2016-17054. Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

In accordance with the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is proposing to redesignate the Ohio portion of the Campbell-Clermont KY-OH sulfur dioxide (SO₂) nonattainment area from nonattainment to attainment. The Ohio portion of this area consists of Pierce Township in Clermont County, Ohio. EPA is also proposing to approve Ohio's maintenance plan submitted on August 11, 2015. The primary emission source in the area has permanently closed, and the air quality in the area is now meeting the SO₂ standard.

DATES:

Comments must be received on or before August 19, 2016.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0599 at http://www.regulations.gov or via email to [e-mail]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

I. Background

II. Redesignation Requirements

III. Determination of Attainment

IV. Ohio's Section 110(k) SIP

V. Permanent and Enforceable Emission Reductions

VI. Requirements for the Area Under Section 110 and Part D

VII. Maintenance Plan

VIII. What action is EPA taking?

IX. Statutory and Executive Order Reviews

I. Background

On June 2, 2010 (75 FR 35520, June 22, 2010), EPA established a revised primary SO₂ national ambient air quality standard (NAAQS) of 75 parts per billion (ppb), which is met at a monitoring site when the three-year average of the 99th percentile of daily maximum one-hour concentrations does not exceed 75 ppb. On August 5, 2013 (78 FR 47191), EPA published its initial air quality designations for the SO₂ NAAQS based upon air quality monitoring data for calendar years 2009-2011. In that action, the Campbell-Clermont KY-OH area was designated nonattainment for the SO₂ NAAQS. The Campbell-Clermont KY-OH nonattainment area is comprised of Pierce Township in Clermont County, Ohio, and five census tracts in Campbell County, Kentucky. The Ohio portion of the nonattainment area contains the Walter C. Beckjord power plant (Beckjord plant). The Kentucky portion of the nonattainment area has less than nine tons of total SO₂ emissions per year, but it contains the SO₂ monitor which had violated the SO₂ standard as of 2011.

By April 4, 2015, Ohio and Kentucky were required to submit nonattainment plan SIPs that meet the requirements of sections 172(c) and 191-192 of the CAA, and provide for attainment of the NAAQS as expeditiously as practicable, but no later than October 4, 2018. Ohio's analysis found the Beckjord plant to be the main contributor to SO₂ monitored levels in the nonattainment area. In 2011, the Beckjord plant had reported 90,835 tons of SO₂ emissions. However, in late 2014, the Beckjord plant permanently ceased operations. Its coal-fired electricity generating units were shut down as of September 2014, and its oil-fired units ceased operations by the end of 2014. Sulfur dioxide emissions at the Beckjord plant totaled 32,603 tons in 2014, and zero tons in 2015. Currently, the total point, area, and mobile source SO₂ emissions in the entire Campbell-Clermont KY-OH nonattainment area are approximately 17 tons per year (tpy). Because of the significant, permanent and enforceable reduction in SO₂ emissions affecting the nonattainment area, and because the Campbell County SO₂ monitor's three-year SO₂ design value ^[1] for 2012-2014 had fallen below the SO₂ NAAQS, Ohio chose to submit a redesignation request in 2015, in lieu of a nonattainment SIP. On August 11, 2015, the Ohio Environmental Protection Agency (Ohio EPA) submitted its request to EPA to redesignate the Ohio portion of the Campbell-Clermont KY-OH nonattainment area to attainment. For the reasons set forth in this document, EPA is proposing to redesignate the area to attainment.

II. Redesignation Requirements

Under CAA section 107(d)(3)(E), there are five criteria which must be met before a nonattainment area may be redesignated to attainment.

1. EPA has determined that the relevant NAAQS has been attained in the area.

2. The applicable implementation plan has been fully approved by EPA under section 110(k).

3. EPA has determined that improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the SIP, Federal regulations, and other permanent and enforceable reductions.

4. EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A of the CAA.

5. The State has met all applicable requirements for the area under section 110 and part D.

III. Determination of Attainment

The first requirement for redesignation is to demonstrate that the standard has been attained in the area. As stated in the April 2014 “Guidance for 1-Hour SO₂ Nonattainment Area SIP Submissions,” for SO₂, there are two components needed to support an attainment determination: A review of representative air quality monitoring data, and a further analysis, generally requiring air quality modeling, to demonstrate that the entire area is attaining the applicable standard, based on current actual emissions or the fully implemented control strategy. Ohio has addressed both components.

Under EPA regulations at 40 CFR 50.17, the SO₂ standard is met at an ambient air quality monitoring site when the three-year average of the annual 99th percentile of one-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance with appendix T of 40 CFR part 50 at all relevant monitoring sites in the subject area. EPA has reviewed the ambient air monitoring data for the Campbell-Clermont KY-OH nonattainment area. The Campbell-Clermont KY-OH nonattainment area has one SO₂ monitoring site, located in northern Campbell County, Kentucky. The Campbell County SO₂ monitor is operated by the Kentucky Division for Air Quality. This review addresses air quality data collected in the 2012-2014 and 2013-2015 periods, which are the most recent quality-assured data available. All data considered are complete, quality-assured, certified, and recorded in EPA's Air Quality System database.

Table 1 shows the 2012-2014 and 2013-2015 design values for the Campbell-Clermont KY-OH nonattainment area. For 2014, the last year in which the Beckjord plant was operating, the 99th percentile monitored daily maximum value was 61 ppb. For 2015, after the Beckjord plant had shut down, the 99th percentile monitored daily maximum value was 18 ppb. The three-year average design value for 2012-2014 is 72 ppb, and the three-year average design value for 2013-2015 is 50 ppb. Both are below the SO₂ standard. Therefore, the Campbell County SO₂ monitor clearly shows attainment. Kentucky has committed to continue monitoring for SO₂ at this location. Preliminary data for 2016 indicate that the area is continuing to attain the SO₂ standard.

Table 1—Monitoring Data for the Campbell-Clermont KY-OH Nonattainment Area for 2012-2014 and 2013-2015

Site	County	Year and 99th percentile value (ppb)				Average 2012-2014 (ppb)	Average 2013-2015 (ppb)
		2012	2013	2014	2015
21-037-3002	Campbell, KY	85	71	61	18	72	50

Regarding the second component of the attainment determination, Ohio examined the extent to which the earlier NAAQS violations and subsequent improvement in the local monitored SO₂ values were primarily attributable to the Beckjord plant. Ohio used three methods to judge the prospects of future violations following the shutdown of the Beckjord plant. In these methods, Ohio evaluated local emission inventories, wind patterns during monitored exceedances, and monitored data during periods when the Beckjord plant was still active but not emitting SO₂. EPA proposes to find that these analyses meet the April 2014 guidance requirement to comprehensively evaluate the impacts of the Beckjord plant's closure on the Campbell-Clermont area and demonstrate that the entire area is attaining the SO₂ standard.

As a first step in this approach, Ohio reviewed the inventory of SO₂ sources in the area. This inventory shows no large SO₂ sources in the Kentucky portion of the nonattainment area. There are several SO₂ sources in the Cincinnati area, in Hamilton County, Ohio. The largest of these is Dynegy's Miami Fort Power Station (Miami Fort plant), which emitted over 28,000 tons of SO₂ in 2014. The Miami Fort plant is located 30 kilometers (km) west of the Campbell County SO₂ monitor. As of June 2015, the Miami Fort plant reduced its emissions by approximately 50% from 2014 levels with the closure of its Unit 6. The next largest source, at 1,600 tons of SO₂, is the DTE St. Bernard facility, which is located 17 km north of the Campbell County SO₂ monitor. The other SO₂ sources in Hamilton County emitted less than 200 tons of SO₂ in 2014, and are located 16-31 km from the Campbell County SO₂ monitor. In Clermont County, outside the nonattainment area, the only other SO₂ source is the W.H. Zimmer power plant (Zimmer plant), located approximately 15 km south of the Beckjord plant and 27 km southwest of the SO₂ Campbell County SO₂ monitor. The Zimmer plant emitted 13,500 tons of SO₂ in 2014.

The second part of this review was to more closely examine potential contributors to SO₂ NAAQS exceedances in the Campbell-Clermont KY-OH nonattainment area. For this purpose, Ohio analyzed wind patterns and back-trajectories for the 44 hours ^[2] for which SO₂ levels were greater than 75 ppb at the Campbell County SO₂ monitor between 2010 and 2014. The hourly monitored SO₂ values ranged from 76 ppb to 180 ppb. The 24-hour back trajectories seek to determine the origins of air flow leading toward the monitor location. Hourly wind data were also used to help focus on the short term flow close to the times of exceedances. Ohio found that the trajectories indicated that high concentrations at the Campbell County SO₂ monitor were most often attributable to wind flows from the vicinity of the Beckjord plant. Winds (measured at the Cincinnati/Northern Kentucky airport) were almost exclusively from the east during the 44 hours with high monitored concentrations. Trajectories passed over or near the Beckjord plant in about two thirds of the 44 hours. The Beckjord plant appeared to be the main contributor to 42 of the hours. One hour appeared to have some influence from the Zimmer plant as well as from the Beckjord plant, and for another hour, Ohio could not identify any SO₂ source located in the area indicated by the back-trajectory and surface winds. None of the exceedances appeared to be attributable to the Miami Fort plant or other sources west of the Campbell County SO₂ monitor.

The third analysis considered monitored SO₂ values and wind directions during the time period of January 1, 2012, through February 28, 2015. During that period, there were a total of 10,231 hours when the Beckjord plant's SO₂ emissions were zero. The Beckjord plant was not operating at all in 2015 or during the last four months of 2014, and there were 1400-2500 hours in which the Beckjord plant did not emit SO₂ during 2012 and 2013 as well. Ohio examined the Campbell County monitored data and found that no exceedances of the SO₂ NAAQS were measured during these 10,231 hours. The maximum monitored concentration at the Campbell County SO₂ monitor during these hours was 34 ppb. The highest monitored values measured while the Beckjord plant was emitting SO₂ were typically associated with winds coming from the east and southeast, suggesting the Beckjord plant's influence. The winds associated with the highest monitored values during the 10,231 hours without impacts from the Beckjord plant, however, came from the west and southwest. As those monitored values were less than half of the SO₂ NAAQS in magnitude, Ohio's analysis supports the assertion that the closing of the Beckjord plant has led to attainment of the SO₂ NAAQS, and suggests that future violations caused by other nearby sources are unlikely.

Ohio did not further evaluate the sources to the north and west of the nonattainment area due to their distance from the area and their emission levels, and because the previously discussed analyses did not indicate that sources north and west of the nonattainment area have had a significant influence on monitored exceedances. Ohio did, however, specifically evaluate the Zimmer plant for its potential contribution to elevated SO₂ levels in the Campbell-Clermont KY-OH nonattainment area. The Zimmer plant's impacts warranted additional analysis because it has substantial emissions, is located relatively near the Beckjord plant, and generally has the greatest potential (after the shutdown of the Beckjord plant) to cause violations in the nonattainment area.

First, the State considered a graphical analysis of the 2012-2014 hourly SO₂ levels at the Campbell County SO₂ monitor compared to the hourly SO₂ emissions from the Beckjord and Zimmer plants. The Zimmer plant's emissions stayed relatively constant over the time period, while the Beckjord plant's emissions, which were much larger than the Zimmer plant's, also varied more widely. The data showed that the monitored SO₂ levels seemed to fluctuate in a pattern similar to the Beckjord plant's emission variations, falling to its lowest levels when the Beckjord plant's emissions were very low, even as the Zimmer plant's emissions remained relatively steady, which suggests that the Campbell County SO₂ monitor was more strongly influenced by the Beckjord plant's impacts. Based on these results, particularly from the trajectory analyses, Ohio's first approach yields a finding that the violations previously recorded at the SO₂ monitor were primarily attributable to emissions from the Beckjord plant, which in turn indicates that the shutdown of the Beckjord plant can be expected to result in no further violations at this monitoring site.

Ohio's second approach to assessing prospects of future violations in the nonattainment area was to perform a modeling analysis to evaluate the location of the Zimmer plant's maximum impacts and to estimate a worst-case impact within the nonattainment area. This analysis was intended to address the potential for violations not just at the monitoring site (28 km from the Zimmer plant) but also elsewhere in the nonattainment area. The Zimmer plant is approximately 11.5 km from the nearest edge of the Campbell-Clermont KY-OH SO₂ nonattainment area. Ohio's analysis covered only the time period with available meteorological data after the Beckjord plant's coal units shut down: August 30, 2014, to February 28, 2015. Because this data set is shorter than the five-year period typically used to demonstrate attainment of the SO₂ standard, Ohio used the second high modeled maximum daily value to represent the 99th percentile, rather than the fourth high modeled maximum daily value. Ohio used a coarse receptor grid within the nonattainment area, and a finer grid within three kilometers of the Zimmer plant. Maximum impacts were found to occur within one kilometer of the Zimmer plant. In this analysis, Ohio modeled a unit emission rate of one gram per second from the Zimmer plant's two stacks, to find the relative impacts from the Zimmer plant at the monitoring location and at a range of other receptors inside the nonattainment area as well as closer to the plant. Ohio then used the second high value measured at the Campbell County monitor during this time period with zero impacts from The Beckjord plant, under the conservative assumption that this monitored value was entirely caused by the Zimmer plant's emissions, to develop a numerical estimate of the relative worst-case impact of the Zimmer plant elsewhere within the nonattainment area. The second high monitored value was 24 ppb, and Ohio determined that the Zimmer plant's highest impact within the nonattainment area relative to that monitored value would be approximately 52 ppb. Impacts at this level would not cause exceedances of the SO₂ NAAQS within the nonattainment area.

As a third approach, Ohio and Kentucky estimated future SO₂ concentrations in the nonattainment area using a method similar to developing a conservative background concentration for a typical modeled attainment demonstration. Ohio used Campbell County SO₂ monitor data from 2010-2014 for this calculation. Since the Beckjord plant was operating during this period, Ohio followed EPA guidance to ensure that the monitored values for background did not count impacts from the Beckjord plant or the Zimmer plant. Ohio determined the 90 degree wind direction sector for which the Campbell County SO₂ monitor could be impacted by direct emissions from either power plant, and excluded monitored hours when winds came from this sector. Ohio averaged the remaining monitored values in each year, excluding values of zero for additional conservatism, and chose the highest value, 4.4 ppb. Ohio further refined the analysis to exclude only the 45 degree sector centered on the Beckjord plant. The highest average value in this case, which could include the Zimmer plant's impacts, was 4.76 ppb. Since no significant sources exist now that would be expected to cause significant concentration gradients within the nonattainment area, conceptually a modeling analysis for this area would reflect modeling zero emissions, and the final “modeled” result would be equal to the background concentration. Since the background value could also conservatively include actual 2010-2014 contributions from Cincinnati-area sources which have reduced their SO₂ emissions since 2014, this analysis supports Ohio's assertion that the Campbell-Clermont KY-OH nonattainment area will continue to attain the SO₂ NAAQS.

In addition to these analyses, all of which were provided in Ohio's redesignation request, Ohio has also provided relevant information in the separate context of addressing the prospective SO₂ designation for the more immediate vicinity of the Zimmer plant. Ohio's September 16, 2015, submittal provided a full modeling analysis in accordance with EPA's modeling Technical Assistance Document (TAD) which indicated that the maximum concentration estimated near the Zimmer plant was 56 ppb, at a distance just over one kilometer from the plant's stacks. Based largely on this information, EPA wrote to Ohio on February 16, 2016, stating EPA's preliminary intention to promulgate an unclassifiable/attainment designation for all of Clermont County that is not already designated, i.e. for all of Clermont County except the portion (Pierce Township) that is included in the Campbell-Clermont KY-OH nonattainment area. Since the Campbell-Clermont KY-OH nonattainment area is substantially more distant than the peak impacts of the Zimmer plant, and the impacts of the Zimmer plant in the area would therefore be much lower than 56 ppb, this modeling provides clear evidence that the Zimmer plant is not causing violations anywhere in the Campbell-Clermont KY-OH nonattainment area. In summary, the monitored data show attainment for 2012-2014 and for 2013-2015; Ohio has demonstrated that the closed Beckjord plant was likely to have caused the previous violations of the SO₂ NAAQS; and Ohio has demonstrated that neither the Zimmer plant nor other SO₂ emissions are expected to cause future violations in the area. Therefore, EPA agrees that the Campbell-Clermont KY-OH nonattainment area is currently attaining the SO₂ NAAQS.

IV. Ohio's Section 110(k) SIP

EPA has determined that Ohio has a fully approved SIP under section 110(k). Ohio has implemented its SO₂ SIP regulations at Ohio Administrative Code (OAC) 3745-18, and Ohio maintains an active enforcement program to ensure ongoing compliance. Ohio's new source review/prevention of significant deterioration program will address emissions from new sources. Ohio's current SO₂ SIP rule for Clermont County is codified at OAC 3745-18-19. The existing rule addressing the Beckjord plant's SO₂ emissions, OAC 3745-18-19(B), remains in the SIP, but Ohio has submitted documents which demonstrate that the facility has closed and is no longer authorized under the State's permitting program to operate.

V. Permanent and Enforceable Emission Reductions

As previously stated, the Beckjord plant closed in late 2014, and the monitored improvement in air quality is largely due to this closure. The closure results in a reduction of 90,835 tpy, considering the plant's 2011 emissions, representing the time the area was classified nonattainment; or a reduction of 32,603 tpy, considering the plant's emissions in 2014, when the area first began to monitor attainment. Upon notification of the Beckjord plant's closure, in accordance with Ohio EPA policy, Ohio ceased its authorization for the facility to operate unless it obtains a new permit. Ohio EPA provided documentation of this shutdown in the form of an October 14, 2014, letter from Duke Energy Ohio, Inc., to the Southwest Ohio Air Quality Agency. In this letter, Duke Energy Ohio, Inc. confirmed that the Beckjord plant's six large coal-fired units are permanently shut down and removed from service as of October 1, 2014. The letter confirmed that Ohio's authorization for Duke Energy Ohio, Inc. to operate the six units had ceased. The Beckjord plant has been demonstrated to be the primary SO₂ source which caused the monitored exceedances. As it has closed and cannot reopen without applying for a new operating permit, EPA agrees that the improvement in air quality in the nonattainment area is due to permanent and enforceable emission reductions.

VI. Requirements for the Area Under Section 110 and Part D

Ohio has submitted information demonstrating that it meets these requirements. EPA approved Ohio's infrastructure SIP for SO₂ on August 14, 2015 (80 FR 48733). This infrastructure SIP approval confirms that Ohio's SIP meets the requirements of CAA section 110(a)(1) and 110(a)(2) to contain the basic program elements, such as an active enforcement program and permitting program.

Section 191 of the CAA requires Ohio to submit a part D nonattainment SIP for the Campbell-Clermont KY-OH nonattainment area by April 4, 2015. Because Ohio submitted its August 11, 2015, redesignation request instead of a nonattainment SIP, EPA was compelled to include this area in our March 18, 2016, finding of failure to submit (81 FR 14736). However, final promulgation of this redesignation to attainment would end any nonattainment plan requirements, and promulgation of this redesignation within 18 months of the finding of failure to submit would result in no sanctions taking effect.

With the redesignation request of August 11, 2015, Ohio submitted information addressing the section 172 part D SIP requirements. Ohio submitted an attainment inventory of the SO₂ emissions from sources in the nonattainment area. Ohio chose 2011 for its base year emissions inventory, as comprehensive emissions data was available and updated that year, which satisfies the 172(c)(3) requirements. The Kentucky portion of the nonattainment area contained 11 minor point source facilities. Their combined SO₂ emissions were less than one ton per year. The only significant source in the Ohio portion of the nonattainment area is the Beckjord plant. Area and non-highway mobile source emissions were taken from the 2011 National Emissions Inventory (NEI), with county-wide values adjusted based on the population percentages in the nonattainment area. Highway mobile source emissions were provided by the Ohio-Kentucky-Indiana Regional Council of Governments (OKI), based on dividing the vehicle miles traveled in the nonattainment area by the vehicle miles traveled in the entire county. Census data and projections were used to develop growth factors for future years. The attainment year inventory was based on 2014 emissions, adjusted for projected growth in the area, and accounting for the Beckjord plant's closure.

Table 2 shows the projected inventories. Note that Kentucky's inventory remains steady at approximately 8 tpy total, while Ohio's projected inventory, accounting for the Beckjord plant's actual closure, drops from over 90,000 tpy in 2011 to approximately 8 tpy in the interim and maintenance years. This large reduction is expected to be sufficient to maintain the SO₂ standard.

Table 2—Campbell-Clermont Nonattainment Area SO₂ Emission Inventory Totals

[tpy]

	2011 base-year emissions	2014 attainment year	2020 interim year	2027 maintenance year
Ohio	90,842.51	32,610.56	8.36	8.46
Kentucky	8.56	8.54	8.47	8.27
Combined total	90,851.07	32,619.10	16.83	16.73

Section 172(c)(1) requires nonattainment area SIPs to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable and to provide for attainment of the NAAQS. EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not applicable for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. See 57 FR 13498, 13564 (April 16, 1992). EPA noted that the requirements for reasonable further progress (RFP) and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. EPA's understanding of section 172 also forms the basis of its Clean Data Policy, which was articulated with regard to SO₂ in the April 2014 “Guidance for 1-Hour SO₂ Nonattainment Area SIP Submissions,” and suspends a State's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9). Courts have upheld EPA's interpretation of section 172(c)(1) for “reasonably available” control measures and control technology as meaning only those controls that advance attainment, which precludes the need to require additional measures where an area is already attaining. NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155, 162 (D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735, 744 (5th Cir. 2002); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).^[3] Therefore, because the Campbell-Clermont KY-OH nonattainment area has attained the SO₂ standard, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are not part of the “applicable implementation plan” required to have been approved prior to redesignation per CAA section 107(d)(3)(E)(ii). In any case, in the absence of major point sources, and in the context of implemented measures (especially the shutdown of the Beckjord plant) having achieved attainment, EPA believes that Ohio has satisfied the reasonably available control measures/reasonably available control techniques (RACM/RACT) requirement for this area.

The other section 172 requirements that are designed to help an area achieve attainment are the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress, the requirement to submit the section 172(c)(9) contingency measures, and the section 172(c)(6) requirement for the SIP to contain control measures necessary to provide for attainment of the NAAQS. These are also not required to be approved as part of the “applicable implementation plan” for purposes of satisfying CAA section 107(d)(3)(E)(ii).

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in 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.” Ohio has demonstrated that the Campbell-Clermont KY-OH nonattainment area will be able to maintain the NAAQS without part D NSR in effect, and therefore Ohio does not need to have a fully approved part D NSR program prior to approval of the redesignation request. Ohio's PSD program will become effective in the Campbell-Clermont KY-OH nonattainment area upon redesignation to attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Ohio SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA. On August 20, 2014, Ohio submitted documentation establishing transportation conformity procedures in its SIP. EPA approved these procedures on March 2, 2015 (80 FR 11133). Moreover, EPA interprets the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under section 107(d) because, like other requirements listed above, State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida).

As discussed above, EPA is proposing to find that Ohio has satisfied all applicable requirements for purposes of redesignation of the Campbell-Clermont KY-OH nonattainment area under section 110 and part D of title I of the CAA.

VII. Maintenance Plan

CAA section 175A sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the nonattainment area is redesignated to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the ten years following the initial ten-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future one-hour SO₂ violations. Specifically, the maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan.

Ohio's August 11, 2015, redesignation request contains its maintenance plan, which Ohio has committed to review eight years after redesignation. Ohio submitted an attainment emission inventory which addresses current emissions and projections of future emissions, for point, area, and mobile sources. Total SO₂ emissions in the nonattainment area were 90,851 tpy in the base year, 2011; 32,619 tpy in the attainment year, 2014; and 16.7 tpy in the projected future years between 2017 and 2027 (see Table 2). Ohio has demonstrated that after the closure of the Beckjord plant, the area is attaining and is expected to maintain the SO₂ NAAQS. Kentucky has committed to continue monitoring at the Campbell County site in accordance with the requirements of 40 CFR part 58. These data will be used to verify continued attainment. Ohio has the authority to adopt, implement and enforce any subsequent emissions control measures deemed necessary to correct any future SO₂ violations. Regarding contingency measures to implement in the case of a future violation of the SO₂ standard, Ohio did not name a specific control measure, as there are no sources in or near the nonattainment area with the potential to cause a violation. As a contingency plan, therefore, Ohio has committed to identify any sources which cause or contribute to monitored violations, and follow up with enforcement proceedings, expediting any necessary corrective actions. SIP rules will be revised in accordance with Ohio's rulemaking procedures if new control measures are needed. Ohio commits to study SO₂ emission trends and identify areas of concern if the annual average 99th percentile maximum daily one-hour SO₂ concentration of 79 ppb or greater occurs in a single year, or if a two-year average of 76 ppb or greater occurs in the maintenance area. Ohio will adopt and implement corrective actions as necessary to address such trends of increasing emissions or ambient impacts. The public will have the opportunity to participate in the contingency measure implementation process. EPA proposes to find that Ohio's maintenance plan adequately addresses the five basic components necessary to maintain the SO₂ standard in the Campbell-Clermont KY-OH nonattainment area.

VIII. What action is EPA taking?

In accordance with Ohio's August 11, 2015, request, EPA is proposing to redesignate the Ohio portion of the Campbell-Clermont KY-OH nonattainment area from nonattainment to attainment of the SO₂ NAAQS. Ohio has demonstrated that the area is attaining the SO₂ standard, and that the improvement in air quality is due to the permanent and enforceable shutdown of the main SO₂ source in the nonattainment area. EPA is proposing to approve the maintenance plan that Ohio submitted to ensure that the area will continue to maintain the SO₂ standard.

IX. Statutory and Executive Order Reviews

Under the CAA, 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, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: July 11, 2016.

Robert A. Kaplan,

Acting Regional Administrator, Region 5.

Footnotes

1.  The design value is a statistic computed according to the data handling procedures of the NAAQS (in 40 CFR part 50 appendix T) that, by comparison to the level of the NAAQS, indicates whether the area is violating the NAAQS. For SO₂, the design value is the three-year average of the annual 99th percentile of one-hour daily maximum concentrations.

2.  Although it is possible for a SO₂ monitor to measure SO₂ values above the NAAQS for several individual hours during a given day, only the single highest monitored hourly SO₂ value in each 24-hour day is formally defined as “an exceedance of the SO₂ NAAQS,” if it is greater than 75 ppb. There were 26 exceedances of the SO₂ NAAQS at the Campbell County SO₂ monitor during 2012-2014, but there were 44 total hours for which the SO₂ monitor recorded SO₂ values above the SO₂ NAAQS of 75 ppb. A violation of the SO₂ NAAQS, as opposed to an exceedance, is recorded when the three-year average of the annual 99th percentile of one-hour daily maximum concentrations exceeds 75 ppb. In this analysis, to identify contributing SO₂ sources, Ohio evaluated the 44 hours in 2012-2014 for which the SO₂ monitor had registered a SO₂ concentration over 75 ppb.

3.  Although the Court of Appeals for the Sixth Circuit has issued a contrary opinion in the context of redesignations for ozone and PM_2.5, EPA believes that these opinions, interpreting the applicability of the ozone and PM_2.5 RACM/RACT requirements for redesignations for those pollutants, do not address the applicability of the RACM/RACT requirement for SO₂. See Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015).