part of the SIP that an area being redesignated needs to ensure that
the area will stay in attainment. The Commenter takes the position that
EPA cannot approve the redesignation request because Ohio does not have
an adequate PM2.5 PSD program. The Commenter bases his
conclusion that Ohio's PSD program is inadequate for PM2.5
on the contention that the programs do not contain significant emission
rates for PM2.5 and its precursors, and that the programs do
not include PM2.5 increments.
    Response 6c: Ohio has an approved nonattainment NSR program in its
SIP. EPA approved Ohio's current NSR program on January 10, 2003 (68 FR
1366). Nonetheless, for purposes of evaluating a request for
redesignation to attainment, because PSD requirements will apply after
redesignation, EPA's longstanding view is that the area need not have a
fully-approved nonattainment NSR program, provided that the area
demonstrates maintenance of the NAAQS without part D NSR. A detailed
rationale for this view is described in a memorandum from Mary Nichols,
Assistant Administrator for Air and Radiation, dated October 14, 1994,
entitled, ``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' The memo states, ``nonattainment areas
may be redesignated to attainment notwithstanding the lack of a fully-
approved part D NSR program, provided the program is not relied upon
for maintenance.'' In this case, Ohio has not relied upon NSR to
maintain the standard.
    Congress used the undefined term ``measure'' differently in various
provisions of the CAA, which indicates that the term is susceptible to
more than one interpretation and that EPA has the discretion to
interpret it in a reasonable manner in the context of section 175A. See
Greenbaum v. United States EPA, 370 F. 3d 527, 535-38 (6th Cir. 2004).
(court ``find[s] persuasive the EPA's argument that the very nature of
the NSR permit program supports its interpretation that it is not
intended to be a contingency measure pursuant to section 175A(d).'') It
is reasonable to interpret ``measure'' to exclude part D NSR in this
context because PSD, a program that is the corollary of part D NSR for
attainment areas, goes into effect in lieu of part D NSR upon
redesignation. PSD requires that new sources demonstrate that emissions
from their construction and operation will not cause or contribute to a
violation of any NAAQS or PSD increment. The state has demonstrated
that the area will be able to maintain the standard without part D NSR
in effect, and the state's PSD program will become effective in the
area upon redesignation to attainment. See the rationale set forth at
length in the Nichols Memorandum. For other explanations of why full
approval and retention of NSR is not required in redesignation actions,
see the following redesignation rulemakings: 60 FR 12459, 12467-12468
(March 7, 1995)(Redesignation of Detroit, MI); 61 FR 20458, 20469-20470
(May 7,

1996)(Cleveland-Akron-Lorrain, OH); 66 FR 53665, 53669 (October 23,
2001) (Louisville, KY); 61 FR 31831, 31836-31837 (June 21, 1996) (Grand
Rapids, MI). Contrary to the Commenter's assertion, the Greenbaum court
declined to reach the issue of whether full approval of a part D NSR
program is required prior to redesignation. See Greenbaum, 370 F. 3d at
534-35.
    Ohio also has an EPA approved PSD program that includes
PM2.5 as a NSR pollutant. While the Commenter is correct in
stating that both Ohio approved PSD SIPs do not include specific
significant emissions rates for PM2.5 or its precursors, the
Ohio SIP does include a provision that sets ``any emission rate'' as
the significant emission rate for any regulated NSR pollutant that does
not have a specific significant emission rate listed in the state rule.
    Therefore, any increase in direct PM2.5 emissions or
emissions of its precursors (SO2 and NOX) will
trigger the requirements to obtain a PSD permit; to perform an air
quality analysis that demonstrates that the proposed source or
modification will not cause or contribute to a violation of the
PM2.5 NAAQS; and to apply best available control technology
for direct PM2.5 and/or the pertinent precursor.
    In addition, the fact that Ohio's approved PSD SIPs lack
PM2.5 increments does not prevent the program from
addressing and helping to assure maintenance of the PM2.5
standard in accordance with CAA section 175A. A PSD increment is the
maximum increase in concentration that is allowed to occur above a
baseline concentration for a pollutant. Even in the absence of an
approved PSD increment, the approved PSD program prohibits air quality
from deteriorating beyond the concentration allowed by the applicable
NAAQS. Thus Ohio's approved PSD program is adequate for purposes of
assuring maintenance of the 1997 annual PM2.5 standard as
required by section 175A.
    Comment 6d: The Commenter contends that the Ohio SIP does not have
approved RACT rules.
    Response 6d: This comment has been addressed above, in response 2b.
    Comment 6e: The Commenter claims that 42 U.S.C. 7502(c)(7) requires
that the nonattainment SIP meet all the requirements of 42 U.S.C.
7410(a)(2). EPA interprets this to mean only the Infrastructure
elements that are linked to the nonattainment area. EPA's position
contradicts the plain language of the statute. The Commenter also
states that EPA says that it disapproved the Section 110(a)(2)(D)(i)
portion of the Ohio Infrastructure submittal but did not take action on
the rest of the September 4, 2009, submittal. 76 FR 79595. However, EPA
did not explain what is included in the September 4, 2009, submittal
and did not provide the September 4, 2009, submittal in the docket.
    Response 6e: For a number of reasons, the concerns expressed by the
Commenter are unfounded. First, EPA has issued final approvals of
Ohio's infrastructure SIP for 1997 ozone and PM standards for all
portions of 110(a) 2 requirements (76 FR 23757, April 28, 2011). EPA
also acted on Ohio's submittal of the 2006 PM infrastructure SIP
(proposed 76 FR 6376, February 4, 2011, finalized 76 FR 43175, July 20,
2011) where EPA disapproved the state's use of CAIR to fulfill the
requirements of 110(a)2(D). EPA notes that there was an editorial error
in the Federal Register citation (but not the date of publication) of
the 2006 infrastructure disapproval in the proposed redesignation;
however, this has been fixed in the reference above, and a full
submittal can be found in that docket. Even with this disapproval on
February 4, 2011, the approval of the 1997 PM infrastructure elements
on April 28, 2011, fulfills the ``fully approved'' SIP elements
associated with redesignation, with exceptions unrelated to the
requirements for redesignation.
    The requirements applicable for purposes of redesignation are those
which at a minimum are linked to the attainment status of the area
being redesignated. As noted in the proposal (76 FR 23757, April 28,
2011), all areas, regardless of their designation as attainment or
nonattainment, are subject to section 110(a)(2)(D). The applicability
of this provision is not connected with nonattainment plan submissions
or with the attainment status of an area. A nonattainment area remains
subject to the requirements of section 110(a)(2)(D) after it has been
redesignated to attainment. Therefore EPA has long interpreted the
110(a)(2)(D) requirements as a not applicable requirement for purposes
of redesignation. EPA has leeway to determine what constitutes an
``applicable'' requirement under section 107(d)(3)(E), and EPA's
interpretation is entitled to deference. Sierra Club v. EPA, 375 F.3d
537 (7th Cir. 2004). EPA has consistently interpreted only those
section 110 requirements that are linked with a particular area's
designation as the requirements to be considered in evaluating a
redesignation request. See, e.g., EPA's position on the applicability
of conformity, oxygenated fuels requirements for purposes of
redesignations. See Reading, Pennsylvania, proposed and final
rulemakings (61 FR 53174-53176, October 10, 1996, and 62 FR 24826, May
7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458,
May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748,
December 7, 1995). See also the discussion on this issue in the
Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890, June 19,
2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation
(66 FR 50399, October 19, 2001).
    Comment 7: The Commenter contends that Ohio must restore an ambient
air monitor to Lawrence County, in order to meet the monitoring network
requirements.
    Response 7: EPA disagrees with the Commenter that the monitoring
network must restore a monitor in Lawrence County. Currently, Ohio
operates a monitor in Lawrence County, the Ironton Department of
Transportation (DOT) site monitor, and the monitoring network for the
area has met and continues to meet monitoring network requirements. The
Ironton DOT site address for the monitor in Lawrence County was moved
to a location within 1.5 miles of the former site location (Lawrence
County Hospital). The Lawrence County Hospital site was demolished on
February 12, 2008, and a new site in the Lawrence County, Ohio portion
of the Huntington-Ashland area, known as the Ironton DOT site, began
operation on the same day. To date the Ironton DOT site has collected a
complete design value for the monitoring period 2009-2011, which shows
that the area continues to attain the 1997 annual standard. A full
discussion of this aspect of the monitoring history is contained in the
proposed determination of attainment for the Huntington-Ashland area
(76 FR 27290, May 11, 2011).
    Comment 8: The Commenter asserts that the 2005 emissions inventory
that EPA is proposing to approve as meeting the emission inventory
requirement of section 172(c)(3) of the CAA is inadequate and EPA
cannot approve this emissions inventory. The Commenter notes that the
emissions inventory is 6 years old. In addition, the commenter contends
that portions of the emissions inventory were estimated, as opposed to
being actual emissions, and claims that EPA has included in the docket
only a summary of the emissions inventory. The Commenter asserts that
EPA must place in the docket a comprehensive emissions inventory,
including information for each point

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

IV. Why is EPA taking these actions?

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

V. Final Action

    EPA has previously made the determination that the Huntington-
Ashland area has attained the 1997 annual PM2.5 standard (76
FR 55541). EPA is determining that the area continues to attain the
standard and that the Ohio portion of the area meets the requirements
for redesignation to attainment of that standard under sections
107(d)(3)(E) and 175A of the CAA. Thus, EPA is granting the request
from Ohio to change the legal designation of its portion of the
Huntington-Ashland area from nonattainment to attainment for the 1997
annual PM2.5 NAAQS. EPA is also approving Ohio's 1997 annual
PM2.5 maintenance plan for the Huntington-Ashland area as a
revision to the SIP because the plan meets the requirements of section
175A of the CAA. EPA is approving the 2005 and 2008 emissions
inventories for primary PM2.5, NOX, and
SO2, documented in Ohio's May 4, 2011, submittals as
satisfying the requirement in section 172(c)(3) of the CAA for a
comprehensive, current emission inventory. Finally, for transportation
conformity purposes, EPA is approving Ohio's determination that on-road
emissions of PM2.5 and NOX are insignificant
contributors to PM2.5 concentrations in the area.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for this action to become effective immediately upon publication. This
is because a delayed effective date is unnecessary due to the nature of
a redesignation to attainment, which relieves the area from certain CAA
requirements that would otherwise apply to it. The immediate effective
date for this action is authorized under both 5 U.S.C. 553(d)(1), which
provides that rulemaking actions may become effective less than 30 days
after publication if the rule--grants or recognizes an exemption or
relieves a restriction, and section 553(d)(3), which allows an
effective date less than 30 days after publication--as otherwise
provided by the agency for good cause found and published with the
rule. The purpose of the 30-day waiting period prescribed in section
553(d) is to give affected parties a reasonable time to adjust their
behavior and prepare before

the final rule takes effect. Today's rule, however, does not create any
new regulatory requirements such that affected parties would need time
to prepare before the rule takes effect. Rather, today's rule relieves
the Ohio of various requirements for the Ohio portion of the
Huntington-Ashland area. For these reasons, EPA finds good cause under
5 U.S. C. 553(d)(3) for this action to become effective on the date of
publication of this action.

VI. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the
accompanying approval of the maintenance plan under CAA section
107(d)(3)(E) are actions that affect the status of geographical area
and do not impose any additional regulatory requirements on sources
beyond those required by state law. A redesignation to attainment does
not in and of itself impose any new requirements, but rather results in
the application of requirements contained in the CAA for areas that
have been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For these reasons, these actions:
     Are not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Are not significant regulatory action subject to Executive
Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
     Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this final rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the Commonwealth, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 1, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Air pollution control, National parks.

    Dated: December 18, 2012.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

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

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

0
2. Section 52.1880 is amended by adding paragraphs (p)(2) and (q)(2) to
read as follows:

Sec.  52.1880  Control strategy: Particulate matter.

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

PART 81--[AMENDED]

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

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

0
4. Section 81.336 is amended by removing the entry for Huntington-
Ashland, WV-KY-OH and adding in its place an entry for Huntington-
Ashland, OH in the table entitled ``Ohio PM2.5 (Annual
NAAQS)'' to read as follows:

Sec.  81.336  Ohio.

* * * * *

                        Ohio PM2.5 (Annual NAAQS)
------------------------------------------------------------------------
                                                  Designation \a\
             Designated area             -------------------------------
                                             Date \1\          Type
------------------------------------------------------------------------

                              * * * * * * *
Huntington-Ashland, OH..................
    Adams County (part).................
        Monroe Township.................
        Sprigg Township.................
    Gallia County (part)................
        Addison Township................
        Cheshire Township...............
    Lawrence County.....................
    Scioto County.......................        12/31/12     Attainment.

                              * * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
  otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.

* * * * *
[FR Doc. 2012-31276 Filed 12-28-12; 8:45 am]
BILLING CODE 6560-50-P