[Federal Register Volume 76, Number 202 (Wednesday, October 19, 2011)]
[Rules and Regulations]
[Pages 64825-64838]
[FR Doc No: 2011-26887]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2011-0017; EPA-R05-OAR-2011-0106; FRL-9480-6]

Approval and Promulgation of Air Quality Implementation Plans,
Ohio and Indiana; Redesignation of the Ohio and Indiana Portions
Cincinnati-Hamilton Area to Attainment of the 1997 Annual Standard for
Fine Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving, under the Clean Air Act (CAA), Ohio's and
Indiana's requests to redesignate their respective portions of the
Cincinnati-Hamilton nonattainment area (for Ohio: Butler, Clermont,
Hamilton, and Warren Counties, Ohio; for IN: a portion of Dearborn
County) to attainment for the 1997 annual National Ambient Air Quality
Standard (NAAQS or standard) for fine particulate matter
(PM2.5). The Ohio Environmental Protection Agency (Ohio EPA)
submitted its request on December 9, 2010, and the Indiana

Department of Environmental Management (IDEM) submitted its request on
January 25, 2011. Kentucky's request to redesignate its portion of the
Cincinnati-Hamilton area, submitted to EPA on January 27, 2011, will be
addressed in a separate rulemaking action. EPA's approvals here involve
several additional related actions. EPA has determined that the entire
Cincinnati-Hamilton area has attained the 1997 annual PM2.5
standard. EPA is approving, as revisions to the Ohio and Indiana State
Implementation Plans (SIPs), the states' plans for maintaining the 1997
annual PM2.5 NAAQS through 2021 in the area. EPA is
approving the 2005 emissions inventories for the Ohio and Indiana
portions of the Cincinnati-Hamilton area as meeting the comprehensive
emissions inventory requirement of the CAA. Finally, EPA finds adequate
and is approving Ohio and Indiana's Nitrogen Oxides (NOX)
and PM2.5 Motor Vehicle Emission Budgets (MVEBs) for 2015
and 2021 for the Cincinnati-Hamilton area.

DATES: This direct final rule will be effective December 19, 2011,
unless EPA receives adverse comments by November 18, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0106 (Indiana) or EPA-R05-OAR-2011-0017 (Ohio) by one of the
following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Doug Aburano, Chief, Control Strategies Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: Doug Aburano, Control Strategies Section,
Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77
West Jackson Boulevard, 18th Floor, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office's normal hours
of operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2011-0106, EPA-R05-OAR-2011-0017. EPA's policy is that all comments
received will be included in the public docket without change and may
be made available online at http://www.regulations.gov, including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
http://www.regulations.gov or email. The http://www.regulations.gov Web
site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects and viruses. For additional instructions on submitting
comments, go to section I of the SUPPLEMENTARY INFORMATION section of
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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 http://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 actions is EPA taking?
II. What is the background for these actions?
III. What are the criteria for redesignation to attainment?
IV. What is EPA's analysis of the States' requests?
    A. Attainment Determination and Redesignation
    B. Adequacy of Ohio and Indiana's MVEBs
    C. 2005 Comprehensive Emissions Inventory
V. Summary of Actions
VI. Statutory and Executive Order Reviews

I. What actions is EPA taking?

    EPA has previously determined that the entire Cincinnati-Hamilton
area is attaining the 1997 annual PM2.5 standard and that
the Ohio and Indiana portions of the area have met the requirements for
redesignation under section 107(d)(3)(E) of the CAA through a final
determination made on September 29, 2011. EPA is thus approving the
requests from the states of Ohio and Indiana to change the legal
designation of their portions of the Cincinnati-Hamilton area from
nonattainment to attainment for the 1997 annual PM2.5 NAAQS.
This action does not address the Kentucky portion of the Cincinnati-
Hamilton area. EPA is also taking several additional actions related to
Ohio and Indiana's PM2.5 redesignation requests, as
discussed below.
    EPA is approving Indiana's and Ohio's PM2.5 maintenance
plans for the Cincinnati-Hamilton area as revisions to the Ohio and
Indiana SIP (such approval being one of the CAA criteria for
redesignation to attainment status). The maintenance plans are designed
to keep the Cincinnati-Hamilton area in attainment of the 1997 annual
PM2.5 NAAQS through 2021.
    EPA is approving 2005 emissions inventories for primary
PM2.5,\1\ NOX, and sulfur dioxide
(SO2),\2\ documented in Ohio and Indiana's PM2.5
redesignation request supplemental submittal. These emissions
inventories satisfy the requirement in section 172(c)(3) of the CAA for
a comprehensive, current emission inventory.
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    \1\ Fine particulates directly emitted by sources and not formed
in a secondary manner through chemical reactions or other processes
in the atmosphere.
    \2\ NOX and SO2 are precursors for fine
particulates through chemical reactions and other related processes
in the atmosphere.
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    Finally, EPA finds adequate and is approving Ohio's and Indiana's
2015

and 2021 primary PM2.5 and NOX MVEBs for the
Cincinnati-Hamilton area. These MVEBs will be used in future
transportation conformity analyses for the area. Further discussion of
the basis for these actions is provided below.

II. What is the background for these actions?

    The first air quality standards for PM2.5 were
promulgated on July 18, 1997, at 62 FR 38652. EPA promulgated an annual
standard at a level of 15 micrograms per cubic meter ([micro]g/m\3\) of
ambient air, based on a three-year average of the annual mean
PM2.5 concentrations at each monitoring site. In the same
rulemaking, EPA promulgated a 24-hour PM2.5 standard at 65
[micro]g/m\3\, based on a three-year average of the annual 98th
percentile of 24-hour PM2.5 concentrations at each
monitoring site.
    On January 5, 2005, at 70 FR 944, EPA published air quality area
designations for the 1997 annual PM2.5 standard based on air
quality data for calendar years 2001-2003. In that rulemaking, EPA
designated the Cincinnati-Hamilton, area as nonattainment (for Ohio:
Butler, Clermont, Hamilton, and Warren Counties, Ohio; for IN: a
portion of Dearborn County, and for Kentucky: Boone, Campbell, and
Kenton Counties) for the 1997 annual PM2.5 standard.
    On October 17, 2006, at 71 FR 61144, EPA retained the annual
PM2.5 standard at 15 [micro]g/m\3\ (2006 annual
PM2.5 standard), but revised the 24-hour standard to 35
[micro]g/m\3\, based again on the three-year average of the annual 98th
percentile of the 24-hour PM2.5 concentrations. In response
to legal challenges to the 2006 annual PM2.5 standard, the
U.S. Court of Appeals for District of Columbia Circuit (DC Circuit)
remanded this standard to EPA for further consideration. See American
Farm Bureau Federation and National Pork Producers Council, et al. v.
EPA, 559 F.3d 512 (DC Cir. 2009). However, given that the 1997 and 2006
annual PM2.5 standards are essentially identical, attainment
of the 1997 annual PM2.5 standard would also indicate
attainment of the remanded 2006 annual standard. Since the Cincinnati-
Hamilton area is designated as nonattainment for the 1997 annual
PM2.5 standard, today's proposed action addresses
redesignation to attainment only for this standard.
    Fine particulate pollution can be emitted directly from a source
(primary PM2.5) or formed secondarily through chemical
reactions in the atmosphere involving precursor pollutants emitted from
a variety of sources. Sulfates are a type of secondary particulate
formed from SO2 emissions from power plants and industrial
facilities. Nitrates, another common type of secondary particulate, are
formed from combustion emissions of NOX from power plants,
mobile sources, and other combustion sources.

III. What are the criteria for redesignation to attainment?

    The CAA sets forth the requirements for redesignating a
nonattainment area to attainment. Specifically, section 107(d)(3)(E) of
the CAA allows redesignation provided that: (1) The Administrator
determines that the area has attained the applicable NAAQS; (2) the
Administrator has fully approved the applicable SIP for the area under
section 110(k) of the CAA; (3) the Administrator determines that the
improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from the implementation of the
applicable SIP, Federal emission control regulations, and other
permanent and enforceable emission reductions; (4) the Administrator
has fully approved a maintenance plan for the area meeting the
requirements of section 175A of the CAA; and, (5) the state containing
the area has met all requirements applicable to the area for purposes
of redesignation under section 110 and part D of the CAA.

IV. What is EPA's analysis of the States' requests?

A. Attainment Determination and Redesignation

    EPA has determined that the entire Cincinnati-Hamilton area has
attained the 1997 annual PM2.5 standard and that the Ohio
and Indiana portions of the area have met all other applicable
redesignation criteria under CAA section 107(d)(3)(E). The basis for
EPA's approvals of the redesignation requests is as follows:
1. The Area Has Attained the 1997 Annual PM2.5 NAAQS
(Section 107(d)(3)(E)(i))
    On June 3, 2011, EPA proposed to determine that the entire
Cincinnati-Hamilton area has attained the 1997 annual PM2.5
NAAQS (76 FR 32110). No adverse comments were received and EPA's Region
4 and Region 5 Regional Administrators signed the final determination
of attainment for the Cincinnati-Hamilton area on August 18, 2011 and
September 12, 2011, respectively and published in the Federal Register
on September 29, 2011. Relevant discussion of the monitored
concentrations and sites can be found in the notices for the proposed
and final determinations that are referenced above. EPA's September 29,
2011 final determination that the Cincinnati-Hamilton area has attained
the 1997 annual PM2.5 standard fulfills the requirement set
forth in CAA section 107(d)(3)(E)(i).
2. The Area Has Met All Applicable Requirements Under Section 110 and
Part D; and the Area Has a Fully Approved SIP Under Section 110(k)
(Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii))
    We have determined that Ohio and Indiana have met all currently
applicable SIP requirements for purposes of redesignation of the Ohio
and Indiana portions of the Cincinnati-Hamilton area under section 110
of the CAA (general SIP requirements). We are also finding that the
Ohio and Indiana SIPs meet all SIP requirements currently applicable
for purposes of redesignation under part D of title I of the CAA, in
accordance with section 107(d)(3)(E)(v). In addition, with the
exception of the emissions inventory under section 172(c)(3), we have
approved all applicable requirements of the Ohio and Indiana SIPs for
purposes of redesignation, in accordance with section 107(d)(3)(E)(ii).
As discussed below, in this action EPA is approving Ohio and Indiana's
2005 emissions inventories as meeting the section 172(c)(3)
comprehensive emissions inventory requirement.
    In making these determinations, we have ascertained which SIP
requirements are applicable for purposes of redesignation, and have
determined that there are SIP measures meeting those requirements and
that they are fully approved under section 110(k) of the CAA.
a. Ohio and Indiana Have Met All Applicable Requirements for Purposes
of Redesignation of Their Portions of the Area Under Section 110 and
Part D of the CAA
i. Section 110 General SIP Requirements
    Section 110(a) of title I of the CAA contains the general
requirements for a SIP. Section 110(a)(2) provides that the
implementation plan submitted by a state must have been adopted by the
state after reasonable public notice and hearing, and, among other
things, must: include enforceable emission limitations and other
control measures, means or techniques necessary to meet the
requirements of the CAA; provide for establishment and operation of
appropriate devices, methods, systems, and procedures necessary to
monitor

ambient air quality; provide for implementation of a source permit
program to regulate the modification and construction of any stationary
source within the areas covered by the plan; include provisions for the
implementation of part C, Prevention of Significant Deterioration (PSD)
and part D, New Source Review (NSR) permit programs; include criteria
for stationary source emission control measures, monitoring, and
reporting; include provisions for air quality modeling; and provide for
public and local agency participation in planning and emission control
rule development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain measures
to prevent sources in a state from significantly contributing to air
quality problems in another state. EPA believes that the requirements
linked with a particular nonattainment area's designation are the
relevant measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state. Thus, we believe that these requirements should not
be construed to be applicable requirements for purposes of
redesignation.
    Further, we believe that the other section 110 elements described
above that are not connected with nonattainment plan submissions and
not linked with an area's attainment status are also not applicable
requirements for purposes of redesignation. A state remains subject to
these requirements after an area is redesignated to attainment. We
conclude that only the section 110 and part D requirements that are
linked with a particular area's designation are the relevant measures
which we may consider in evaluating a redesignation request. This
approach is consistent with EPA's existing policy on applicability of
conformity and oxygenated fuels requirements for redesignation
purposes, as well as with section 184 ozone transport requirements. 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).
    We have reviewed Ohio and Indiana's SIPs and have concluded that
they meet the general SIP requirements under section 110 of the CAA to
the extent they are applicable for purposes of redesignation. EPA has
previously approved provisions of Ohio and Indiana's SIPs addressing
section 110 requirements (including provisions addressing particulate
matter, at 40 CFR 52.770 and 40 CFR 52.1870, respectively).
    On December 7, 2007, September 9, 2008, March 23, 2011, and April
7, 2011, Indiana made submittals addressing ``infrastructure SIP''
elements required by section 110(a)(2) of the CAA. EPA approved
elements of Indiana's submittals on July 13, 2011, at 76 FR 41075.
    On December 5, 2007, and September 4, 2009, Ohio made submittals
addressing ``infrastructure SIP'' elements required under CAA section
110(a)(2). EPA proposed approval of the December 5, 2007, submittal on
April 28, 2011, at 76 FR 23757 and published final approval on July 13,
2011, at 76 FR 41075. EPA disapproved the element of the September 4,
2009, submittal that addresses section 110(a)(2)(D)(i) on July 20,
2011, at 76 FR 43175, but has not taken rulemaking action on the
remainder of the submittal.
    The remaining parts of the infrastructure SIPs required by section
110(a)(2) are not relevant to this redesignation, and are statewide
requirements that are not linked to the PM2.5 nonattainment
status of the Cincinnati-Hamilton area. Therefore, EPA believes that
these SIP elements are not applicable requirements for purposes of
review of the state's PM2.5 redesignation request.
ii. Part D Requirements
    EPA has determined that, upon approval of the base year emissions
inventories discussed in section IV.C. of this rulemaking, the Ohio and
Indiana SIPs will meet the SIP requirements for the Cincinnati-Hamilton
area applicable for purposes of redesignation under part D of the CAA.
Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth
the basic nonattainment requirements applicable to all nonattainment
areas.
    Subpart 1--Section 172 Requirements.
    For purposes of evaluating these redesignation requests, the
applicable section 172 SIP requirements for the Ohio and Indiana
portions of the Cincinnati-Hamilton area are contained in sections
172(c)(1)-(9). A thorough discussion of the requirements contained in
section 172 can be found in the General Preamble for Implementation of
Title I (57 FR 13498, April 16, 1992).
    Section 172(c)(1) requires the plans for all nonattainment areas to
provide for the implementation of all Reasonably Available Control
Measures (RACM) as expeditiously as practicable and to provide for
attainment of the primary NAAQS. EPA interprets this requirement to
impose a duty on all nonattainment areas to consider all available
control measures and to adopt and implement such measures as are
reasonably available for implementation in each area as components of
the area's attainment demonstration. Because attainment has been
reached, no additional measures are needed to provide for attainment,
and section 172(c)(1) requirements are no longer considered to be
applicable as long as the area continues to attain the standard until
redesignation. (40 CFR 51.1004(c)).
    The Reasonable Further Progress (RFP) requirement under section
172(c)(2) is defined as progress that must be made toward attainment.
This requirement is not relevant for purposes of redesignation because
the Cincinnati-Hamilton area has monitored attainment of the 1997
annual PM2.5 NAAQS. (General Preamble, 57 FR 13564). See
also 40 CFR 51.918. In addition, because the Cincinnati-Hamilton area
has attained the 1997 annual PM2.5 NAAQS and is no longer
subject to an RFP requirement, the requirement to submit the section
172(c)(9) contingency measures is not applicable for purposes of
redesignation. Id.
    Section 172(c)(3) requires submission and approval of a
comprehensive, accurate and current inventory of actual emissions. Ohio
and Indiana submitted 2005 base year emissions inventories along with
their redesignation requests. As discussed below in section IV.C., EPA
is approving the 2005 base year inventories as meeting the section
172(c)(3) emissions inventory requirement for the Cincinnati-Hamilton
area.
    Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources in an
area, and section 172(c)(5) requires source permits for the
construction and operation of new and modified major stationary sources
anywhere in the nonattainment area. EPA approved Ohio's current NSR
program on January 10, 2003 (68 FR 1366). EPA approved Indiana's
current NSR program on October 7, 1994 (59 FR 51108). Nonetheless,
since PSD requirements will apply after redesignation, the area need
not have a fully-approved NSR

program for purposes of redesignation, provided that the area
demonstrates maintenance of the NAAQS without part D NSR. A detailed
rationale for this view is described in a memorandum from Mary Nichols,
Assistant Administrator for Air and Radiation, dated October 14, 1994,
entitled, ``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' Indiana has demonstrated that the
Indianapolis area will be able to maintain the standard without part D
NSR in effect; therefore, the state need not have a fully approved part
D NSR program prior to approval of the redesignation request. The
state's PSD program will become effective in the Indianapolis area upon
redesignation to attainment. See rulemakings for Detroit, Michigan (60
FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR
20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665,
October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June
21, 1996).
    Section 172(c)(6) requires the SIP to contain control measures
necessary to provide for attainment of the standard. Because attainment
has been reached, no additional measures are needed to provide for
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, we believe the Ohio
and Indiana SIPs meet the requirements of section 110(a)(2) applicable
for purposes of redesignation.
    Subpart 1--Section 176(c)(4)(D) Conformity SIP Requirements.
    The requirement to determine conformity applies to transportation
plans, programs and projects developed, funded or approved under title
23 of the U.S. Code and the Federal Transit Act (transportation
conformity) as well as to all other Federally-supported or funded
projects (general conformity).
    Section 176(c) of the CAA was amended by provisions contained in
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU), which was signed into law on August 10,
2005 (Public Law 109-59). Among the changes Congress made to this
section of the CAA were streamlined requirements for state
transportation conformity SIPs. State transportation conformity
regulations must be consistent with Federal conformity regulations and
address three specific requirements related to consultation,
enforcement, and enforceability.
    EPA believes that it is reasonable to interpret the transportation
conformity SIP requirements as not applying for purposes of evaluating
the redesignation request under section 107(d) for two reasons. First,
the requirement to submit SIP revisions to comply with the
transportation conformity provisions of the CAA continues to apply to
areas after redesignation to attainment since such areas would be
subject to a section 175A maintenance plan. Second, EPA's Federal
conformity rules require the performance of conformity analyses in the
absence of Federally-approved state rules. Therefore, because areas are
subject to the transportation conformity requirements regardless of
whether they are redesignated to attainment and, because they must
implement conformity under Federal rules if state rules are not yet
approved, EPA believes it is reasonable to view these requirements as
not applying for purposes of evaluating a redesignation request. See
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this
interpretation. See also 60 FR 62748, 62749-62750 (Dec. 7, 1995)
(Tampa, Florida).
    Ohio and Indiana both have approved transportation conformity SIPs
(72 FR 20945 (Ohio) and 75 FR 50708 (Indiana)). Ohio and Indiana are in
the process of updating their approved transportation conformity SIPs,
and EPA will review these when they are submitted.
b. The Cincinnati-Hamilton Area Has a Fully Approved Applicable SIP
Under Section 110(k) of the CAA
    Upon final approval of Ohio and Indiana's comprehensive 2005
emissions inventories, EPA will have fully approved the Ohio and
Indiana SIP for the Cincinnati-Hamilton area under section 110(k) of
the CAA for all requirements applicable for purposes of redesignation.
EPA may rely on prior SIP approvals in approving a redesignation
request (See page 3 of the September 4, 1992, memorandum from John
Calcagni, entitled ``Procedures for Processing Requests to Redesignate
Areas to Attainment,''; 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)) plus any additional measures it may approve in
conjunction with a redesignation action. See 68 FR 25413, 25426 (May
12, 2003). Since the passage of the CAA of 1970, Ohio and Indiana have
adopted and submitted, and EPA has fully approved, provisions
addressing various required SIP elements under particulate matter
standards. In this action, EPA is approving Ohio and Indiana's 2005
base year emissions inventory for the Cincinnati-Hamilton area as
meeting the requirement of section 172(c)(3) of the CAA.
3. The Improvement in Air Quality Is Due to Permanent and Enforceable
Reductions in Emissions Resulting From Implementation of the SIPs and
Applicable Federal Air Pollution Control Regulations and Other
Permanent and Enforceable Reductions (Section 107(d)(3)(E)(iii))
    EPA finds that Ohio and Indiana have demonstrated that the observed
air quality improvement in the Cincinnati-Hamilton area is due to
permanent and enforceable reductions in emissions resulting from
implementation of the SIPs, Federal measures, and other state-adopted
measures.
    In making this demonstration, Ohio and Indiana have calculated the
change in emissions between 2005, one of the years used to designate
the Cincinnati-Hamilton area as nonattainment, and 2008, one of the
years the Cincinnati-Hamilton area monitored attainment. The reduction
in emissions and the corresponding improvement in air quality over this
time period can be attributed to a number of regulatory control
measures that the Cincinnati-Hamilton area and upwind areas have
implemented in recent years.
a. Permanent and Enforceable Controls Implemented
    The following is a discussion of permanent and enforceable measures
that have been implemented in the areas:
i. Federal Emission Control Measures
    Reductions in fine particle precursor emissions have occurred
statewide and in upwind areas as a result of Federal emission control
measures, with additional emission reductions expected to occur in the
future. Federal emission control measures include the following.
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur
Standards. These emission control and fuel requirements result in lower
NOX emissions from new cars and light duty trucks, including
sport utility vehicles. The Federal rules were phased in between 2004
and 2009. The EPA has estimated that, by the end of the phase-in
period, NOX emissions will be reduced by 77 percent from new
passenger cars (light-duty vehicles), 86 percent from new light duty
trucks, minivans, and sports utility vehicles and, 69 to 95 percent
from new larger sports utility vehicles, vans, and heavier trucks. EPA
expects fleet wide average NOX emissions to decline as new
vehicles replace older vehicles each year. The Tier 2 standards
included the

requirement to reduce the sulfur content of gasoline to 30 parts per
million (ppm) by January 2006 primarily to improve the durability and
effectiveness of vehicle emission control technology so that new
vehicles could comply with these more stringent NOX
emissions standards.
    The 2007 Heavy-Duty Highway Rule. EPA issued this rule in December
2000. This rule took effect in 2007. It reduced fine particle and
NOX emissions from heavy-duty highway engines and included
requirements to reduce the sulfur content of diesel fuel used by
highway vehicles to 15 ppm beginning in mid-2006 in order to avoid
damage to the advanced PM and NOX controls that are
necessary to comply with stringent emissions standards. The total
program is estimated to achieve a 90 percent reduction in direct
PM2.5 emissions and a 95 percent reduction in NOX
emissions for these new engines using low sulfur diesel, compared to
existing engines using higher sulfur content diesel.
    Nonroad Diesel Rule. In May 2004 EPA promulgated a new rule for
large nonroad diesel engines, such as those used construction,
agriculture, and mining equipment, to be phased in between 2008 and
2014. The rule establishes stringent emissions standards for
NOX and PM for these types of equipment and establishes
limits for the sulfur content of the diesel fuel that they use. The
requirement to reduce sulfur levels in the nonroad diesel fuel by as
much 99 percent allows advanced emission-control systems to be used for
the first time on the engines used in these types of equipment. The
combined engine and fuel rules will reduce NOX and PM
emissions from large nonroad diesel engines by over 90 percent,
compared to current nonroad engines using higher sulfur content diesel.
This rule achieved some emission reductions by 2008 and was fully
implemented by 2010.
Control Measures in Upwind Areas
    Given the significance of sulfates and nitrates in the Cincinnati-
Hamilton area, the area's air quality is strongly affected by
regulation of SO2 and NOX emissions from power
plants.
    NOX SIP Call. On October 27, 1998 (63 FR 57356), EPA
issued a NOX SIP Call requiring the District of Columbia and
22 states to reduce emissions of NOX. Affected states were
required to comply with Phase I of the SIP Call beginning in 2004, and
Phase II beginning in 2007. Emission reductions resulting from
regulations developed in response to the NOX SIP Call are
permanent and enforceable.
    Clean Air Interstate Rule (CAIR). EPA proposed CAIR on January 30,
2004, at 69 FR 4566, promulgated CAIR on May 12, 2005, at 70 FR 25162,
and promulgated associated Federal Implementation Plans (FIPs) on April
28, 2006, at 71 FR 25328, in order to reduce SO2 and
NOX emissions and improve air quality in many areas across
the Eastern United States. However, on July 11, 2008, the United States
Court of Appeals for the District of Columbia Circuit (DC Circuit or
Court) issued its decision to vacate and remand both CAIR and the
associated CAIR FIPs in their entirety (North Carolina v. EPA, 531 F.3d
836 (DC Cir. 2008)). EPA petitioned for a rehearing, and the Court
issued an order remanding CAIR and the CAIR FIPs to EPA without vacatur
(North Carolina v. EPA, 550 F.3d 1176 (DC Cir. 2008)). The Court,
thereby, left CAIR in place in order to ``temporarily preserve the
environmental values covered by CAIR'' until EPA replaced it with a
rule consistent with the Court's opinion (id. at 1178). The Court
directed EPA to ``remedy CAIR's flaws'' consistent with the July 11,
2008, opinion, but declined to impose a schedule on EPA for completing
this action (id).
    On August 8, 2011, at 76 FR 48208, EPA promulgated the Cross-State
Air Pollution Rule (CSAPR) to address interstate transport of emissions
and resulting secondary air pollutants and to replace CAIR. CAIR, among
other things, required NOX and SO2 emission
reductions that contributed to the air quality improvement in the
Cincinnati-Hamilton nonattainment area. CAIR emission reduction
requirements limit emissions through 2011; CSAPR requires similar or
greater emission reductions in the relevant areas in 2012 and beyond.
CSAPR requires substantial reductions of SO2 and
NOX emissions from Electric Generating Units (EGUs or power
plants) across most of Eastern United States, with implementation
beginning on January 1, 2012. In particular, this rule requires
reduction of these emissions to levels well below the levels that led
to attainment of the 1997 annual PM2.5 standard in the
Cincinnati-Hamilton nonattainment area. Because the emission reduction
requirements of CAIR are enforceable through the 2011 control period,
and because CSAPR has now been promulgated to address the requirements
previously addressed by CAIR and gets similar or greater reductions in
the relevant areas in 2012 and beyond, EPA has determined that the EGU
emission reductions that helped lead to attainment in the Cincinnati-
Hamilton area can now be considered permanent and enforceable and that
the requirement of CAA section 107(d)(3)(E)(iii) has now been met.
b. Emission Reductions
    Ohio and Indiana developed emissions inventories for
NOX, direct PM2.5, and SO2 for 2005,
one of the years used to designate the areas as nonattainment, and
2008, one of the years the Cincinnati-Hamilton area monitored
attainment of the standard.
    EGU SO2 and NOX emissions were derived from
EPA's Clean Air Market's acid rain database. These emissions reflect
Ohio and Indiana's NOX emission budgets resulting from EPA's
NOX SIP call. The 2008 emissions from EGUs reflect Ohio and
Indiana's emission caps under CAIR. All other point source emissions
were obtained from Ohio and Indiana's source facility emissions
reporting.
    Area source emissions for the Cincinnati-Hamilton area for 2005
were taken from Ohio and Indiana's 2005 periodic emissions
inventories.\3\ These 2005 area source emission estimates were
extrapolated to 2008. Source growth factors were supplied by the Lake
Michigan Air Directors Consortium (LADCO).
---------------------------------------------------------------------------

    \3\ Periodic emission inventories are derived by States every
three years and reported to the EPA. These periodic emission
inventories are required by the Federal Consolidated Emissions
Reporting Rule, codified at 40 CFR Subpart A. EPA revised these and
other emission reporting requirements in a final rule published on
December 17, 2008, at 73 FR 76539.
---------------------------------------------------------------------------

    Nonroad mobile source emissions were extrapolated from nonroad
mobile source emissions reported in EPA's 2005 National Emissions
Inventory (NEI). Contractors were employed by LADCO to estimate
emissions for commercial marine vessels and railroads.
    On-road mobile source emissions were calculated using EPA's mobile
source emission factor model, MOVES2010a, in conjunction with
transportation model results developed by the Ohio-Kentucky-Indiana
Regional Council of Governments (OKI).
    All emissions estimates discussed below were documented in the
submittals and Appendices of Ohio and Indiana's redesignation request
submittal from January 25, 2011, and December 9, 2010, respectively.
For these data and additional emissions inventory data, the reader is
referred to EPA's digital docket for this rule, http://www.regulations.gov, for docket numbers EPA-R05-OAR-2011-0106 (Indiana)
or EPA-R05-OAR-2011-0017 (Ohio), which include digital copies of Ohio
and Indiana's submittals.

    Emissions data for the entire Cincinnati-Hamilton area (OH-IN-KY)
are shown in Tables 1 through 4 below.

Table 1--Comparison of 2005 and 2008 NOX Emission Totals by Source Sector (tpy) for the Cincinnati-Hamilton Area
                                                   (OH-IN-KY)
----------------------------------------------------------------------------------------------------------------
                                                                                NOX
                                                           -----------------------------------------------------
                          Sector                                                                Net change  2005-
                                                                  2005              2008              2008
----------------------------------------------------------------------------------------------------------------
Point (Non-EGU)...........................................         10,371.70          9,790.50           -581.20
EGU.......................................................         55,930.44         46,853.89         -9,076.55
Area......................................................          7,810.74          7,966.67            155.93
Nonroad...................................................         12,480.57         10,561.92         -1,918.65
On-road...................................................         71,919.89         64,471.22         -7,448.67
                                                           -----------------------------------------------------
    Total.................................................        158,513.34        139,644.20        -18,869.14
----------------------------------------------------------------------------------------------------------------

  Table 2--Comparison of 2005 and 2008 Direct PM2.5 Emission Totals by Source Sector (tpy) for the Cincinnati-
                                            Hamilton Area (OH-IN-KY)
----------------------------------------------------------------------------------------------------------------
                                                                                Direct PM2.5
                                                           -----------------------------------------------------
                          Sector                                                                Net change  2005-
                                                                  2005              2008              2008
----------------------------------------------------------------------------------------------------------------
Point (Non-EGU)...........................................          1,352.79          1,458.52            105.73
EGU.......................................................          2,062.91          1,633.15           -429.76
Area......................................................          1,828.55          1,864.80             36.25
Nonroad...................................................          4,469.27          3,807.04           -662.23
On-road...................................................          2,810.30          2,679.85           -130.45
                                                           -----------------------------------------------------
    Total.................................................         12,523.79         11,443.36          -1080.46
----------------------------------------------------------------------------------------------------------------

Table 3--Comparison of 2005 and 2008 SO2 Emission Totals by Source Sector (tpy) for the Cincinnati-Hamilton Area
                                                   (OH-IN-KY)
----------------------------------------------------------------------------------------------------------------
                                                                                SO2
                                                           -----------------------------------------------------
                          Sector                                                                Net change  2005-
                                                                  2005              2008              2008
----------------------------------------------------------------------------------------------------------------
Point (Non-EGU)...........................................         15,532.09         13,483.92         -2,048.17
EGU.......................................................        218,395.56         98,334.17       -150,061.39
Area......................................................           3494.39           3520.77             26.38
Nonroad...................................................          1,057.16            416.87           -640.29
On-road...................................................            392.00            277.59           -114.41
                                                           -----------------------------------------------------
    Total.................................................        238,871.20        116,033.32       -152,837.88
----------------------------------------------------------------------------------------------------------------

    Table 1 shows that the entire Cincinnati-Hamilton area reduced
NOX emissions by 18,869.14 tpy between 2005 and 2008. Table
2 shows that the Cincinnati-Hamilton area reduced direct
PM2.5 emissions by 1,080.46 tpy between 2005 and 2008. Table
3 shows that the Cincinnati-Hamilton area reduced SO2
emissions by 152,837.88 tpy between 2005 and 2008.
    Because PM2.5 concentrations in the Cincinnati-Hamilton
area are significantly impacted by the transport of sulfates and
nitrates, the area's air quality is strongly affected by regulation of
SO2 and NOX emissions from power plants. Table 4,
below, presents statewide EGU emissions data compiled by EPA's Clean
Air Markets Division for the years 2002 and 2008. Emissions for 2008
reflect implementation of CAIR.

            Table 4--Comparison of 2002 and 2008 Statewide EGU NOX and SO2 Emissions (tpy) for States Impacting the Cincinnati-Hamilton Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                NOX                                             SO2
                                                         -----------------------------------------------------------------------------------------------
                          State                                                             Net change                                      Net change
                                                               2002            2008          2002-2008         2002            2008          2002-2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama.................................................         161,559         112,625         -48,934         448,248         357,546         -90,702
Illinois................................................         174,247         119,930         -54,317         353,699         257,357         -96,342
Indiana.................................................         281,146         190,092         -91,054         778,868         565,459        -213,409

Kentucky................................................         198,599         157,903         -40,696         482,653         344,356        -138,297
Michigan................................................         132,623         107,624         -25,000         342,999         326,501         -16,498
Missouri................................................         139,799          88,742         -51,057         235,532         258,269          22,737
Ohio....................................................         370,497         235,049        -135,448       1,132,069         709,444        -422,625
Pennsylvania............................................         200,909         183,658         -17,251         889,766         831,915         -57,851
Tennessee...............................................         155,996          85,641         -70,356         336,995         208,069        -128,926
West Virginia...........................................         225,371          99,484        -125,887         507,110         301,574        -205,536
Wisconsin...............................................          88,970          47,794         -41,175         191,257         129,694         -61,563
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................       2,129,716       1,428,541        -701,175       5,699,195       4,290,184      -1,409,011
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 4 shows that states impacting the Cincinnati-Hamilton area
reduced NOX and SO2 emissions from EGUs by
701,175 tons per year (tpy) and 1,409,011 tpy, respectively, between
2002 and 2008.
    Based on the information summarized above, Ohio and Indiana have
adequately demonstrated that the improvement in air quality is due to
permanent and enforceable emissions reductions.
4. Ohio and Indiana Have Fully Approved Maintenance Plans Pursuant to
Section 175A of the CAA (Section 107(d)(3)(E)(iv))
    In conjunction with Ohio and Indiana's requests to redesignate the
Cincinnati-Hamilton nonattainment area to attainment status, Ohio and
Indiana have submitted SIP revisions to provide for maintenance of the
1997 annual PM2.5 NAAQS in the area through 2021.
a. What is required in a maintenance plan?
    Section 175A of the CAA sets forth the required elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. Under section 175A, the plan must demonstrate continued
attainment of the applicable NAAQS for at least ten years after EPA
approves a redesignation to attainment. Eight years after
redesignation, the state must submit a revised maintenance plan which
demonstrates that attainment will continue to be maintained for ten
years following the initial ten-year maintenance period. To address the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures with a schedule for implementation as EPA
deems necessary to assure prompt correction of any future annual
PM2.5 violations.
    The September 4, 1992, John Calcagni memorandum provides additional
guidance on the content of a maintenance plan. The memorandum states
that a maintenance plan should address the following items: The
attainment emissions inventories, a maintenance demonstration showing
maintenance for the ten years of the maintenance period, a commitment
to maintain the existing monitoring network, factors and procedures to
be used for verification of continued attainment of the NAAQS, and a
contingency plan to prevent or correct future violations of the NAAQS.
b. Attainment Inventory
    The states developed emissions inventories for NOX,
direct PM2.5, and SO2 for 2008, one of the years
used to demonstrate monitored attainment of the 1997 annual
PM2.5 standard, as described in section IV.A.3.b., above.
The attainment level of emissions is summarized in Tables 1 through 4,
above.
c. Demonstration of Maintenance
    Along with the redesignation request, the two states submitted
revisions to their PM2.5 SIPs to include maintenance plans
for the Cincinnati-Hamilton area, as required by section 175A of the
CAA. These demonstrations show maintenance of the annual
PM2.5 standard through 2021 by showing that current and
future emissions of NOX, directly emitted PM2.5
and SO2 for the area remain at or below attainment year
emission levels. A maintenance demonstration need not be based on
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v.
EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100
(October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003).
    Ohio and Indiana are using emissions inventory projections for the
years 2015, and 2021 to demonstrate maintenance. The projected
emissions were estimated by Ohio and Indiana, with assistance from
LADCO, and the local Metropolitan Planning Organization (MPO), OKI
using the MOVES2010a model. Emissions data are shown in Table 5, below.

Table 5--Comparison of 2008, 2015, and 2021 NOX, Direct PM2.5, and SO2 Emission Totals (tpy) for the Cincinnati-
                                                  Hamilton Area
----------------------------------------------------------------------------------------------------------------
                                                                                Net change
                                                2008              2015              2021           (2008-2021)
----------------------------------------------------------------------------------------------------------------
PM2.5...................................          8,904.64          8,634.55          8,202.63           -702.01
NOX.....................................        148,706.15        105,712.02         78,819.13        -69,887.02
SO2.....................................        117,016.14        112,250.26         88,510.27        -28,505.87
----------------------------------------------------------------------------------------------------------------

    Table 5 shows that the NOX emissions in the Cincinnati-
Hamilton area are 69.887.02 tpy less in 2021, the outermost year of the
maintenance plan, than in attainment year 2008. Direct PM2.5
emissions are 702.01 tpy lower in

2021 than in 2008, and SO2 emissions are 28,505.87 tpy lower
in 2021 than in 2008.
    Because the PM2.5 concentrations in the Cincinnati-
Hamilton area are significantly impacted by the transport of sulfates
and nitrates, the area's air quality is strongly affected by regulation
of SO2 and NOX emissions from power plants. Table
6, below, presents statewide EGU emissions data compiled for 2008 and
2014 and beyond. Emissions for 2008 reflect implementation of CAIR and
an attainment year, while 2014 emissions reflect budgets established in
the CSAPR.

       Table 6--Comparison of 2008 and 2014 and Beyond Statewide EGU NOX and SO2 Emissions (tpy) for States Impacting the Cincinnati-Hamilton Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  NOX                                             SO2
                                           -----------------------------------------------------------------------------------------------
                   State                                       2014 and       Net change                       2014 and       Net change
                                                 2008           beyond         2008-2014         2008           beyond         2008-2014
------------------------------------------------------------------------------------------------------------------------------------------
Alabama...................................         112,625          69,192         -43,433         357,547         173,566        -183,981
Illinois..................................         119,930          49,162         -70,767         257,357         132,647        -124,710
Indiana...................................         190,092         110,740         -79,352         565,459         195,046        -370,413
Kentucky..................................         157,903          76,088         -81,815         344,356         116,927        -227,429
Michigan..................................         107,624          60,907         -46,717         326,501         162,632        -163,869
Missouri..................................          88,742          52,103         -36,639         258,269         186,899         -71,370
Ohio......................................         235,049          89,753        -145,296         709,444         178,975        -530,469
Pennsylvania..............................         183,658         118,981         -64,676         831,915         125,545        -706,370
Tennessee.................................          85,641          20,512         -65,129         208,069          64,721        -143,348
West Virginia.............................          99,484          53,975         -45,509         301,574          84,344        -217,230
Wisconsin.................................          47,794          33,537         -14,257         129,694          50,137         -79,557
                                           -------------------------------------------------------------------------------------------------------------
    Total.................................       1,428,541         734,951        -693,590       4,290,185       1,471,439      -2,818,746
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 6 shows that NOX emissions from EGUs are projected
to decrease by 693,590 tpy from 2008 to 2014 and beyond in states
impacting the Cincinnati-Hamilton area. Over that same time period,
SO2 emissions from EGUs are projected to decrease by
2,818,746 in states impacting the Cincinnati-Hamilton area.
    Based on the information summarized above, Ohio and Indiana have
adequately demonstrated maintenance of the PM2.5 standard in
this area for a period extending in excess of ten years from the date
that EPA is completing rulemaking on the state's redesignation request.
d. Monitoring Network
    Ohio currently operates nine monitors for purposes of determining
attainment with the annual PM2.5 standard in the Cincinnati-
Hamilton area. Kentucky currently operates one monitor for the area.
Currently, Indiana operates no monitors for the Cincinnati-Hamilton
area since the state makes up only a small portion of the non-
attainment area, and EPA has determined that the monitors maintained by
both Ohio and Kentucky constitute an adequate monitoring network. Ohio
has committed to continue to operate and maintain its monitors and will
consult with EPA prior to making any changes to the existing monitoring
network. Ohio remains obligated to continue to quality-assure
monitoring data in accordance with 40 CFR part 58 and enter all data
into EPA's Air Quality System (AQS) database in accordance with Federal
guidelines.
e. Verification of Continued Attainment
    Continued attainment of the annual PM2.5 NAAQS in the
Cincinnati-Hamilton area depends, in part, on the state's efforts
toward tracking indicators of continued attainment during the
maintenance period. Ohio and Indiana's plan for verifying continued
attainment of the annual PM2.5 standard in the Cincinnati-
Hamilton area consists of continued ambient PM2.5 monitoring
in accordance with the requirements of 40 CFR part 58. The two states
will also continue to develop and submit periodic emission inventories
as required by the Federal Consolidated Emissions Reporting Rule
(codified at 40 CFR 51 Subpart A) to track future levels of emissions.
f. Contingency Plan
    The contingency plan provisions are designed to promptly correct or
prevent a violation of the NAAQS that might occur after redesignation
of an area to attainment. Section 175A of the CAA requires that a
maintenance plan include such contingency measures as EPA deems
necessary to assure that the state will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the contingency measures to be adopted, a schedule and
procedure for adoption and implementation of the contingency measures,
and a time limit for action by the state. The state should also
identify specific indicators to be used to determine when the
contingency measures need to be adopted and implemented. The
maintenance plan must include a requirement that the state will
implement all measures with respect to control of the pollutant(s) that
were contained in the SIP before redesignation of the area to
attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Ohio and Indiana have
adopted contingency plans for the Cincinnati-Hamilton area to address
possible future annual PM2.5 air quality problems.
    Under Indiana's plan, if a violation of the 1997 annual
PM2.5 standard occurs, Indiana will implement an ``Action
Level Response''. Unless the violation is due to an atypical
unfavorable meteorological condition, exceptional event, malfunction or
noncompliance with a permit condition or rule requirement, Indiana will
adopt and implement one or more of its contingency measures. Indiana
has provided clarification that the state considers the term ``an
atypical unfavorable meteorological condition'' to mean an exceptional
event as determined by EPA. EPA agrees with and relies upon this
clarification in approving Indiana's contingency measures provisions.
(See docket EPA-R05-OAR-2011-0106 for clarification communications).
    If a violation occurs, it will trigger an Action Level Response;
that is, Indiana will adopt and implement one or more

control measures from its list of candidate measures within 18 months
from the end of the year in which monitored air quality triggering the
response occurs. Indiana's candidate contingency measures include the
following:
    i. Alternative fuel and diesel retrofit programs for fleet vehicle
operations;
    ii. NOX or SO2 controls on new minor sources;
    iii. Wood stove change out program;
    iv. Idle restrictions; and
    v. Broader geographic applicability of existing measures.
    Ohio's contingency measures include a Warning Level Response and an
Action Level Response. An initial Warning Level Response is triggered
when the average weighted annual mean for one year exceeds 15.5 [mu]g/
m\3\. In that case, a study will be conducted to determine if the
emissions trends show increases; if action is necessary to reverse
emissions increases, Ohio will follow the same procedures for control
selection and implementation as for an Action Level Response.
    The Action Level Response will be prompted by any one of the
following: A Warning Level Response study that shows emissions
increases, a weighted annual mean over a two-year average that exceeds
the standard, or a violation of the standard. If an Action Level
Response is triggered, Ohio will adopt and implement appropriate
control measures within 18 months from the end of the year in which
monitored air quality triggering a response occurs.
    Ohio's candidate contingency measures include the following:
    i. ICI Boilers--SO2 and NOX controls;
    ii. Process heaters;
    iii. EGUS;
    iv. Internal combustion engines;
    v. Combustion turbines;
    vi. Other sources > 100 TPY;
    vii. Fleet vehicles;
    viii. Concrete manufacturers and;
    ix. Aggregate processing plants.
    Ohio and Indiana further commit to conduct ongoing review of their
data, and if monitored concentrations or emissions are trending upward,
Ohio and Indiana commit to take appropriate steps to avoid a violation
if possible. Ohio and Indiana commit to continue implementing SIP
requirements upon and after redesignation.
    EPA believes that both Ohio and Indiana's contingency plans, as
well as the commitment to continue implementing any SIP requirements,
satisfy the pertinent requirements of section 175A(d).
g. Provisions for Future Updates of the Annual PM2.5
Maintenance Plan
    As required by section 175A(b) of the CAA, Ohio and Indiana have
each committed to submit to the EPA an updated maintenance plan eight
years after redesignation of the Cincinnati-Hamilton area to attainment
of the 1997 annual PM2.5 standard to cover an additional
ten-year period beyond the initial ten-year maintenance period. As
required by section 175A of the CAA, Ohio and Indiana have committed to
retain the control measures contained in the SIP prior to
redesignation, or submit to EPA, as a SIP revision, any changes to its
rules or emission limits applicable to SO2, NOX
or direct PM2.5 sources as required for maintenance of the
annual PM2.5 standard in the Cincinnati-Hamilton area.
    EPA has concluded that the maintenance plans adequately address the
requisite five basic components: Attainment inventory, maintenance
demonstration, monitoring network, verification of continued
attainment, and a contingency plan. Thus EPA is fully approving the
maintenance plan SIP revisions submitted by Ohio and Indiana for the
Cincinnati-Hamilton area as meeting the requirements of section 175A of
the CAA.

B. Adequacy of Ohio and Indiana's MVEBs

1. How are MVEBs developed and what are the MVEBs for the Cincinnati-
Hamilton area?
    Under the CAA, states are required to submit, at various times,
control strategy SIP revisions and maintenance plans for
PM2.5 nonattainment areas and for areas seeking
redesignations to attainment of the PM2.5 standard. These
emission control strategy SIP revisions (e.g., RFP and attainment
demonstration SIP revisions) and maintenance plans create MVEBs based
on on-road mobile source emissions for criteria pollutants and/or their
precursors to address pollution from on-road transportation sources.
The MVEBs are the portions of the total allowable emissions that are
allocated to highway and transit vehicle use that, together with
emissions from other sources in the area, will provide for attainment,
RFP or maintenance, as applicable.
    Under 40 CFR part 93, a MVEB for an area seeking a redesignation to
attainment is established for the last year of the maintenance plan and
could also be established for an interim year or years. The MVEB serves
as a ceiling on emissions from an area's planned transportation system.
The MVEB concept is further explained in the preamble to the November
24, 1993, transportation conformity rule (58 FR 62188).
    Under section 176(c) of the CAA, new transportation plans and
transportation improvement programs (TIPs) must be evaluated to
determine if they conform to the purpose of the area's SIP. Conformity
to the SIP means that transportation activities will not cause new air
quality violations, worsen existing air quality violations, or delay
timely attainment of the NAAQS or any required interim milestone. If a
transportation plan or TIP does not conform, most new transportation
projects that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment
strategies, rate-of-progress plans, and maintenance plans, EPA must
affirmatively find adequate and/or approve the MVEBs for use in
determining transportation conformity before the MVEBs can be used.
Once EPA affirmatively approves and/or finds the submitted MVEBs to be
adequate for transportation conformity purposes, the MVEBs must be used
by state and Federal agencies in determining whether proposed
transportation plans and TIPs conform to the SIP as required by section
176(c) of the CAA. EPA's substantive criteria for determining the
adequacy of MVEBs are set out in 40 CFR 93.118(e)(4). Additionally, to
approve a motor vehicle emissions budget EPA must complete a thorough
review of the SIP, in this case the PM2.5 maintenance plans,
and conclude that the SIP will achieve its overall purpose, in this
case providing for maintenance of the 1997 annual PM2.5
standard in the Indiana and Ohio portions of the Cincinnati area.
    EPA's process for determining adequacy of a MVEB consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEB during a
public comment period; and, (3) EPA taking action on the MVEB. The
process for determining the adequacy of submitted SIP MVEBs is codified
at 40 CFR 93.118.
    The maintenance plans submitted by Ohio and Indiana for the
Cincinnati-Hamilton area contain new primary PM2.5 and
NOX MVEBs for the area for the years 2015 and 2021. The
motor vehicle emissions budgets were calculated using MOVES2010(a).
After the adequacy finding and approval of the budgets become
effective, the

budgets will have to be used in future conformity determinations and
regional emissions analyses prepared by the OKI, will have to be based
on the use of MOVES2010a or the most recent version of MOVES required
to be used in transportation conformity determinations.\4\ The states
have determined the 2015 MVEBs for the combined Ohio and Indiana
portions of Cincinnati-Hamilton area to be 1,678.60 tpy for primary
PM2.5 and 35,723.83 tpy for NOX. Ohio and Indiana
have determined the 2021 MVEBs for their combined portions of the
Cincinnati-Hamilton area to be 1,241.19 tpy for primary
PM2.5 and 21,747.71 tpy for NOX. These MVEBs
exceed the on-road mobile source primary PM2.5 and
NOX emissions projected by the states for 2015 and 2021.
Ohio and Indiana have decided to include ``safety margins'' as provided
for in 40 CFR 93.124(a) (described below) of 79.93 tpy and 112.84 tpy
for primary PM2.5 and 4,659.63 tpy and 2,836.65 tpy for
NOX in the 2015 and 2021 MVEBs, respectively, to provide for
on-road mobile source growth. Ohio and Indiana did not provide emission
budgets for SO2, VOCs, and ammonia because it concluded,
consistent with EPA's presumptions regarding these precursors, that
emissions of these precursors from on-road motor vehicles are not
significant contributors to the area's PM2.5 air quality
problem.
---------------------------------------------------------------------------

    \4\ EPA described the circumstances under which an area would be
required to use MOVES in transportation conformity determinations in
its March 2, 2010, Federal Register notice officially releasing
MOVES2010 for use in SIPs and transportation conformity
determinations. (75 FR 9413)
---------------------------------------------------------------------------

    In the Ohio and Indiana portions of the Cincinnati-Hamilton area,
the motor vehicle budgets including the safety margins and motor
vehicle emission projections for both NOX and
PM2.5 are lower than the levels in the attainment year.
    EPA has reviewed the submitted budgets for 2015 and 2021 including
the added safety margins using the conformity rule's adequacy criteria
found at 40 CFR 93.118(e)(4) and the conformity rule's requirements for
safety margins found at 40 CFR 93.124(a). EPA has also completed a
thorough review of the maintenance plan for the Ohio and Indiana
portions of the Cincinnati-Hamilton area. Based on the results of this
review of the budgets and the maintenance plans EPA is approving the
2015 and 2021 direct PM2.5 and NOX budgets
including the requested safety margins for the Ohio and Indiana
portions of the Cincinnati-Hamilton area. Additionally, EPA, through
this rulemaking, has found the submitted budgets to be adequate for use
to determine transportation conformity in the Indiana and Ohio portions
of the area, because EPA has determined that the area can maintain the
1997 annual PM2.5 NAAQS for the relevant maintenance period
with on-road mobile source emissions at the levels of the MVEBs
including the requested safety margins. These budgets must be used in
conformity determinations made on or after the effective date of this
direct final rulemaking (40 CFR 93.118(f)(iii)). Additionally,
transportation conformity determinations made after the effective date
of this notice must be based on regional emissions analyses using
MOVES2010a or a more recent version of MOVES that has been approved for
use in conformity determinations.\5\
---------------------------------------------------------------------------

    \5\ EPA described the circumstances under which an area would be
required to use MOVES in transportation conformity determinations in
its March 2, 2010 Federal Register notice officially releasing
MOVES2010 for use in SIPs and transportation conformity
determinations. (75 FR 9413)
---------------------------------------------------------------------------

2. What is a safety margin?
    A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. As shown in Table 5, the
combination of the Ohio and Indiana portions of the Cincinnati-Hamilton
area is projected to have safety margins for NOX and direct
PM2.5 of 42,994.13 tpy and 270.09 tpy in 2015, and 69,887.02
tpy and 702.01 tpy for NOX and PM2.5 in 2021 (the
difference between the attainment year, 2008, emissions and the
projected years of 2015 and 2021 emissions for all sources in the
Cincinnati-Hamilton area). Even if emissions exceeded expectations by
the full level of the safety margin, the area would still demonstrate
maintenance since emission levels would equal those in the attainment
year.
    The transportation conformity rule allows areas to allocate all or
a portion of a ``safety margin'' to the area's motor vehicle emissions
budgets (40 CFR 92.124(a)). The MVEBs requested by Ohio and Indiana
contain NOX safety margins for mobile sources in 2015 and
2021 and PM2.5 safety margins for mobile sources in 2015 and
2021 are much smaller than the allowable safety margins reflected in
the total emissions for the Cincinnati-Hamilton area. The state is not
requesting allocation to the MVEBs of the entire available safety
margins reflected in the demonstration of maintenance. Therefore, even
though the state is requesting MVEBs that exceed the projected on-road
mobile source emissions for 2015 and 2021 contained in the
demonstration of maintenance, the increase in on-road mobile source
emissions that can be considered for transportation conformity purposes
is well within the safety margins of the overall PM2.5
maintenance demonstration.
    Therefore, EPA believes that the requested budgets, including the
requested portion of the safety margins, provide for a quantity of
mobile source emissions that would be expected to maintain the
PM2.5 standard. Once allocated to mobile sources, these
portions of the safety margins will not be available for use by other
sources.
3. What action is EPA taking on the submitted motor vehicle emissions
budgets?
    EPA, through this rulemaking, has found adequate and is approving
the MVEBs for use to determine transportation conformity in the Ohio
and Indiana portions of the Cincinnati-Hamilton area, because EPA has
determined that the area can maintain attainment of the 1997 annual
PM2.5 NAAQS for the relevant maintenance period with mobile
source emissions at the levels of the MVEBs including the requested
safety margins. These budgets must be used in conformity determinations
made on or after the effective date of this direct final rulemaking,
December 19, 2011. (40 CFR 93.118(f)(iii)) Additionally, the
determinations made after the effective date of this notice must be
based on regional emissions analyses using MOVES2010a or a more recent
version of MOVES that has been approved for use in conformity
determinations.\6\
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    \6\ EPA described the circumstances under which an area would be
required to use MOVES in transportation conformity determinations in
its March 2, 2010, Federal Register notice officially releasing
MOVES2010 for use in SIPs and transportation conformity
determinations. (75 FR 9413)
---------------------------------------------------------------------------

C. 2005 Comprehensive Emissions Inventory

    As discussed above in section IV.A.2.a.ii., section 172(c)(3) of
the CAA requires areas to submit a comprehensive emissions inventory.
Ohio and Indiana submitted 2005 base year emissions inventories that
meet this requirement. Emissions contained in the submittals cover the
general source categories of point sources, area sources, on-road
mobile sources, and nonroad mobile sources.
    For the point source sector, EGU SO2 and NOX
emissions were derived from

EPA's Clean Air Market's database. All other point source emissions
were obtained from Ohio and Indiana's source facility emissions
reporting.
    Area source emissions were extrapolated from Ohio and Indiana's
2005 periodic emissions inventories. Source growth factors were
supplied by LADCO.
    Nonroad mobile source emissions were extrapolated from nonroad
mobile source emissions reported in EPA's 2005 NEI. LADCO estimated
emissions for commercial marine vessels and railroads.
    On-road mobile source emissions were calculated using EPA's mobile
source emission factor model, MOVES2010a, in conjunction with roadway
network traffic information prepared by OKI.
    All emissions discussed in Table 1 were documented in the submittal
and the Appendices of Ohio and Indiana's redesignation request
submittals. EPA has reviewed Ohio and Indiana's documentation of the
emissions inventory techniques and data sources used for the derivation
of the 2005 emissions estimates and has found that Ohio and Indiana
have thoroughly documented the derivation of these emissions
inventories. The submittals for both the Ohio and Indiana state that
the 2005 emissions inventories are currently the most complete
emissions inventories for PM2.5 and PM2.5
precursors in the Cincinnati-Hamilton area. Based upon EPA's review, we
conclude that the 2005 emissions inventories areas complete and
accurate as possible given the input data available to the states.

V. Summary of Actions

    EPA has previously made the determination that the Cincinnati-
Hamilton area has attained the 1997 annual PM2.5 standard.
EPA is determining that the area continues to attain the standard and
that the Ohio and Indiana portions of the area meet the requirements
for redesignation to attainment of that standard under section
107(d)(3)(E) of the CAA. EPA is thus approving the requests from Ohio
and Indiana to change the legal designation of their portions of the
Cincinnati-Hamilton area from nonattainment to attainment for the 1997
annual PM2.5 NAAQS. EPA is approving Ohio and Indiana's 1997
annual PM2.5 maintenance plans for the Cincinnati-Hamilton
area as revisions to the respective SIPs because the plans meet the
requirements of section 175A of the CAA. EPA is approving the 2005
emissions inventories for primary PM2.5, NOX, and
SO2, documented in Indiana's and Ohio's December 9, 2010,
and January 25, 2011, submittals as satisfying the requirement in
section 172(c)(3) of the CAA for a comprehensive, current emission
inventory. Finally, EPA finds adequate and is approving 2015 and 2021
primary PM2.5 and NOX MVEBs submitted from each
state for the Ohio and Indiana portions of the Cincinnati-Hamilton
area. These MVEBs will be used in future transportation conformity
analyses for the area after the effective date for the adequacy finding
and approval.

VI. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, 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 economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; 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 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 state, 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. These actions are not ``major rules'' 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 December 19, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than

file an immediate petition for judicial review of this direct final
rule, so that EPA can withdraw these direct final rules and address the
comment in the proposed rulemaking. These actions may not be challenged
later in proceedings to enforce their 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

    Air pollution control, National parks, Wilderness areas.

    Dated: October 7, 2011.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR Parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

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

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

Subpart P--Indiana

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

Sec.  52.776  Control strategy: Particulate matter.

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

Subpart KK--Ohio

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

Sec.  52.1880  Control strategy: Particulate matter.

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

PART 81--[AMENDED]

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

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

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

Sec.  81.315  Indiana.

* * * * *

                                                  Indiana PM2.5
                                                 [Annual NAAQS]
----------------------------------------------------------------------------------------------------------------
                                                                                Designation \a\
                       Designated area                       ---------------------------------------------------
                                                                      Date \1\                    Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Cincinnati-Hamilton, IN: Dearborn County....................        December 19, 2011               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.

* * * * *

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

Sec.  81.336  Ohio.

* * * * *

                                                   Ohio PM2.5
                                                 [Annual NAAQS]
----------------------------------------------------------------------------------------------------------------
                                                                                Designation \a\
                       Designated area                       ---------------------------------------------------
                                                                      Date \1\                    Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Cincinnati-Hamilton, Ohio:
    Butler County...........................................
    Clermont County.........................................
    Hamilton County.........................................

    Warren County...........................................        December 19, 2011               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. 2011-26887 Filed 10-18-11; 8:45 am]
BILLING CODE 6560-50-P