[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Rules and Regulations]
[Pages 21663-21670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8561]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0255; FRL-9657-4]


Air Quality Implementation Plans; Kentucky; Attainment Plan for 
the Kentucky Portion of the Huntington-Ashland 1997 Annual 
PM2.5 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve a revision to the 
Kentucky state implementation plan (SIP) submitted by the Commonwealth 
of Kentucky, through the Kentucky Energy and Environment Cabinet, 
Division for Air Quality (DAQ), to EPA on December 3, 2008, for the 
purpose of providing for attainment of the 1997 fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS) in 
the Kentucky portion of the Huntington-Ashland, West Virginia-Kentucky-
Ohio PM2.5 nonattainment area (hereafter referred to as the 
``Huntington-Ashland Area'' or ``Area''). The Huntington-Ashland Area 
is comprised of Boyd County and a portion of Lawrence County in 
Kentucky; Cabell and Wayne Counties and a portion of Mason County in 
West Virginia; and Lawrence and Scioto Counties and portions of Adams 
and Gallia Counties in Ohio. The Kentucky plan at issue in this action 
(hereafter referred to as the ``PM2.5 attainment plan'') 
pertains only to the Kentucky portion of the Huntington-Ashland Area. 
As proposed on January 30, 2012, EPA is approving Kentucky's 
PM2.5 attainment plan, which includes an attainment 
demonstration; reasonably available control technology (RACT) and 
reasonably available control measures (RACM); reasonable further

[[Page 21664]]

progress (RFP); base-year and attainment-year emissions inventories; 
contingency measures; and, for transportation conformity purposes, an 
insignificance determination for direct PM2.5 and nitrogen 
oxides (NOX) for the mobile source contribution to ambient 
PM2.5 levels for the Commonwealth's portion of the 
Huntington-Ashland Area. This action is being taken in accordance with 
the Clean Air Act (CAA or Act) and the ``Clean Air Fine Particle 
Implementation Rule,'' hereafter referred to as the ``PM2.5 
Implementation Rule,'' published on April 25, 2007. EPA is also 
responding to adverse comments received on the proposed approval of 
Kentucky's PM2.5 attainment plan.

DATES: This rule will be effective May 11, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0255. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 www.regulations.gov or in hard 
copy 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. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Joel Huey, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9104. Mr. Huey can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking?
II. What is the background for EPA's action?
III. What is EPA's response to comments?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is approving a SIP revision, submitted through the DAQ to EPA 
on December 3, 2008, for the purpose of demonstrating attainment of the 
1997 Annual PM2.5 NAAQS for the Kentucky portion of the 
Huntington-Ashland Area. Specifically, EPA is approving Kentucky's 
PM2.5 attainment plan, which includes an attainment 
demonstration; an analysis of RACM/RACT; a RFP plan; base-year and 
attainment-year emissions inventories; contingency measures; and an 
insignificance determination for mobile direct PM2.5 and 
NOX emissions for transportation conformity purposes for 
Kentucky's portion of the Huntington-Ashland Area.
    EPA has determined that Kentucky's PM2.5 attainment plan 
for the 1997 Annual PM2.5 NAAQS for its portion of the 
Huntington-Ashland Area meets applicable requirements of the CAA and 
the PM2.5 Implementation Rule. More detail on EPA's 
rationale for this approval can be found in EPA's January 30, 2012, 
proposed rulemaking for this action (see 75 FR 4510). Section III of 
this rulemaking responds to the adverse comments received on EPA's 
January 30, 2012, proposal.

II. What is the background for EPA's action?

    On April 25, 2007, EPA published the PM2.5 
Implementation Rule for the 1997 PM2.5 NAAQS (72 FR 20586). 
This rule describes the CAA framework and requirements for developing 
SIPs to achieve attainment in areas designated nonattainment for the 
1997 PM2.5 NAAQS. Such attainment plans must include a 
demonstration that a nonattainment area will meet the applicable NAAQS 
within the timeframe provided in the statute. For the 1997 
PM2.5 NAAQS, an attainment demonstration must show that a 
nonattainment area will attain the standards as expeditiously as 
practicable, but within five years of designation (i.e., by an 
attainment date of no later than April 5, 2010, based on air quality 
data for 2007 through 2009). As mentioned above, Kentucky provided the 
Commonwealth's SIP revision with the attainment plan (the subject of 
this rulemaking) for the Kentucky portion of the Huntington-Ashland 
Area on December 3, 2008.
    On September 7, 2011, EPA published a final rulemaking with a 
determination that the Huntington-Ashland Area has attained the 1997 
Annual PM2.5 NAAQS. See 76 FR 55542. That determination was 
based on the most recent three years of complete, quality-assured, 
quality controlled and certified ambient air monitoring data showing 
that the Area has met the 1997 Annual PM2.5 NAAQS. EPA also 
determined, in the September 7, 2011, rulemaking, and in accordance 
with CAA 179(c), that the Huntington-Ashland Area had attained the 1997 
Annual PM2.5 NAAQS by its applicable attainment date of 
April 5, 2010.
    As discussed in the September 7, 2011, rulemaking, EPA's 
determination of attainment \1\ suspended the obligation for the State 
to meet planning SIP requirements for the Area for so long as the Area 
continues to attain the 1997 Annual PM2.5 NAAQS. See 40 CFR 
51.1004(c). The state must still submit required emissions inventories 
consistent with appropriate timelines. The suspended planning SIP 
submission obligations include the attainment demonstration (including 
in this case the mobile source insignificance determination submitted 
to satisfy transportation conformity requirements), associated RACM/
RACT, RFP and the associated contingency measures. Despite the 
suspension of the aforementioned requirements for the Huntington-
Ashland Area for the 1997 Annual PM2.5 NAAQS, Kentucky has 
requested that EPA take action on its planning SIP for this Area in 
part because the SIP submittal includes the insignificance 
determination. Further, in September 2011, EPA agreed in a Consent 
Decree to take action on these submissions.
---------------------------------------------------------------------------

    \1\ The determination of attainment is not a redesignation of 
the Area from nonattainment to attainment and is not an indication 
that the Area will continue to maintain the standard for which the 
determination is made. It is merely a determination that the Area 
attained the standard for a particular three year period and also by 
the deadline. Please see EPA's September 7, 2011, rulemaking for 
more detail on the effects of a determination of attainment.
---------------------------------------------------------------------------

    EPA notes that on December 22, 2011, EPA published a proposal to 
approve the State of Ohio's request to redesignate to attainment the 
Ohio portion of the Huntington-Ashland Area. 76 FR 79593. EPA has also 
received requests from Kentucky and the State of West Virginia to 
redesignate their respective portions of the Huntington-Ashland Area 
but has not yet proposed action on those submissions.
    Monitoring data thus far available, but not yet certified, in the 
Air Quality System (AQS) database for 2011 show that this Area 
continues to meet the 1997 Annual PM2.5 NAAQS at this time. 
As shown in the table below, ambient PM2.5 levels in the 
Huntington-Ashland Area have declined steadily since

[[Page 21665]]

Kentucky submitted its PM2.5 attainment plan in 2008.

                                        Annual Average Design Value Concentrations in the Huntington-Ashland Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Design values (average of three consecutive annual
                                                                                                              average concentrations) ([mu]g/m\3\)
                   Site name                                   County                   Site No.     ---------------------------------------------------
                                                                                                          2008         2009         2010        2011 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Huntington.....................................  Cabell, WV.......................       54-011-0006         15.2         14.3         13.1         12.1
Ashland Primary (FIVCO)........................  Boyd, KY.........................       21-019-0017         13.4         12.4         11.4         10.9
Ironton DOT....................................  Lawrence, OH.....................       39-087-0012         13.4         12.2         12.2         11.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Monitoring data for 2011 are available but not yet certified in the AQS database.

    EPA understands that the Commonwealth chose not to withdraw the 
attainment plan SIP revision for the Huntington-Ashland Area because it 
includes a mobile insignificance determination for direct 
PM2.5 and NOX emissions from mobile sources. 
Therefore, as mentioned above, although the SIP planning requirements 
for the 1997 Annual PM2.5 NAAQS have been suspended for the 
Huntington-Ashland Area, EPA is acting on Kentucky's attainment plan 
because of the Consent Decree obligation to do so and because it 
remains a submittal to EPA.
    On January 30, 2012, EPA proposed to approve Kentucky's 
PM2.5 attainment plan, which includes an attainment 
demonstration; RACT and RACM; RFP; base-year and attainment-year 
emissions inventories; contingency measures; and, for transportation 
conformity purposes, an insignificance determination for direct 
PM2.5 and NOX for the mobile source contribution 
to ambient PM2.5 levels for the Commonwealth's portion of 
the Huntington-Ashland Area. As mentioned above, more detail on EPA's 
rationale for this approval can be found in EPA's January 30, 2012, 
proposed rulemaking for this action. See 77 FR 4510. Section III of 
this rulemaking responds to the adverse comments received on EPA's 
January 30, 2012, proposal.

III. What is EPA's response to comments?

    On February 29, 2012, EPA received comments on EPA's January 30, 
2012, proposal submitted by Robert Ukeiley on behalf of Sierra Club. In 
summary, the Commenter states EPA cannot approve the Kentucky December 
3, 2008, SIP revision because it: (1) Relies on inaccurate and 
inadequate emission reductions in its attainment demonstration modeling 
and emissions inventory, in part because of the status of the 
NOX SIP Call, CAIR and the industrial boiler/heater MACT (40 
CFR part 63, subpart DDDDD); (2) relies on temporary and unenforceable 
emission reductions from the Big Sandy Power Plant; (3) has not been 
evaluated for reasonably available control measures for the 
nonattainment area; and (4) includes on-road mobile source emission 
calculations which fail to consider 15 percent ethanol in gasoline. The 
complete set of comments is provided in the docket for this rulemaking. 
A summary of the specific comments and EPA's responses to them are 
provided below.

Emission Reductions

    Comment 1: The Commenter contends that it is problematic to 
``credit'' emission reductions associated with the NOX SIP 
Call because that is a cap-and-trade program. The Commenter cites to 
NRDC v. EPA, 571 F.3d 1245, 1257 (DC Cir. 2009) for support of the 
proposition that, because EPA cannot predict which sources will reduce 
emissions, EPA cannot rely on the NOX SIP Call for future 
reductions. The Commenter makes a similar contention regarding the 
Clean Air Interstate Rule (CAIR).
    The Commenter states that any source could decide at any time in 
the future to purchase emissions credits and increase its emissions and 
impacts to the Huntington-Ashland Area. The Commenter adds that 
emissions banking can also lead to violations of the NAAQS and prevents 
CAIR emission budgets from being permanent and enforceable emission 
limits. The Commenter concludes by explaining his opinion that, 
although DAQ modeled hypothetical effects of CAIR well beyond 2011 in 
its 2018 projected inventory, it is not even clear that EPA is fully 
enforcing CAIR at this point.
    Response 1: EPA notes that the Huntington-Ashland Area attained the 
1997 Annual PM2.5 NAAQS by the applicable attainment date of 
April 5, 2010, and that the emission control measures that led to that 
attainment were in place at least through that date. For this 
PM2.5 attainment plan the modeled attainment year is 2009. 
The year 2018 was modeled by the Visibility Improvement State and 
Tribal Association of the Southeast (VISTAS) for the purposes of 
Kentucky's Regional Haze SIP.
    EPA disagrees with the Commenter's position that emission 
reductions occurring within the relevant nonattainment area cannot be 
relied upon for the purpose of attainment demonstrations if they are 
associated with the emissions trading programs established in the 
NOX SIP Call and CAIR. The case cited by the Commenter NRDC 
v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), does not support the 
Commenter's position and is entirely consistent with EPA's position 
here. That case addressed EPA's determination that the nonattainment 
RACT requirement was satisfied by the NOX SIP Call trading 
program. The court emphasized that reductions outside the nonattainment 
area do not satisfy the RACT requirement and thus held that because EPA 
had not shown the trading program would result in sufficient reductions 
in a nonattainment area, its determination that the program satisfied 
RACT was not supported.\2\ Id. at 1256-58. The court did not hold, as 
the Commenter suggests, that emissions trading programs must be ignored 
when evaluating nonattainment area requirements.
---------------------------------------------------------------------------

    \2\ The court specifically elected not to vacate the RACT 
provision and left open the possibility that EPA may be able to 
reinstate the provision for particular nonattainment areas if, upon 
conducting a technical analysis, it finds the NOX SIP 
Call results in greater emissions reductions in a nonattainment area 
than would be achieved if RACT-level controls were installed in that 
area. Id. at 1258.
---------------------------------------------------------------------------

    There is simply no support for the Commenter's argument that 
attainment modeling demonstrations must ignore all emission reductions 
achieved by the NOX SIP Call and CAIR simply because the 
mechanism used to achieve the reductions is an emissions trading 
program. As a general matter, these programs cap and permanently reduce 
the total emissions allowed by sources subject to the programs. Any 
purchase of allowances and increase in emissions

[[Page 21666]]

by one source covered by the program necessitates a corresponding sale 
of allowances and reduction in emissions by another covered source. 
Given the regional nature of particulate matter, the corresponding 
emission reduction will have an air quality benefit that will 
compensate, at least in part, for the impact of any emission increase. 
Where an area can show that it will attain the standard with the 
reductions from enforceable trading programs, as done here,\3\ the area 
may take credit for the reductions from that program.
---------------------------------------------------------------------------

    \3\ Although CAIR was remanded to EPA in 2008, it remained in 
force and enforceable through the April 5, 2010, attainment date.
---------------------------------------------------------------------------

    The Commenter's contention that EPA cannot rely on trading programs 
that allow banking is also not on point. The comment is not relevant in 
this context where the trading programs in question were in place 
through the attainment deadline and the Area did attain by that 
deadline. The fact that the Huntington-Ashland Area attained the 
PM2.5 standard by the April 2010 attainment date with these 
trading programs in place belies the argument that banking of 
allowances might cause the Area to fail to attain by its attainment 
date. Moreover, there is no support for the Commenter's contention, 
based on the flawed premise that allowance banking somehow renders 
those programs' emission reduction requirements impermanent or 
unenforceable, that EPA must ignore reductions associated with any 
trading program that allows banking. In general, banking provides 
economic incentives for early reductions in emissions and encourages 
sources to install controls earlier than required for compliance with 
future caps on emissions. The fact that reductions may occur more 
quickly than required (freeing up allowances that may then be banked) 
does not, in any way, undermine the permanence or enforceability of the 
requirements in the underlying rule.
    In sum, contrary to petitioner's contention, the decision of D.C. 
Circuit in NRDC v. EPA does not establish that emission reductions from 
cap and trade programs, or emission reductions from cap and trade 
programs that allow banking, may not be relied upon for attainment 
modeling demonstrations. As discussed in EPA's proposal notice, DAQ 
utilized appropriate emissions inventory and modeling guidance to make 
this demonstration, which is consistent with the Area's current status 
as attaining the standard. For these reasons, EPA disagrees that the 
Commenter has identified a basis on which EPA should disapprove 
Kentucky's attainment plan.
    With regard to CAIR, EPA published this rule on May 12, 2005, to 
address the interstate transport requirements of the CAA. See 76 FR 
70093. As originally promulgated, CAIR requires significant reductions 
in emissions of sulfur dioxide (SO2) and NOX to 
limit the interstate transport of these pollutants. In 2008, however, 
the D.C. Circuit remanded CAIR back to EPA. North Carolina v. EPA, 550 
F.3d 1176. The Court found CAIR to be inconsistent with the 
requirements of the CAA, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), but ultimately remanded the rule to EPA without vacatur because 
it found that ``allowing CAIR to remain in effect until it is replaced 
by a rule consistent with [the court's] opinion would at least 
temporarily preserve the environmental values covered by CAIR.'' North 
Carolina v. EPA, 550 F.3d at 1178. CAIR thus remained in place 
following the remand and was in place and enforceable through the April 
5, 2010, attainment date.
    In response to the court's decision, EPA has issued a new rule to 
address interstate transport of NOX and SO2 in 
the eastern United States (i.e., the Transport Rule, also known as the 
Cross-State Air Pollution Rule). See 76 FR 48208, August 8, 2011. In 
the Transport Rule, EPA finalized regulatory changes to sunset (i.e., 
discontinue) CAIR and the CAIR FIPs for control periods in 2012 and 
beyond. See 76 FR 48322.
    On December 30, 2012, the D.C. Circuit issued an order addressing 
the status of the Transport Rule and CAIR in response to motions filed 
by numerous parties seeking a stay of the Transport Rule pending 
judicial review. In that order, the D.C. Circuit stayed the Transport 
Rule pending the court's resolution of the petitions for review of that 
rule in EME Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated 
cases). The court also indicated that EPA is expected to continue to 
administer CAIR in the interim until the court rules on the petitions 
for review of the Transport Rule.
    EPA does not believe that the circumstances set forth above make it 
inappropriate, in any way, to finalize its proposed approval of the 
Huntington-Ashland attainment plan. While the data that shows the Area 
attained the 1997 Annual PM2.5 NAAQS by the April 2010 
attainment deadline is impacted by CAIR, which is in place only 
temporarily, EPA's analysis for the Transport Rule demonstrates that 
the Area would be able to attain the NAAQS even in the absence of CAIR. 
See Appendix B to the Air Quality Modeling Final Rule Technical Support 
Document for the Cross-State Air Pollution Rule. Moreover, although the 
court has stayed the implementation of the Transport Rule at this time, 
EPA believes that the rule has a strong legal basis. To the extent that 
the current status of CAIR and the Transport Rule affect any of the 
criteria for approval of this SIP revision, EPA believes that the 
ongoing implementation and enforcement of CAIR during the period of the 
stay, coupled with the promulgation of the Transport Rule, provide 
adequate assurance of these components. EPA again notes that this 
action approves an attainment demonstration that the Area will attain 
in 2010, which the Area did. As of 2010, CAIR was an enforceable 
control measure applicable to the Area. Any issues of the effect of the 
ongoing litigation surrounding the Transport Rule which will replace 
CAIR will need to be addressed by the Area in any plan demonstrating 
maintenance of the PM2.5 standard into the future, which is 
not at issue in this attainment demonstration.
    Comment 2: The Commenter contends that EPA cannot approve the 
Kentucky submittal because DAQ included, among its controls, a 
hazardous air pollutant rule found at 40 CFR part 63, subpart DDDDD, 
that was vacated in June 2007. More specifically, the Commenter 
suggests that EPA cannot rely on a claim that emission reductions 
attributed to a vacated rule will be an ``insignificant fraction'' of 
total emissions.
    Response 2: As noted by the Commenter, nonattainment plans must 
include ``a comprehensive, accurate, current inventory of actual 
emissions from all sources of the relevant pollutant or pollutants * * 
* '' See, e.g., CAA section 172(c)(3). As a point of clarification, 
this is the inventory EPA is approving for the purposes of CAA section 
172(c)(3). Kentucky selected 2002 as the base year for the emissions 
inventory in accordance with 40 CFR 51.1008(b). The 2002 emissions 
inventory was based on data developed by VISTAS contractors and 
submitted by the states to the 2002 National Emissions Inventory. 
Several iterations of the 2002 inventories were developed for the 
different emission source categories resulting from revisions and 
updates to the data. This resulted in the use of version G2 of the 
updated 2002 emissions inventory, which does not include the boiler 
MACT reductions.
    EPA also notes that DAQ not only acknowledges that the final 2009 
inventory and modeling demonstration include emissions reductions

[[Page 21667]]

attributable to the vacated rule, but also provides a reasonable 
demonstration for why such inclusion does not impact the results of the 
modeling. Following detailed analysis and presentation of calculations, 
DAQ summarizes that the emissions sensitivity results for the Boyd 
County, Kentucky, monitor indicate that the SO2 and primary 
PM2.5 emissions assumed under the vacated boiler MACT would 
result in a total increase in the ambient PM2.5 
concentration of 0.0009 micrograms per cubic meter ([mu]g/m\3\). DAQ 
reasonably concluded that this level of impact would not change the 
conclusion that the Huntington-Ashland Area would attain the 1997 
Annual PM2.5 NAAQS by its applicable attainment date of 
April 5, 2010. As EPA indicated earlier in this rulemaking, EPA 
determined that the Huntington-Ashland Area attained the standard by 
April 5, 2010. For these reasons, EPA disagrees that the Commenter has 
identified a basis on which EPA should disapprove Kentucky's attainment 
plan.

Big Sandy Power Plant

    Comment 3a: The Commenter asserts that the Big Sandy Power Plant in 
Lawrence County, Kentucky, is the largest single source of 
PM2.5 precursor emissions in the Huntington-Ashland Area and 
raises several issues associated with Kentucky's treatment of the 
plant's emissions. First, the Commenter contends that DAQ's attainment 
year modeling relies on artificially low emissions from the Big Sandy 
Power Plant because, the Commenter alleges, Kentucky modeled attainment 
during 2008, which the Commenter states was the ``largest economic 
recession in recent times.'' To support its contention, the Commenter 
identifies heat input data and SO2 and NOX 
emissions data for Big Sandy's Unit 1 and Unit 2 for the years 2007 
through 2010. The Commenter concludes by saying that EPA must require 
Kentucky's SIP to include enforceable limits for both Big Sandy units, 
restricting emissions to the lowest levels achieved during the 
attainment modeling years, 2007-2011.
    Response 3a: As an initial point of clarification, Kentucky modeled 
attainment during 2009, not 2008 as stated by the Commenter. See 
Chapter 6 of the attainment demonstration narrative. Additionally, as 
shown in EPA's January 30, 2012, proposal notice, all 2009 predicted 
(modeled) annual PM2.5 design values for the monitors of the 
Huntington-Ashland Area were higher than the values actually measured 
at those sites in 2009. Further, the emissions assumed for the Big 
Sandy Power Plant were projections based upon DAQ's knowledge of the 
facility's future plans when the modeling was performed, not actual 
emissions that occurred in 2008. Based on actual ambient data, EPA has 
already determined that the Area attained the 1997 Annual 
PM2.5 standard by its April 5, 2010, attainment date. The 
2008 economic downturn was irrelevant to, and in fact occurred after, 
the modeling results were produced. Finally, EPA finds that the 
modeling conducted for the 2009 attainment year used the VISTAS Best & 
Final emissions inventory. See PM2.5 attainment plan 
submittal, Appendix F (``DRAFT Documentation of the Base G2 and Best & 
Final 2002 Base Year, 2009 and 2018 Emission Inventories for VISTAS''), 
page 3. This inventory shows Big Sandy Unit 1 having neither selective 
catalytic reduction (SCR) nor a scrubber in 2009, and Unit 2 having SCR 
since 2003 but no scrubber in 2009. See PM2.5 attainment 
plan submittal, Appendix I (``EGU CONTROLS FOR COAL AND OIL/GAS UNITS 
FOR THE BEST & FINAL INVENTORY'') of Appendix F, page 260. This is 
consistent with what is shown for these units on EPA's Clean Air Market 
Division's Web site. For these reasons, EPA has determined that the 
Commenter has not provided a basis on which to disapprove the revision 
with respect to the above-described modeling issues.
    With regard to the Commenter's statements about emission limits, 
the Big Sandy facility has numerous emission limitations for relevant 
pollutants. In addition, the facility was included in the October 2007 
federal Consent Decree resolving an enforcement matter between EPA and 
American Electric Power Company which operates the Big Sandy facility. 
See http://www.epa.gov/compliance/resources/cases/civil/caa/americanelectricpower1007.html (last visited 3/15/12) for additional 
information. The facility is also subject to a number of other CAA 
programs including but not limited to the regional haze program. As 
part of Kentucky's regional haze SIP, on which EPA recently took final 
action, the facility will be installing ammonia injection controls on 
Unit 1 and flue gas desulfurization on Unit 2.\4\ Through these and 
other requirements, the facility is subject to enforceable emission 
limits. For these reasons, EPA disagrees that the Commenter has 
identified a basis on which EPA should disapprove Kentucky's attainment 
plan.
---------------------------------------------------------------------------

    \4\ Final action was signed by the Region 4 Administrator on 
March 13, 2012.
---------------------------------------------------------------------------

    Comment 3b: The Commenter states that DAQ's attainment 
demonstration modeling lists emission controls at the Big Sandy Power 
Plant inaccurately. The Commenter contends that DAQ made adjustments to 
its Integrated Planning Model (IPM) results for the 2009 and 2018 
electric generating unit (EGU) inventories to account for various 
control measures and that this renders DAQ's modeling flawed for the 
attainment year of 2009. The Commenter concludes that EPA should 
require DAQ to include in the Kentucky SIP an enforceable schedule for 
installation of a SCR and scrubber at Big Sandy.
    Response 3b: As noted in the response above, the modeling presented 
by Kentucky used the correct assumptions about emission controls at Big 
Sandy in 2009. The 2002 emissions inventory was based on data that was 
developed by the VISTAS contractors and submitted by the states to the 
2002 National Emissions Inventory. As required by section 172(c)(3), 
and as discussed in the modeling documentation submitted by Kentucky, 
the 2002 base year inventory is an inventory of actual emissions in the 
Area. For the projected 2009 attainment year inventory, VISTAS relied 
primarily on the IPM to project future power generation and to 
calculate the impact of future emission control programs as of October 
1, 2007. The State and local agencies were then asked to identify any 
updates needed to better reflect current information on when and where 
future controls would occur based on the best available data from state 
rules, enforcement agreements, compliance plans, permits and other 
sources. See PM2.5 attainment plan submittal, Appendix F 
(``DRAFT Documentation of the Base G2 and Best & Final 2002 Base Year, 
2009 and 2018 Emission Inventories for VISTAS''). Kentucky indicated 
that Big Sandy Unit 1 was not expected to have a scrubber or SCR 
control operational in 2009 (IPM had projected these controls would be 
in use by Big Sandy Unit 1 in 2009). In February 2008, VISTAS used this 
updated information in completing the Best & Final inventory, which was 
used in the modeling relied upon by Kentucky.
    Further, as explained earlier, the facility is subject to several 
CAA programs involving the installation of controls and/or specific 
emission limits for relevant pollutants. The Area has demonstrated 
attainment of the PM2.5 NAAQS already and, considering 
future controls and limits, EPA disagrees that the Commenter has 
identified a basis on which EPA should disapprove Kentucky's attainment 
plan.

[[Page 21668]]

Reasonably Available Control Measures

    Comment 4a: The Commenter raises several issues regarding the 
Huntington-Ashland Area's RACM/RACT analysis. First, the Commenter 
states that DAQ did not conduct a RACM/RACT analysis for this Area, but 
rather, another nearby area, the bi-state Louisville Area (Kentucky and 
Indiana).
    Response 4a: Kentucky's December 3, 2008, SIP revision included 
attainment plans for all three of Kentucky's nonattainment areas for 
the 1997 Annual PM2.5 NAAQS: Louisville, Kentucky-Indiana; 
Cincinnati-Hamilton, Ohio-Kentucky-Indiana; and Huntington-Ashland, 
West Virginia-Kentucky-Ohio. Although DAQ summarizes, in chapter 7 of 
the December 3, 2008 SIP revision, a detailed air quality analysis 
contracted for the Louisville Area, the overall RACM and RACT 
discussion is intended for all three of the identified PM2.5 
nonattainment areas.
    EPA interprets RACT for PM2.5 as linked to attainment 
needs of an area. If an area is attaining the PM2.5 NAAQS, 
EPA deems the RACT requirement to be satisfied. Therefore, under EPA's 
interpretation of the RACT requirement, as it applies to 
PM2.5, Kentucky has satisfied the requirement.
    In accordance with 40 CFR section 51.1004(c), EPA's September 7, 
2011, determination that the Huntington-Ashland Area has attained the 
1997 Annual PM2.5 NAAQS suspended the requirement for the 
Area to submit an attainment demonstration and associated RACM, 
including RACT, related to the 1997 Annual PM2.5 NAAQS. EPA 
has noted that certain language in the preamble of the PM2.5 
Implementation Rule contradicts the regulatory text in 40 CFR 
51.1004(c). On May 22, 2008, EPA issued a memorandum ``to eliminate any 
confusion that could result from this erroneous statement.'' Memorandum 
from William T. Harnett, Director, Air Quality Policy Division to 
Regional Air Division Directors, ``PM2.5 Clean Data Policy 
Clarification.'' This memorandum states:
    ``Section 51.1004(c) provides that: `Upon a determination by EPA 
that an area designated nonattainment for the PM2.5 NAAQS 
has attained the standard, the requirements for such area to submit 
attainment demonstrations and associated reasonably available control 
measures, reasonable further progress plans, contingency measures, and 
other planning SIPs related to attainment of the PM2.5 NAAQS 
shall be suspended. * * *'
    ``Section 51.1010 provides in part: `For each PM2.5 
nonattainment area, the State shall submit with the attainment 
demonstration a SIP revision demonstrating that it has adopted all 
reasonably available control measures (including RACT for stationary 
sources) necessary to demonstrate attainment as expeditiously as 
practicable and to meet any RFP requirements.'
    ``Thus the regulatory text defines RACT as included in RACM, and 
provides that it is only required insofar as it is necessary to advance 
attainment. See also section 51.1010(b). As a result, when an area is 
attaining the standard, the suspension of the RACM requirement pursuant 
to 51.1004(c) necessarily includes the suspension of the RACT 
requirement.''
    EPA has already determined that the Huntington-Ashland Area 
attained the 1997 Annual PM2.5 NAAQS by its April 2010 
attainment date based on controls that were in force at least through 
that date. In addition, as explained above, modeling done for the 
Cross-State Air Pollution Rule demonstrates that the Area would attain 
in the absence of CAIR. For these reasons, EPA disagrees that the 
Commenter has identified a basis on which EPA should disapprove 
Kentucky's attainment plan.
    Comment 4b: The Commenter appears to disagree with EPA's 
interpretation of 40 CFR 51.1010 and contends that measures must be 
adopted which are necessary to demonstrate attainment as expeditiously 
as practicable.
    Response 4b: Section 51.1010(b) of the PM2.5 
Implementation Rule provides that ``[p]otential measures that are 
reasonably available considering technical and economic feasibility 
must be adopted as RACM if, considered collectively, they would advance 
the attainment date by one year or more.'' In order to advance the 
attainment date by at least one year, the state would first have to 
know their projected attainment date. As stated in EPA's January 30, 
2012, proposed rulemaking, Kentucky participated in a modeling project 
of the Association for Southeastern Integrated Planning and VISTAS. 
Modeling projections were provided in January 2008. While showing the 
Area would attain by no later than five years from designation (i.e., 
by no later than April 5, 2010), there was not time for the State to 
develop measures that could possibly advance the attainment date by one 
year. This would have been particularly true for any new control 
requirements, which would have required a legislative rulemaking 
process that can take a year or more. Further, as stated above, because 
the Huntington-Ashland Area is now attaining the PM2.5 
standard, Kentucky has satisfied the RACT requirement without need for 
further measures. See Memorandum from William T. Harnett cited above. 
In addition, as explained earlier, Kentucky did provide a RACM/RACT 
analysis that applied for the Huntington-Ashland Area. For these 
reasons, EPA disagrees that the Commenter has identified a basis on 
which EPA should disapprove Kentucky's attainment plan.
    Comment 4c: The Commenter opines that EPA will not be able to 
redesignate the Huntington-Ashland nonattainment area until it conducts 
a RACM/RACT analysis, citing Wall v. EPA, 265 F.3d 426, 442 (6th Cir. 
2001).
    Response 4c: This action does not propose to redesignate the 
Huntington-Ashland Area to attainment. However, EPA disagrees with the 
Commenter's assertion that EPA will not be able to redesignate the 
Huntington-Ashland Area until a RACM/RACT analysis is conducted. The 
September 7, 2011, determination that the Huntington-Ashland Area 
attained the 1997 Annual PM2.5 NAAQS suspends the obligation 
to meet attainment planning requirements, including the RACM/RACT 
requirements so long as the Area continues to attain the 1997 Annual 
PM2.5 NAAQS. See 40 CFR 51.1004(c). EPA disagrees with the 
Commenter's invocation, in the context of this rulemaking, of the 
ruling in Wall v. EPA. The Wall court addressed only the issue of 
adoption of RACT for ozone nonattainment areas under Part D subpart 2 
of the Clean Air Act. Thus that case addressed a distinct set of 
statutory provisions for a different RACT requirement applicable only 
to ozone nonattainment areas. The Wall RACT ruling is therefore not 
applicable or pertinent to the PM2.5 RACT provision here. 
For these reasons, EPA disagrees that the Commenter has identified a 
basis on which EPA should disapprove Kentucky's attainment plan.

On-Road Mobile Source Emissions Calculations

    Comment 5: The Commenter states that EPA recently decided to allow 
up to 15 percent ethanol content in gasoline (E15), 76 FR 4662 (Jan. 
26, 2011), which the Commenter believes will lead to an increase in 
NOX and VOC emissions from many cars and light duty trucks, 
particularly those with pollution control devices not designed to deal 
with E15. The Commenter then contends that there is no indication that 
DAQ or EPA accounted for the increase in NOX and VOC 
emissions that will result from use of E15.
    Response 5: EPA disagrees with the Commenter's suggestion that the

[[Page 21669]]

Ethanol 15 (E15) rulemaking cited to by the Commenter will result in a 
significant increase in NOX and VOC emissions in the 
Huntington-Ashland Area. As a general point of background, E15 is not 
mandated by EPA. Rather, EPA granted a partial waiver for vehicles 
model years 2001 and newer, light duty vehicles (76 FR 4662) to be able 
to use E15. To receive a waiver under CAA section 211(f)(4), a fuel or 
fuel additive manufacturer must demonstrate that a new fuel or fuel 
additive will not cause or contribute to the failure of engines or 
vehicles to achieve compliance with the emission standards to which 
they have been certified over their useful life. Data used to act upon 
the approval of the E15 partial waiver showed that model year 2001 and 
newer vehicles would still meet their certified engine standards for 
emissions for both short and long term use, and use of E15 would not 
significantly increase the emission from these engines. EPA's partial 
waiver for E15 is based on extensive studies done by the Department of 
Energy, as well as the Agency's engineering assessment to determine the 
effects of exhaust and evaporative emissions for the fleet prior to the 
partial waiver. The criteria for granting the waiver was not that there 
are no emission impacts of E15, but rather that vehicles operating on 
it would not be expected to violate their emission standards in-use.
    As discussed in the waiver decision, there are expected to be some 
small emission impacts. E15 is expected to cause a small immediate 
emission increase in NOX emissions. However, due to its 
lower volatility than the E10 currently in-use, its use is also 
expected to result in lower evaporative VOC emissions. Any other 
emissions impacts related to E15 would be a result of misfueling of E15 
in model year 2000 and older vehicles, and recreational or small 
engines. EPA has approved regulations dealing specifically with the 
mitigation of misfueling and reducing the potential increase in 
emissions from misfueling. 76 FR 44406 (July 25, 2011).
    The partial waivers that EPA has granted to E15 do not require that 
E15 be made or sold. The waivers merely allow fuel or fuel additive 
manufacturers to introduce E15 into commerce if they meet the waivers' 
conditions. Other federal, state and local requirements must also be 
addressed before E15 may be sold. The granting of the partial waivers 
is only one of several requirements for registration and distribution 
of E15.
    E15 may never be used in Kentucky. But even if it is, there is no 
indication that any potential emission impacts would significantly 
alter DAQ's calculation of on-road mobile source emissions because of 
the small and opposite direction of emission impacts, the limited 
vehicle fleet which can use it, and the measures required to avoid 
mitigating misfueling. For these reasons, EPA disagrees that the 
Commenter has identified a basis on which EPA should disapprove 
Kentucky's attainment plan.

IV. Final Action

    EPA is approving a revision to the Kentucky SIP submitted to EPA by 
DAQ on December 3, 2008, for the purpose of demonstrating how the 
Kentucky portion of the Huntington-Ashland Area will achieve attainment 
of the 1997 Annual PM2.5 NAAQS by no later than April 5, 
2010. EPA previously determined on September 7, 2011, that the 
Huntington-Ashland Area attained the 1997 Annual PM2.5 NAAQS 
by its April 2010 attainment date. See 76 FR 55542, September 7, 2011. 
EPA has also determined that the Area has since continued to attain 
that NAAQS. Kentucky's December 3, 2008, SIP revision includes an 
attainment demonstration; RACT and RACM analyses; RFP; base-year and 
attainment-year emissions inventories; contingency measures; and, for 
transportation conformity purposes, an insignificance determination for 
direct PM2.5 and NOX for the mobile source 
contribution to ambient PM2.5 levels for the Commonwealth's 
portion of the Huntington-Ashland Area. After review and consideration 
of the relevant information and data, including the comments received, 
EPA has determined that Kentucky's December 3, 2008, SIP revision is 
consistent with the CAA and EPA's PM2.5 Implementation Rule, 
and as such EPA is approving this SIP revision.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is 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);
     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 Clean Air Act; 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, 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 
Commonwealth, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

[[Page 21670]]

    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 June 11, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: March 29, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    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 S--Kentucky

0
2. Section 52.920(e) is amended by adding a new entry at the end of the 
table for ``Huntington-Ashland 1997 PM2.5 Attainment Plan'' 
to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                       Applicable       State submittal
   Name of non-regulatory SIP        geographic or       date/effective    EPA approval date      Explanation
            provision              nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Huntington-Ashland 1997 PM2.5     Boyd County;                12/03/2008  4/11/2012 [Insert   For the 1997 PM2.5
 Attainment Plan.                  Portion of                              citation of         NAAQS.
                                   Lawrence County.                        publication].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-8561 Filed 4-10-12; 8:45 am]
BILLING CODE 6560-50-P