2011-24811. Approval and Promulgation of Air Quality Implementation Plans; Ohio, Kentucky, and Indiana; Cincinnati-Hamilton Nonattainment Area; Determinations of Attainment of the 1997 Annual Fine Particulate Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is determining that the tri-state Cincinnati-Hamilton, Ohio-Kentucky-Indiana, fine particulate (PM_2.5) nonattainment Area (hereafter referred to as “the Cincinnati Area” or “Area”) has attained the 1997 annual average PM_2.5 national ambient air quality standards (NAAQS) and additionally, that the Area has attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010. The Cincinnati Area is comprised of Butler, Clermont, Hamilton, and Warren Counties in Ohio; Boone, Campbell and Kenton Counties in Kentucky; and a portion of Dearborn County in Indiana. These determinations of attainment are based upon quality-assured and certified ambient air monitoring data for the 2007-2009 period showing that the Area has monitored attainment of the 1997 annual PM_2.5 NAAQS. The requirements for the Area to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures, and other planning State Implementation Plan (SIP) revisions related to attainment of the standard shall be suspended so long as the Area continues to attain the 1997 annual PM_2.5 NAAQS.

DATES:

Effective Date: This final rule is effective on October 31, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R04-OAR-2010-0719. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal business hours at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

FOR FURTHER INFORMATION CONTACT:

In Region 4, Joel Huey or Sara Waterson, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Mr. Huey's telephone number is [phone]. Mr. Huey can also be reached via electronic mail at [e-mail]. Ms. Waterson may be reached by phone at [phone] or via electronic mail at [e-mail]. In Region 5, John Summerhays, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507. Mr. Summerhays' telephone number is [phone]. Mr. Summerhays can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. What actions is EPA taking?

II. What are the effects of these actions?

III. What are EPA's final actions?

IV. Statutory and Executive Order Reviews

I. What actions is EPA taking?

EPA is determining that the Cincinnati Area (comprised of Butler, Clermont, Hamilton, and Warren Counties in Ohio; Boone, Campbell and Kenton Counties in Kentucky; and a portion of Dearborn County in Indiana) has attained the 1997 annual PM_2.5 NAAQS. This determination is based upon quality-assured, quality-controlled and certified ambient air monitoring data that shows the Area has monitored attainment of the 1997 annual PM_2.5 NAAQS based on the 2007-2009 data and is continuing to attain with 2008-2010 data. EPA is also determining, in accordance with EPA's PM_2.5 Implementation Rule of April 25, 2007 (72 FR 20664), that the Cincinnati Area has attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010.

Other specific requirements of the determination and the rationale for EPA's action are explained in the notice of proposed rulemaking (NPR) published on June 3, 2011 (76 FR 32110). For summary purposes, the Cincinnati Area did not meet the 75 percent completeness criteria in three cases. The Northern Kentucky University site began operation on August 1, 2007, and thus did not obtain complete data for the first three quarters of 2007. This would not be considered an incomplete record due to it being a new site. Nevertheless, the average concentration for the remainder of 2007 and all of 2008 and 2009 was 12.5 micrograms per meter cubed (μg/m³). Scarlet Oaks School ended operation December 31, 2008 and Hook Field Airport ended operation December 31, 2007. The Scarlet Oaks School site monitored an average concentration of 14.8 μg/m³ in 2007, and an annual average concentration in 2008 of 13.3 μg/m³. The Hook Field Airport site monitored an annual average concentration of 14.6 μg/m³ for 2007. These values are below the NAAQS. The complete 2010 year had not been certified at the time of the NPR; therefore, the data were not considered complete for 2010. All of the 2008-2010 design values are below 15.0 μg/m³, except for the Murray Road site in Cincinnati. The Murray Road site had a preliminary 2008-2010 design value of 15.1 μg/m³; however, the site was shut down in February of the first quarter of 2010 due to safety issues. The partial first quarter of 2010 data before the monitor shut down showed the only data above the NAAQS for the 2008-2010 period. Approval was granted for the site to be shut down because the Carthage Fire site registered a higher design value and is located approximately a mile from the Murray Road site. A comparison of the 2007-2009 data showed the sites were well correlated with each other. The comment period closed on July 5, 2011. No comments were received in response to the NPR.

II. What are the effects of these actions?

This final action, in accordance with 40 CFR 51.1004(c), suspends the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM_2.5 NAAQS as long as this Area continues to meet the 1997 annual PM_2.5 NAAQS. Finalizing this action does not constitute a redesignation of the Cincinnati Area to attainment for the 1997 annual PM_2.5 NAAQS under section 107(d)(3) of the Clean Air Act (CAA). Further, finalizing this action does not involve approving maintenance plans for the Area as required under section 175A of the CAA, nor does it involve a determination that the Area has met all requirements for a redesignation.

In addition, EPA is making a separate and independent determination that the Area has attained the 1997 annual PM_2.5 standard by its applicable attainment date (April 5, 2010), thereby satisfying EPA's requirement pursuant to section 179(c)(1) of the CAA to make such a determination based on the Area's air quality data as of the attainment date.

III. What are EPA's final actions?

EPA is determining that the Cincinnati Area has data indicating it has attained the 1997 annual PM_2.5 NAAQS, and additionally, that the Area has attained the standard by its applicable attainment date (April 5, 2010). These determinations are based upon quality-assured, quality-controlled, and certified ambient air monitoring data showing that this Area has monitored attainment of the 1997 annual PM_2.5 NAAQS during the period 2007-2009 and continues to monitor attainment during the 2008-2010 period. This final action, in accordance with 40 CFR 51.1004(c), will suspend the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM_2.5 NAAQS as long as the Area continues to meet the 1997 annual PM_2.5 NAAQS. These actions are being taken pursuant to section 179(c)(1) of the CAA and are consistent with the CAA and its implementing regulations.

IV. Statutory and Executive Order Reviews

These actions make a determination of attainment based on air quality, and will result in the suspension of certain federal requirements, and it will not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Are not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this 1997 PM_2.5 clean NAAQS data determination for the Cincinnati Area 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For purposes of judicial review, the two determinations approved by today's action are severable from one another.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Dated: August 18, 2011.

Gwendolyn Keyes Fleming,

Regional Administrator, Region 4.

Dated: September 12, 2011.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart P—Indiana

2. Section 52.774 is amended by designating the existing text as paragraph (a) and by adding paragraph (b) to read as follows:

§ 52.774

Determination of attainment.

* * * * *

(b) Based upon EPA's review of the air quality data for the 3-year period 2007-2009, EPA determined that the Cincinnati-Hamilton, Ohio, Kentucky, and Indiana PM_2.5 nonattainment Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. Therefore, EPA has met the requirement pursuant to CAA section 179(c) to determine, based on the Area's air quality as of the attainment date, whether the Area attained the standard. EPA also determined that the Cincinnati-Hamilton, Ohio, Kentucky, and Indiana PM_2.5 nonattainment Area is not subject to the consequences of failing to attain pursuant to section 179(d).

3. Section 52.776 is amended by adding paragraph (x) to read as follows:

§ 52.776

Control strategy: Particulate matter.

* * * * *

(x) Determination of Attainment. EPA has determined, as of September 29, 2011, that based upon 2007-2009 air quality data, the Cincinnati-Hamilton, Ohio, Kentucky, and Indiana, nonattainment Area has attained the 1997 annual PM_2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspends the requirements for this Area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this Area continues to meet the 1997 annual PM_2.5 NAAQS.

Subpart S—Kentucky

4. Section 52.929 is amended by adding paragraph (c) to read as follows:

§ 52.929

Determination of attainment.

* * * * *

(c) Based upon EPA's review of the air quality data for the 3-year period 2007-2009, EPA determined that the Cincinnati-Hamilton, Ohio, Kentucky, and Indiana PM_2.5 nonattainment Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. Therefore, EPA has met the requirement pursuant to CAA section 179(c) to determine, based on the Area's air quality as of the attainment date, whether the Area attained the standard. EPA also determined that the Cincinnati-Hamilton, Ohio, Kentucky, and Indiana PM_2.5 nonattainment Area is not subject to the consequences of failing to attain pursuant to section 179(d).

5. Section 52.933 is amended by adding paragraph (e) to read as follows:

§ 52.933

Control Strategy: Sulfur oxides and particulate matter.

* * * * *

(e) Determination of Attainment. EPA has determined, as of September 29, 2011, that based upon 2007-2009 air quality data, the Cincinnati-Hamilton, Ohio-Kentucky-Indiana nonattainment Area has attained the 1997 annual PM_2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspends the requirements for this Area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this Area continues to meet the 1997 annual PM_2.5 NAAQS.

Subpart KK—Ohio

6. Section 52.1880 is amended by adding paragraph (o) to read as follows:

§ 52.1880

Control strategy: Particulate matter.

* * * * *

(o) Determination of Attainment. EPA has determined, as of September 29, 2011, that based upon 2007-2009 air quality data, the Cincinnati-Hamilton, Ohio-Kentucky-Indiana nonattainment Area has attained the 1997 annual PM_2.5 NAAQS. This determination, in accordance with 40 CFR 52.1004(c), suspends the requirements for this Area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this Area continues to meet the 1997 annual PM_2.5 NAAQS.

7. Section 52.1892 is amended by adding paragraph (c) to read as follows:

§ 52.1892

Determination of attainment.

* * * * *

(c) Based upon EPA's review of the air quality data for the 3-year period 2007-2009, EPA determined that the Cincinnati-Hamilton, Ohio-Kentucky-Indiana PM_2.5 nonattainment Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. Therefore, EPA has met the requirement pursuant to CAA section 179(c) to determine, based on the Area's air quality as of the attainment date, whether the Area attained the standard. EPA also determined that the Cincinnati-Hamilton, Ohio, Kentucky, and Indiana PM_2.5 nonattainment Area is not subject to the consequences of failing to attain pursuant to section 179(d).