[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Rules and Regulations]
[Pages 60373-60376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24811]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0719-201144; FRL-9472-2]


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.

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SUMMARY: EPA is determining that the tri-state Cincinnati-Hamilton, 
Ohio-Kentucky-Indiana, fine particulate (PM2.5) 
nonattainment Area (hereafter referred to as ``the Cincinnati Area'' or 
``Area'') has attained the 1997 annual average PM2.5 
national ambient air quality standards (NAAQS) and additionally, that 
the Area has attained the 1997 annual PM2.5 NAAQS by its

[[Page 60374]]

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 PM2.5 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 
PM2.5 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 (404) 562-9104. Mr. Huey can 
also be reached via electronic mail at [email protected]. Ms. Waterson 
may be reached by phone at (404) 562-9061 or via electronic mail at 
[email protected]. 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 (312) 
886-6067. Mr. Summerhays can also be reached via electronic mail at 
[email protected].

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 PM2.5 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 PM2.5 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 PM2.5 Implementation 
Rule of April 25, 2007 (72 FR 20664), that the Cincinnati Area has 
attained the 1997 annual PM2.5 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 ([mu]g/m\3\). 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 [mu]g/m\3\ in 2007, and an annual average 
concentration in 2008 of 13.3 [mu]g/m\3\. The Hook Field Airport site 
monitored an annual average concentration of 14.6 [mu]g/m\3\ 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 [mu]g/m\3\, except for the Murray Road site in Cincinnati. 
The Murray Road site had a preliminary 2008-2010 design value of 15.1 
[mu]g/m\3\; 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 PM2.5 NAAQS as 
long as this Area continues to meet the 1997 annual PM2.5 
NAAQS. Finalizing this action does not constitute a redesignation of 
the Cincinnati Area to attainment for the 1997 annual PM2.5 
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 PM2.5 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 PM2.5 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 
PM2.5 NAAQS during the period 2007-2009 and continues to 
monitor attainment during the 2008-2010 period. This final action, in 
accordance

[[Page 60375]]

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 PM2.5 NAAQS as long as the Area continues to 
meet the 1997 annual PM2.5 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 PM2.5 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]

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


Sec.  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 PM2.5 nonattainment Area attained the 
1997 annual PM2.5 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 
PM2.5 nonattainment Area is not subject to the consequences 
of failing to attain pursuant to section 179(d).


0
3. Section 52.776 is amended by adding paragraph (x) to read as 
follows:


Sec.  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 PM2.5 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 PM2.5 NAAQS.

Subpart S--Kentucky

0
4. Section 52.929 is amended by adding paragraph (c) to read as 
follows:


Sec.  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 PM2.5 nonattainment Area attained the 
1997 annual PM2.5 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

[[Page 60376]]

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 PM2.5 nonattainment 
Area is not subject to the consequences of failing to attain pursuant 
to section 179(d).


0
5. Section 52.933 is amended by adding paragraph (e) to read as 
follows:


Sec.  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 PM2.5 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 
PM2.5 NAAQS.

Subpart KK--Ohio

0
6. Section 52.1880 is amended by adding paragraph (o) to read as 
follows:


Sec.  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 PM2.5 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 
PM2.5 NAAQS.


0
7. Section 52.1892 is amended by adding paragraph (c) to read as 
follows:


Sec.  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 PM2.5 nonattainment Area attained the 1997 
annual PM2.5 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 
PM2.5 nonattainment Area is not subject to the consequences 
of failing to attain pursuant to section 179(d).

[FR Doc. 2011-24811 Filed 9-28-11; 8:45 am]
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