Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 76883 

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 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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by March 1, 2013. 

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 CAA 

section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides. 

Dated: September 10, 2012. 

James B. Martin, 

Regional Administrator, Region 8. 

For the reasons discussed in the 

preamble, 40 CFR chapter I is amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for Part 52 

continues to read as follows: 

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

Subpart G—Colorado 

■ 2. Section 52.320 is amended by 

adding paragraph (c)(108)(i)(C) and 

adding paragraph (c)(124) to read as 

follows: 

§ 52.320 Identification of plan. 

* * * * * 

(c) * * * 

(108) * * * 

(i) * * * 

(C) Colorado Air Quality Control 

Commission, Regulation Number 3, 5 

CCR 1001–5, Stationary Source 

Permitting and Air Pollutant Emission 

Notice Requirements, Part D, 

Concerning Major Stationary Source 

New Source Review and Prevention of 

Significant Deterioration, Section XIV.F, 

Long Term Strategy, subsection XIV.F.1. 

introductory text and XIV.F.1.c; adopted 

January 7, 2011; effective February 14, 

2011. 

* * * * * 

(124) On May 25, 2011 the State of 

Colorado submitted revisions to its State 

Implementation Plan to address the 

requirements of EPA’s regional haze 

rule. 

(i) Incorporation by reference. 

(A) Colorado Air Quality Control 

Commission, Regulation Number 3, 5 

CCR 1001–5, Stationary Source 

Permitting and Air Pollutant Emission 

Notice Requirements, Part F, Regional 

Haze Limits—Best Available Retrofit 

Technology (BART) and Reasonable 

Progress (RP), Section VI, Regional Haze 

Determinations, and Section VII, 

Monitoring, Recordkeeping, and 

Reporting for Regional Haze Limits; 

adopted January 7, 2011; effective 

February 14, 2011. 

(B) Colorado Air Quality Control 

Commission, Regulation Number 7, 5 

CCR 1001–9, Control of Ozone via 

Ozone Precursors (Emissions of Volatile 

Organic Compounds and Nitrogen 

Oxides), Section XVII, (State Only, 

except Section XVII.E.3.a. which was 

submitted as part of the Regional Haze 

SIP) Statewide Controls for Oil and Gas 

Operations and Natural Gas-Fired 

Reciprocating Internal Combustion 

Engines, subsection E.3.a, (Regional 

Haze SIP) Rich Burn Reciprocating 

Internal Combustion Engines; adopted 

January 7, 2011; effective February 14, 

2011. 

[FR Doc. 2012–31192 Filed 12–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2011–0468; FRL–9764–9] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Ohio; Redesignation of the 

Ohio Portion of the HuntingtonAshland 1997 Annual Fine Particulate 

Matter Nonattainment Area to 

Attainment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving, under the 

Clean Air Act (CAA), the state of Ohio’s 

request to redesignate the Ohio portion 

of the Huntington-Ashland (OH–WV– 

KY) nonattainment area (Lawrence, 

Scioto, and portions of Adams and 

Gallia Counties) to attainment for the 

1997 annual National Ambient Air 

Quality Standard (NAAQS or standard) 

for fine particulate matter (PM2.5). The 

Ohio Environmental Protection Agency 

(Ohio EPA) submitted its request on 

May 4, 2011. EPA determined that the 

entire Huntington-Ashland area has 

attained the 1997 annual PM2.5

standard, and proposed to approve 

Ohio’s request to redesignate the Ohio 

portion of the area on December 22, 

2011. EPA’s final rulemaking involves 

several related actions. EPA has 

determined that the entire HuntingtonAshland area continues to attain the 

1997 annual PM2.5 standard. EPA is 

approving, as a revision to the Ohio 

State Implementation Plan (SIP), the 

state’s plan for maintaining the 1997 

annual PM2.5 NAAQS in the area 

through 2022. EPA is also approving the 

2005 and 2008 emissions inventories for 

the Ohio portion of the HuntingtonAshland area as meeting the 

comprehensive emissions inventory 

requirement of the CAA. EPA finds 

adequate and is making a finding of 


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76884 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

1On September 7, 2011 EPA published a final 

determination that the Huntington-Ashland area 

has attained the 1997 annual PM2.5 standard. 76 FR 

55542, September 7, 2011. 

insignificance for Ohio motor vehicle 

emissions of nitrogen oxides (NOX) and 

direct PM2.5 for the Huntington-Ashland 

area. EPA, therefore, grants Ohio’s 

request to redesignate the Ohio portion 

of the Huntington-Ashland area to 

attainment for the 1997 PM2.5 annual 

standard. 

DATES: Effective Date: This rule will be 

effective December 31, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification EPA–R05–OAR–2011– 

0468. All documents in these dockets 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. This facility is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Carolyn Persoon at (312) 

353–8290 before visiting the Region 5 

office. 

FOR FURTHER INFORMATION CONTACT: 

Carolyn Persoon, Environmental 

Engineer, Control Strategies Section, Air 

Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–8290, 

persoon.carolyn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background for the actions? 

II. What actions is EPA taking? 

III. What is EPA’s response to comments? 

IV. Why is EPA taking these actions? 

V. Final action 

VI. Statutory and executive order reviews 

I. What is the background for the 

actions? 

On May 4, 2011 the Ohio EPA 

submitted its request to redesignate the 

Ohio portion of the Huntington-Ashland 

nonattainment area to attainment for the 

1997 annual PM2.5 NAAQS, and for EPA 

approval of the state’s SIP revision 

containing an emissions inventory and 

a maintenance plan for the area. On 

December 22, 2011 (76 FR 79593), EPA 

proposed approval of Ohio’s 

redesignation request, emissions 

inventories and plan for maintaining the 

1997 annual PM2.5 NAAQS. EPA also 

proposed approval of Ohio’s 

determination that on-road emissions of 

PM2.5 and NOX are insignificant 

contributors to PM2.5 concentrations in 

the area. Additional background for 

today’s action is set forth in EPA’s 

December 22, 2011, proposed 

rulemaking. 

In the proposed redesignation of the 

Huntington-Ashland area, EPA 

proposed to determine that the emission 

reduction requirements that contributed 

to attainment of the 1997 annual PM2.5

standard in the nonattainment area 

could be considered permanent and 

enforceable. At the time of proposal, 

EPA noted that the Clean Air Interstate 

Rule (CAIR), which had been in place 

through 2011, had been replaced by the 

recently promulgated Cross-State Air 

Pollution Rule (CSAPR). 76 FR 48208, 

August 8, 2011. CSAPR included 

regulatory changes to sunset (i.e., 

discontinue) CAIR and the CAIR Federal 

Implementation Plans (FIPs) for control 

periods in 2012 and beyond. See 76 FR 

48322. Although Ohio’s redesignation 

request and maintenance plan relied on 

reductions associated with CAIR, EPA 

proposed to approve the request based 

in part on the fact that CSAPR achieved 

‘‘similar or greater reductions in the 

relevant areas in 2012 and beyond.’’ 76 

FR 79598. On December 30, 2011, eight 

days after the proposed redesignation, 

the U.S. Court of Appeals for the D.C. 

Circuit (referred to as D.C. Circuit or 

court hereafter) issued an order 

addressing the status of CSAPR and 

CAIR in response to motions filed by 

numerous parties seeking a stay of 

CSAPR pending judicial review. In that 

order, the court stayed CSAPR pending 

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 was expected to continue to 

administer CAIR in the interim until 

judicial review of CSAPR was 

completed. 

On August 21, 2012, the D.C. Circuit 

issued a decision in EME Homer 

Generation, L.P. v. EPA, to vacate and 

remand CSAPR and ordered EPA to 

continue administering CAIR pending 

the promulgation of a valid 

replacement. That judgment is not yet 

final as the mandate has not been issued 

by the court and on October 5, 2012, 

EPA filed a petition for rehearing en 

banc asking the full court to reconsider 

that decision. EPA has determined that 

it is appropriate to move forward with 

final approval of this redesignation 

action, even though the emission 

reductions associated with CSAPR that 

EPA referenced in the proposal notice 

may not be relied upon at this time 

given the rule’s legal status. As 

discussed in greater detail in this notice, 

the submission received from the state 

relied on reductions achieved from 

CAIR and demonstrated that the 

Huntington-Ashland area achieved 

attainment due in part to emission 

reductions required by CAIR. The D.C. 

Circuit’s order that EPA continue 

administering CAIR until a valid 

replacement rule is developed ensures 

that the reductions that led to 

attainment are sufficiently permanent 

and enforceable to meet the 

requirements of CAA section 

107(d)(3)(E)(iii). 

II. What actions is EPA taking? 

EPA has determined that the entire 

Huntington-Ashland area has attained 

and continues to attain the 1997 annual 

PM2.5 standard 1 (76 FR 55542) and that 

the Ohio portion of the area meets the 

requirements for redesignation under 

section 107(d)(3)(E) of the CAA. On 

September 7, 2011, at 76 FR 55542, EPA 

finalized its determinations that the 

Huntington-Ashland area attained the 

1997 PM2.5 NAAQS and that the area 

attained the 1997 PM2.5 NAAQS by the 

applicable attainment date of April 5, 

2010. Subsequent to EPA’s final 

determination of attainment and 

proposed redesignation of the Ohio 

portion of the Huntington-Ashland area, 

additional monitoring data have become 

available, quality-assured, and certified. 

Table 1 below sets forth design values 

for 2007–2009, 2008–2010, and 2009– 

2011, last of which is based on the most 

current 3-years of data, which shows 

that the area continues to attain. 

Preliminary data available for 2012 also 

are consistent with continued 

attainment. 


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4EPA in this notice is not addressing the requests 

of Kentucky and West Virginia for redesignation of 

those states’ portions of the Huntington-Ashland 

area. 

5Fine particulates directly emitted by sources 

and not formed in a secondary manner through 

chemical reactions or other processes in the 

atmosphere. 

6NOX and SO2 are precursors for fine particulates 

through chemical reactions and other related 

processes in the atmosphere. 

7The Commenter mentions that EPA may not rely 

on emission reductions associated with the NOX

SIP Call but does not provide any specific 

arguments to support this contention. 

TABLE 1—DESIGN VALUE CONCENTRATIONS FOR THE HUNTINGTON-ASHLAND AREA FOR THE 1997 ANNUAL PM2.5

NAAQS MICROGRAM PER CUBIC METER (μG/M3) 

Location County, State Monitor ID 

3-Year Design Values 

2007–2009 2008–2010 2009–2011 

Huntington ............................................ Cabell, WV ............ 54–011–0006 14.3 13.1 12.1 

Ashland Primary (FIVCO) .................... Boyd, KY ............... 21–019–0017 12.4 11.4 10.8 

Lawrence County Hospital (LCH) 2 ...... Lawrence, OH ....... 39–087–0010 13.3 NA NA 

Ironton Department of Transportation 

(DOT) 3.

Lawrence, OH ....... 39–087–0012 12.2 12.2 11.4 

Portsmouth ........................................... Scioto, OH ............ 39–145–0013 12.3 11.6 10.9 

2The Lawrence County Hospital Site was shut down in February 2008. The Ironton DOT site began operation on the same day the Lawrence 

County Hospital Site ceased monitoring. 3The Ironton DOT site did not begin operation until February 2008; however, an analysis of air quality data at this location, as provided for in 

40 CFR part 50 appendix N, was done showing that the area would attain the standard for the 2007–2009 and 2008–2010 monitoring periods. 

Because the area continues to attain 

and meets all other requirements for 

redesignation under CAA section 

107(d)(3)(E), EPA is approving the 

request from the state of Ohio to change 

the legal designation of the Ohio portion 

of the Huntington-Ashland area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS.4

EPA is taking several actions related 

to Ohio’s PM2.5 redesignation request, as 

discussed below. 

EPA is approving, pursuant to CAA 

section 175A, Ohio’s 1997 annual PM2.5

maintenance plan for the HuntingtonAshland area as a revision to the Ohio 

SIP (such approval being one of the 

CAA criteria for redesignation to 

attainment status). The maintenance 

plan is designed to keep the 

Huntington-Ashland area in attainment 

of the 1997 annual PM2.5 NAAQS 

through 2022. 

EPA is approving, pursuant to CAA 

section 172(c)(3), both the 2005 and 

2008 emission inventories for primary 

PM2.5,5 NOX, and SO2,6 documented in 

Ohio’s PM2.5 redesignation request 

submittal. These emission inventories 

satisfy the requirement in section 

172(c)(3) of the CAA for a 

comprehensive, current emission 

inventory. 

Finally, for transportation conformity 

purposes EPA is approving Ohio’s 

determination that on-road emissions of 

PM2.5 and NOX are insignificant 

contributors to PM2.5 concentrations in 

the area. Further discussion of the basis 

for these actions was provided in the 

proposed rulemaking on December 22, 

2011 (76 FR 79593). 

III. What is EPA’s Response to 

Comments? 

EPA received two sets of comments 

on its proposed rulemaking. The Ohio 

Utilities Group submitted comments in 

support of the redesignation of the Ohio 

portion of the Huntington-Ashland area, 

and on behalf of Sierra Club, Robert 

Ukeiley submitted adverse comments. A 

summary of Sierra Club’s comments and 

EPA’s responses are provided below. 

Comment 1a: The Commenter 

contends that EPA cannot rely on 

reductions associated with the NOX SIP 

Call,7 CAIR, and CSAPR in order to 

redesignate the Huntington-Ashland 

area because reductions from these 

programs are not permanent and 

enforceable. The Commenter points out 

that EPA noted that the area is impacted 

by pollution from electric generating 

units (EGUs) and that the Ohio 

submittal ‘‘credits reductions’’ to three 

rules that reduce SO2 and NOX

emissions from power plants, the NOX

SIP Call, CAIR, and CSAPR. 

Specifically, the Commenter argues 

that CAIR reductions are not permanent 

and enforceable because EPA stated in 

the proposal that CAIR emission 

reductions only run through 2011. The 

Commenter also cites statements by EPA 

made in the context of other rules 

indicating that CAIR is legally deficient, 

remanded, and therefore temporary, in 

both the regional haze proposed 

rulemakings (76 FR 78194, 78200, 

December 16, 2011), as well as a 

redesignation proposal for Cincinnati 

(76 FR 65458, 65460, October 21, 2011). 

The Commenter argues that EPA cannot 

rely on CAIR because it is a cap-andtrade program. The Commenter cites to 

NRDC v. EPA, 571 F.3d 1245, 1257 (D.C. 

Cir. 2009) for support of the proposition 

that, because EPA cannot predict which 

sources will reduce emissions, EPA 

cannot rely on cap-and-trade programs 

for future reductions. 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. 

Response 1a: EPA disagrees with 

Commenter that it must disapprove 

Ohio’s redesignation request because 

the submittal relies on CAIR. First, 

although Ohio’s redesignation request 

references CAIR and includes emission 

reductions associated with CAIR, EPA’s 

modeling indicates that the area would 

attain and maintain the 1997 PM2.5

NAAQS even in the absence of CAIR. 

Second, the EPA statements cited by the 

Commenter regarding the status of CAIR 

were made prior to the D.C. Circuit’s 

decision to vacate CSAPR and to leave 

CAIR in place. Third, EPA disagrees 

with the Commenter’s assertion that 

reductions may not be relied upon for 

redesignation purposes if those 

reductions stem from an emissions 

trading program. Finally, EPA believes 

that the area meets all the requirements 

for redesignation regardless of the status 

of CAIR, because the area has other 

measures, such as consent decrees on 

EGUs. 

As an initial matter, EPA notes that 

the modeling EPA conducted during the 

rulemaking for the CSAPR rulemaking 

demonstrates that the HuntingtonAshland area would attain and maintain 

the 1997 PM2.5 NAAQS even without 

CAIR or a rule to replace CAIR. Nothing 

in the EME Homer decision undermines 

that conclusion or suggests that the air 

quality modeling conducted during the 

rulemaking was flawed. As such, there 


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8The court’s judgment is not yet final as the 

mandate has not issued and on October 5, 2012, 

EPA filed a petition asking for rehearing en banc. 

9The court specifically elected not to vacate the 

RACT provision and left open the possibility that 

is no basis to conclude that it would be 

improper to redesignate the area even in 

the absence of CAIR. Moreover, the 

commenter’s assertions regarding the 

status of CAIR and the extent to which 

emission reductions associated with 

CAIR may be relied upon in 

redesignations are flawed for the 

reasons described below. 

The Commenter points out that EPA 

made statements that CAIR reductions 

were expiring in 2011 (76 FR 79593, 

December 22, 2011) and were temporary 

(76 FR 78194, 78200, December 16, 

2011; 76 FR 65458, 65460, October 21, 

2011). However, these statements 

should be viewed in light of changes in 

the legal context of CAIR and CSAPR, 

which occurred subsequent to those 

statements and had a significant effect 

on the status of CAIR. 

On May 12, 2005, EPA published 

CAIR, which requires significant 

reductions in emissions of SO2 and NOX

from electric generating units to limit 

the interstate transport of these 

pollutants and the ozone and fine 

particulate matter they form in the 

atmosphere. See 76 FR 70093. The D.C. 

Circuit initially vacated CAIR, North 

Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 

2008), but ultimately remanded the rule 

to EPA without vacatur to preserve the 

environmental benefits provided by 

CAIR, North Carolina v. EPA, 550 F.3d 

1176, 1178 (D.C. Cir. 2008). In response 

to the court’s decision, EPA issued 

CSAPR, to address interstate transport 

of NOX and SO2 in the eastern United 

States. See 76 FR 48208 (August 8, 

2011). On August 21, 2012, the D.C. 

Circuit issued a decision to vacate 

CSAPR. In that decision, it also ordered 

EPA to continue administering CAIR 

‘‘pending * * * development of a valid 

replacement.’’ EME Homer City 

Generation, L.P. v. EPA, 696 F.3d 7, 38 

(D.C. Cir. 2012).8

The agency’s statements cited by the 

Commenter must be viewed in context: 

They were made after CSAPR had been 

promulgated to sunset and replace 

CAIR, and before the D.C. Circuit stayed 

CSAPR and issued its decision in EME 

Homer to vacate the rule. In that 

decision, the court ordered EPA to 

continue implementing CAIR until a 

valid replacement rule is promulgated. 

The decision thus had a significant 

impact on the CAIR programs and EPA’s 

evaluation of the status of emission 

reductions achieved pursuant to those 

programs. In light of these unique 

circumstances and for the reasons 

explained below, EPA is finalizing the 

redesignation and the related SIP 

revision for the Huntington-Ashland 

area, including Ohio’s plan for 

maintaining attainment of the PM2.5

standard. The air quality modeling 

analysis conducted for CSAPR 

demonstrates that the HuntingtonAshland area would be able to attain the 

PM2.5 standard even in the absence of 

either CAIR or CSAPR. See ‘‘Air Quality 

Modeling Final Rule Technical Support 

Document,’’ appendix B, B–55 to B–56. 

This modeling is available in the docket 

for this proposed redesignation action. 

Nothing in the D.C. Circuit’s August 

2012 decision disturbs or calls into 

question that conclusion or the validity 

of the air quality analysis on which it is 

based. 

In addition, CAIR remains in place 

and enforceable until substituted by a 

‘‘valid’’ replacement rule. Ohio’s CAIR 

provisions can be found in Ohio 

Administrative Code Chapter 3745–109. 

On February 1, 2008, at 73 FR 6034, 

EPA approved an ‘‘abbreviated SIP’’ 

covering several of Ohio’s CAIR 

provisions, including CAIR NOX

allocations. On September 25, 2009 (74 

FR 48857), EPA approved a full CAIR 

SIP for Ohio incorporating all of Ohio’s 

CAIR provisions. These SIP provisions 

remain in place and are federally 

enforceable. And, because CAIR has 

been in force since 2005, the monitoring 

data used to demonstrate the area’s 

attainment of the 1997 annual PM2.5

NAAQS by the April 2010 attainment 

deadline were impacted by CAIR. CAIR 

reductions began as early as 2007, with 

full program requirements beginning in 

2009. However, to the extent that Ohio’s 

redesignation request and maintenance 

plan rely on CAIR, the recent directive 

from the D.C. Circuit in EME Homer 

ensures that the reductions associated 

with CAIR will be permanent and 

enforceable for the necessary time 

period. EPA has been ordered by the 

court to develop a new rule and the 

opinion makes clear that after 

promulgating that new rule EPA must 

provide states an opportunity to draft 

and submit SIPs to implement that rule. 

CAIR thus cannot be replaced until EPA 

has promulgated a final rule through a 

notice-and-comment rulemaking 

process, states have had an opportunity 

to draft and submit SIPs, EPA has 

reviewed the SIPs to determine if they 

can be approved, and EPA has taken 

action on the SIPs, including 

promulgating a FIP if appropriate. These 

steps alone will take many years, even 

with EPA and the states acting 

expeditiously. The court’s clear 

instruction to EPA that it must continue 

to administer CAIR until a ‘‘valid 

replacement’’ exists provides an 

additional backstop; by definition, any 

rule that replaces CAIR and meets the 

court’s direction would require upwind 

states to have SIPs that eliminate 

significant contributions to downwind 

nonattainment and prevent interference 

with maintenance in downwind areas. 

Further, in vacating CSAPR and 

requiring EPA to continue administering 

CAIR, the D.C. Circuit emphasized that 

the consequences of vacating CAIR 

‘‘might be more severe now in light of 

the reliance interests accumulated over 

the intervening four years.’’ EME 

Homer, 696 F.3d at 38. The accumulated 

reliance interests include the interests of 

states who reasonably assumed they 

could rely on reductions associated with 

CAIR which brought certain 

nonattainment areas into attainment 

with the NAAQS. If EPA were 

prevented from relying on reductions 

associated with CAIR in redesignation 

actions, states would be forced to 

impose additional, redundant 

reductions on top of those achieved by 

CAIR. EPA believes this is precisely the 

type of irrational result the court sought 

to avoid by ordering EPA to continue 

administering CAIR. For these reasons 

also, EPA believes it is appropriate to 

allow states to rely on CAIR, and the 

existing emissions reductions achieved 

by CAIR, as sufficiently permanent and 

enforceable for purposes such as 

redesignation. Following promulgation 

of the replacement rule, EPA will 

review SIPs as appropriate to identify 

whether there are any issues that need 

to be addressed. 

EPA also disagrees with the 

Commenter that emission reductions 

occurring within the relevant 

nonattainment area cannot be relied 

upon for the purpose of redesignations 

if they are associated with the emissions 

trading programs established in 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 Reasonably Available 

Control Technology (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.9 Id. at 1256– 


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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. 

10Entered with the United States District Court 

For The Southern District Of Ohio Eastern Division 

(United States of America and State Of New York, 

et al., v. American Electric Power Service Corp., et 

al., No. C2–99–1250 and 1182 (consolidated)). 

11 Id. 12Entered with the United States District Court 

For The Southern District Of Ohio, Eastern Division 

(Sierra Club and Marilyn Wall v. The Dayton Power 

and Light Company, Duke Energy Ohio, Inc., and 

Columbus Southern Power Co., Civil Action No. 2: 

04-cv-905). 13The rule was stayed as of the time of 

submission of comments; it has since been vacated 

by the D.C. Circuit and petitions for rehearing en 

banc are pending. 

58. The court did not hold, as 

Commenter suggests, that emissions 

trading programs must be ignored when 

evaluating redesignation requests. 

There is simply no support for the 

Commenter’s argument that, in 

determining whether to redesignate an 

area, EPA must ignore all emission 

reductions achieved by CAIR simply 

because the mechanism used to achieve 

the reductions is an emissions trading 

program. As a general matter, trading 

programs require total mass emission 

reductions by establishing mandatory 

caps on total emissions to permanently 

reduce the total mass emissions allowed 

by sources subject to the programs, 

validated through rigorous continuous 

emission monitoring and reporting 

regimens. The emission caps and 

associated controls are enforced through 

the associated SIP rules or FIPs. Any 

purchase of allowances and increase in 

emissions by one source necessitates a 

corresponding sale of allowances and 

reduction in emissions by another 

covered source. Given the regional 

nature of PM2.5, the corresponding 

emission reduction will have an air 

quality benefit that will compensate, at 

least in part, for the impact of any 

emission increase. In contrast, emission 

rate limits serve a different purpose and 

do not limit total mass emissions. Total 

mass emissions can vary greatly under 

emission rate programs as demand and 

production vary from year to year. 

There is no support for the 

Commenter’s contention that the 

presence of allowance banking in a 

program somehow renders those 

programs’ emission reduction 

requirements impermanent or 

unenforceable, such 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. As Commenter points out, 

Ohio’s submittal states that ‘‘companies 

installed more controls’’ during the time 

period that CAIR was being developed 

and promulgated. The flexibility under 

a cap and trade system is not about 

whether to reduce emissions. Rather, it 

is about how to reduce them at the 

lowest possible cost. The fact that 

companies anticipate the economic 

benefits of installing controls earlier, 

and reductions thus may occur more 

quickly than required (freeing up 

allowances that may then be banked and 

providing earlier health and 

environmental benefits to the public) 

does not, in any way, undermine the 

permanence or enforceability of the 

requirements in the underlying rule. 

The bank itself was factored into the 

CAIR cap levels that were chosen. The 

bank allows for a ‘‘glide path’’ to final 

cap levels (70 FR 25194, May 12, 2005). 

Further, evaluations have been made to 

see whether banking and trading have 

created emissions ‘‘hot spots.’’ For 

example, since the beginning of the 

Acid Rain Program, there have been no 

emissions hot spots identified or created 

as a result of the program (see ‘‘The 

Acid Rain Program Experience: Should 

We Be Concerned About SO2 Emissions 

Hotspots?’’ at http://epa.gov/airmarkets/ 

resource/acidrain-resource.html). 

Additionally, states and localities may 

impose stricter limits on sources to 

address specific local air quality 

concerns. These limits must be met 

regardless of a source’s accumulated 

allowances. 

In sum, contrary to Commenter’s 

contention, the decision of the 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 redesignations. For the reasons 

explained above, EPA disagrees that the 

Commenter has identified a basis on 

which EPA should disapprove Ohio’s 

redesignation request. 

EPA also notes that CAIR is not the 

only permanent and enforceable 

measure affecting EGU emission 

reductions in the Huntington-Ashland 

area. There have been several consent 

decrees in the area affecting EGUs. First, 

in the Kentucky portion of the 

Huntington-Ashland Area, the Big 

Sandy Power Station was required by a 

federally enforceable consent decree 10

and 2007 settlement agreement to install 

and continuously operate selective 

catalytic reduction (SCR) to reduce NOX

emissions from Unit 2 beginning 

January 1, 2009. The plant is also 

required to install and continuously 

operate flue gas desulfurization (FGD) to 

reduce SO2 emissions from Unit 2 

beginning December 31, 2015. 

Operation of FGD controls has a cobenefit of reducing direct PM2.5

emissions as well. In the Ohio and West 

Virginia portions of the Area, a federally 

enforceable consent decree 11 and 2007 

settlement agreement require the 

General James M. Gavin Power Plant 

(Ohio) and Mountaineer Power Plant 

(West Virginia) to install and 

continuously operate SCR and FGD on 

specified units and the Philip Sporn 

Plant (West Virginia) to retire, retrofit, 

or re-power one unit. Another consent 

decree,12 to which EPA was not a party, 

requires the J.M. Stuart Power Plant 

(Ohio) to install and continuously 

operate SCR on all of its units. To the 

extent that power plant emission 

reductions contributed to attainment in 

the Huntington-Ashland Area, these 

reductions are permanent and 

enforceable. 

Comment 1b: The Commenter claims 

that ‘‘EPA’s proposal indicates that is 

relying heavily on CSAPR to justify its 

redesignation of the HuntingtonAshland area.’’ The Commenter argues 

that EPA cannot rely on CSAPR, 

because it has been stayed,13 thus 

imposing no emission reductions or 

emission limits, and therefore cannot be 

found to impose permanent and 

enforceable emission reductions. The 

Commenter also notes that EPA’s 

proposal of revisions to CSAPR 

undermines EPA’s ability to analyze 

whether reductions required by CSAPR 

will achieve attainment in the 

Huntington-Ashland area. Furthermore, 

Commenter argues that CSAPR cannot 

be relied upon to redesignate the 

Huntington-Ashland area into 

attainment unless the D.C. Circuit 

affirms the rule. The Commenter also 

objects to reliance on CSAPR because 

CSAPR, as a trading program, does not 

impose emission limits on the sources 

impacting air quality in the HuntingtonAshland area that are at least as 

stringent as those sources’ actual 2008 

emission rates. Specifically, the 

Commenter argues that CSAPR does not 

result in permanent and enforceable 

reductions because individual sources 

that impact the area can comply with 

the rule by either meeting their emission 

budgets or by obtaining emission credits 

from other sources that do not impact 

the air quality in the HuntingtonAshland area; and because under 

CSAPR, sources can bank emissions. 

Response 1b: Contrary to 

Commenter’s contention, EPA’s 


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76888 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

14See September 4, 1992 memorandum from John 

Calcagni entitled ‘‘Procedures for Processing 

Requests to Redesignate Areas to Attainment,’’ pp. 

4 and 8–9. 

conclusion that the area has met the 

requirements for redesignation does not 

rely on and is not dependent on CSAPR 

being in place. Ohio’s maintenance plan 

does not rely on future emission 

reductions from CSAPR, and thus EPA’s 

basis for redesignation of the area from 

nonattainment to attainment is 

unaffected by the status of CSAPR. 

Instead, Ohio relied on CAIR in its 

maintenance plan, and as discussed in 

EPA’s response to comment 1a, such 

reliance is appropriate in this context. 

EPA did not rely on CSAPR to provide 

a basis for redesignating the area from 

nonattainment to attainment. Rather, 

EPA’s statements about CSAPR in the 

proposal were made in the context of 

CAIR’s imminent replacement by 

CSAPR. The Huntington-Ashland area 

has attained the 1997 annual PM2.5, and 

continues to attain the standard as 

shown in the monitoring data provided 

above. The state of Ohio has shown that 

the emission reductions that led to the 

monitored attainment were due to many 

permanent and enforceable measures, 

including federal mobile vehicle 

standards, CAIR and consent decrees. At 

proposal, EPA noted that CSAPR had 

been promulgated to replace CAIR but 

that redesignation of HuntingtonAshland was still appropriate, because 

reductions achieved by CSAPR in this 

area would be equivalent to or greater 

than those achieved by CAIR. Since the 

proposal, the D.C. Circuit has issued a 

decision to vacate CSAPR; thus in this 

action EPA is evaluating Ohio’s 

maintenance plan as submitted, 

including the emission reductions 

associated with CAIR. The redesignation 

of the Ohio portion of the HuntingtonAshland area meets the requirements 

under section 107(d)(3)(iii) without any 

reductions associated with CSAPR. 

Comment 1c: The Commenter states 

that it is arbitrary for EPA to use only 

one year in determining whether 

permanent and enforceable emission 

reductions led to air quality 

improvements, because cap-and-trade 

programs allow for varied emissions 

year to year. Moreover, the Commenter 

states that analyzing the year 2008 poses 

further problems, because it marked the 

beginning of a major economic 

downturn and EPA provided no 

analysis of whether the recession was a 

factor in the improvements in air 

quality. 

Response 1c: EPA’s conclusion here is 

fully supported by the facts and 

applicable legal criteria. EPA’s 

longstanding practice and policy 14

provides for states to demonstrate 

permanent and enforceable emissions 

reductions by comparing nonattainment 

area emissions occurring during the 

nonattainment period (represented by 

emissions during one of the years 

during the 3-year nonattainment period, 

in this case 2005) with emissions in the 

area during the attainment period 

(represented by emissions during one of 

the three attainment years, in this case 

2008, which is included in the 3-year 

period, 2007–2009, that the State used 

to show attainment with the 1997 

annual PM2.5 standard). A 

determination that an area has attained 

the 1997 annual PM2.5 standard is based 

on an objective review of air quality 

data in accordance with 40 CFR 50.13 

and Appendix N of part 50, based on 3 

complete, consecutive calendar years of 

quality-assured air quality monitoring 

data. In the State’s redesignation 

request, Ohio considered data for the 

2007–2009 time period to demonstrate 

attainment. In EPA’s determination of 

attainment and proposed approval of 

the redesignation request, EPA 

considered data for the 2008–2010 time 

period, which was the most recent 

quality-assured, certified data available. 

See 76 FR 55542 (September 7, 2011), 

76 FR 79593 (December 22, 2011). In 

this final rulemaking, EPA is also 

considering the area’s continued 

attainment based on complete, qualityassured certified data for 2009–2011. 

EPA has also considered preliminary 

data showing the area has continued to 

monitor attainment through 2012. 

Therefore, selecting 2008 as a 

representative attainment year, and 

comparing emissions for this year to 

those for a representative year during 

the nonattainment period, 2005, is an 

appropriate and long-established 

approach that demonstrates 

improvements in air quality as a result 

of the imposition of emission reductions 

in the area between the years of 

nonattainment and attainment. For 

example, see recent redesignations such 

as Indianapolis PM2.5 annual standard 

(76 FR 59512), Lake and Porter 8-hour 

ozone standard (75 FR 12090), and 

Northwest Indiana PM2.5 annual 

standard (76 FR 59600). 

EPA disagrees with the Commenter’s 

contention that using a single 

attainment year is arbitrary due to year 

to year variations in emission levels 

resulting from cap-and-trade programs, 

and that 2008 was a ‘‘problematic’’ year 

to select for analysis. As noted above, 

data for 2008–2010 and 2009–2011 as 

well as preliminary data for 2012 show 

continued attainment of the standard. 

Although the Commenter points out one 

monitor’s reading that approached the 

threshold in 2010, the fact remains that 

Huntington-Ashland is in attainment 

and has been in attainment. 

With respect to the Commenter’s 

assertion that EPA has conducted no 

analyses to prove that emission 

reductions between 2005 and 2008 led 

to reduced PM2.5 concentrations, as 

noted above, comparing emissions for a 

representative nonattainment year to 

emissions for a representative 

attainment year is consistent with 

longstanding practice and EPA policy 

for making such a demonstration. The 

CAA does not specifically require the 

use of modeling in making any such 

demonstration and it has not been the 

general practice to do so. While the 

Commenter expressed concerns that an 

economic downturn was responsible for 

the improvement in air quality, the 

Commenter has made no demonstration 

that the reduction in emissions and 

observed improvement in air quality is 

due to an economic recession, changes 

in meteorology, or temporary or 

voluntary emissions reductions. 

In contrast, in EPA’s proposed 

redesignation of the Kentucky portion of 

the Huntington-Ashland area 77 FR 

69409 (November 19,2012), EPA 

provided a technical analysis showing 

that emission reductions from EGUs in 

the Huntington-Ashland area exceed 

average emission reductions seen in 

EGUs subject to decreased electrical 

demand, i.e., the economic recession. A 

summary of the emission changes from 

2005 to 2011 for the entire HuntingtonAshland Area is provided in Table 2 

below. Table 3 summarizes EPA’s 

analysis showing reductions of SO2 and 

NOX emissions, in tons per year (tpy) 

across the Huntington-Ashland area for 

2005–2011 for all the coal-fired EGUs in 

the area. There were reductions in SO2

and NOX emissions for all facilities with 

two exceptions. At the General J.M. 

Gavin facility, the 2011 SO2 emission 

rate was nearly the same as the 2005 

rate, but production was higher in 2011 

than in 2005. Thus the slight increase in 

emissions was in no way related to the 

fact that CAIR is an emissions trading 

program. As stated earlier, limitations 

on emission rates do not ensure total 

mass emissions are limited. And at the 

Kyger Creek facility, the 2011 emission 

rate was slightly higher than the 2005 

rate; however, the slight increase was 

directly related to the facility’s strategy 

to reduce emissions. The facility 

installed a scrubber to control SO2 in 

2012. The company originally planned 

to install the controls by 2011 and 

therefore switched to higher sulfur coal 


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15Final 2012 emission reductions will not be 

known until early 2013 when fourth quarter 

emissions data is submitted by the facilities. 

16 Data reflects reported actual emissions from the 

Clean Air Markets Division Database at http:// 

ampd.epa.gov/ampd/. 

then. Now that the scrubber is installed, 

2012 emission reductions are on track to 

be as much as 65,000 tons lower than in 

2005 putting Ohio reductions for 2012 

around 169,000 tons,15 as compared to 

2005 emissions. Emission reductions 

have been greater than decreases in 

emissions that could be attributed to 

any decrease in electrical demand in the 

Huntington-Ashland Area. While the 

average SO2 and NOX emission 

reductions from coal fired power plants 

in the Huntington-Ashland Area for the 

period 2005–2011 were 31 percent and 

68 percent, respectively, the average 

facility power production in terms of 

heat input decreased by only about 5 

percent during the same period. EPA 

finds that Ohio’s 2008 inventory is a 

suitable representation of emissions 

during the period when the HuntingtonAshland area came to attain the 

standard. 

TABLE 2—ACTUAL EMISSION REDUCTIONS FROM COAL FIRED EGUS IN THE HUNTINGTON-ASHLAND AREA FOR THE

PERIOD 2005–201116

Facility—county 

Emissions differences from 2005 to 2011 (tpy) 

SO2 Percent 

reduction NOX Percent reduction 

KY: Big Sandy—Lawrence County .................................................................................. 7,958 16 5,862 47 

WV: 

Mountaineer—Mason County ................................................................................... 40,972 95 10,395 82 

Phil Sporn—Mason County ...................................................................................... 28,334 72 6,896 77

OH: 

JM Stuart—Adams County ....................................................................................... 97,784 92 16,662 68 

Killen Station—Adams County ................................................................................. 11,845 61 2,353 39 

Gen J M Gavin—Gallia County ................................................................................ ¥5,299 ¥19 31,720 82 

Kyger Creek—Gallia County .................................................................................... ¥70,497 ¥97 9,144 50 

TABLE 3—ACTUAL EMISSION REDUCTIONS FROM COAL FIRED EGUS IN THE HUNTINGTON-ASHLAND AREA FOR THE

PERIOD 2005–2011, BY STATE

[Emissions differences from 2005 to 2011 (tpy)] 

State SO2 Percent 

reduction NOX Percent reduction 

KY .................................................................................................................................... 7,958 16 5,862 47 

WV ................................................................................................................................... 69,306 84 17,291 80 

OH .................................................................................................................................... 33,833 15 59,878 68 

Total .......................................................................................................................... 111,097 31 83,030 68 

Comment 1d: The Commenter 

observes that Ohio cites the availability 

of cheap natural gas as one of the causes 

of attainment. The Commenter asserts 

that cheap natural gas is not a 

permanent and enforceable emissions 

limit, and states that because EPA has 

not determined whether the 

improvement in air quality was 

dependent on the presence of cheap 

natural gas, EPA must disapprove the 

redesignation request. 

Response 1d: In determining that the 

improvement in air quality was due to 

permanent and enforceable emissions 

reductions, EPA did not cite or rely 

upon cheap natural gas as a permanent 

and enforceable limit. In its proposed 

rulemaking, EPA identified multiple 

permanent and enforceable measures 

(76 FR 79593), including, but not 

limited to Tier 2 vehicle standards, 

heavy-duty gasoline and diesel highway 

vehicle standards, nonroad sparkignition engines and recreational 

engines standards, large nonroad diesel 

engine standards, consent decrees, 

CAIR, and the NOX SIP Call. Permanent 

and enforceable measures set an 

enforceable limit, and the emission 

standard that must be met is 

independent of the choice of fuel. 

Further, as mentioned above, the large 

coal-fired electric generating units 

continued to run at or near the same 

amount over the years evaluated. 

Comment 2a: The Commenter claims 

that ‘‘EPA has failed to conduct an 

adequate analysis under CAA section 

110(l) on what effect redesignation will 

have on the 2006 24-hour PM2.5

NAAQS, the 1-hour NOX NAAQS, the 1- 

hour SO2 NAAQS and the 1997 and 

2008 75 parts per billion ozone 

NAAQS.’’ In subsequent comments, the 

Commenter also states, ‘‘EPA has not 

conducted an adequate analysis of the 

effect redesignation will have on other 

National Ambient Air Quality 

Standards’’. 

Response 2a: Section 110(l) provides 

in part: ‘‘the Administrator shall not 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * *, or any other applicable 

requirement of this chapter.’’ As a 

general matter, EPA is obligated under 

section 110(l) to consider whether a 

revision would ‘‘interfere with’’ 

attainment or applicable requirements. 

For example, 70 FR 53, 57 (January 3, 

2005); 70 FR 17029, 17033 (April 4, 

2005); 70 FR 28429, 28431 (May 18, 

2005); and 70 FR 58119, 58134 (October 

5, 2005). In its review, EPA has indeed 

considered its obligations under section 

110(l). In acting on Ohio’s redesignation 

request and maintenance plan for the 

1997 annual PM2.5 NAAQS, Ohio did 

not revise or remove any existing 

emissions limit for any NAAQS, nor do 

they alter any existing control 

requirements. Thus, EPA concludes that 


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76890 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

17EPA notes that the Huntington-Ashland Area 

does not have violating monitors for the 2006 24- 

hour PM2.5 NAAQS, the 1-hour NOX NAAQS, or the 

1-hour SO2 NAAQS, the 1-hour and 8-hour ozone 

NAAQS, and that this Area has never been 

designated nonattainment for 2006 24-hour PM2.5

NAAQS, the 1-hour NOX NAAQS, or the 1-hour 

SO2 NAAQS. 

the redesignation will not interfere with 

attainment or maintenance of any other 

air quality standard. The Commenter 

provides no information in its comment 

to indicate that redesignation would 

have any impact on the area’s ability to 

comply with the 2006 24-hour PM2.5

NAAQS, the 1-hour NO2 NAAQS, the 1- 

hour SO2 NAAQS or the 1997 8-hour 

ozone NAAQS and 2008 75 parts per 

billion ozone NAAQS. The 

redesignation does not relax any 

existing rules or limits, nor will it 

adversely alter the status quo air 

quality.17 In fact, the maintenance plan 

submitted by Ohio demonstrates a 

decline in the direct PM2.5 and PM2.5

precursor emissions over the timeframe 

of the maintenance period. EPA 

therefore concludes that there is no 

basis for concluding that the 

redesignation might interfere with 

attainment of any standard or with 

satisfaction of any other requirement, 

and thus EPA finds that section 110(l) 

does not prohibit EPA from approving 

the redesignation request and the 

maintenance SIP revision. 

Comment 2b: The Commenter states 

that the Ohio SIP does not currently 

have RACT standards in place for PM2.5, 

and that implementation of such 

standards would have reduced NOX and 

SO2, and helped with the 2006 24-hour 

PM2.5 NAAQS, the 1-hour NOX NAAQS, 

the 1-hour SO2 NAAQS, and the 1997 

and 2008 ozone NAAQS as well as 

visibility. The Commenter contends that 

EPA should demonstrate that the 

absence of this alleged co-benefit will 

not interfere with attainment, 

reasonable further progress and any 

other applicable requirement.’’ 

Response 2b: EPA disagrees with the 

Commenter that the Ohio SIP does not 

comply with the applicable RACT 

requirements. EPA has previously set 

forth its interpretation of RACT for 

PM2.5 as linked to attainment needs of 

the area. If an area is attaining the PM2.5

standard, it clearly does not need 

further measures to reach attainment. 

Therefore, under EPA’s interpretation of 

the RACT requirement, as it applies to 

PM2.5, Ohio has satisfied the RACT 

requirement without need for further 

measures. EPA’s memorandum of May 

22, 2008, clarified and fully explained 

EPA’s view of the relationship between 

PM2.5 attainment and RACT 

requirements. Memorandum from 

William T. Harnett, Director, Air 

Quality Policy Division to Regional Air 

Division Directors, entitled, ‘‘PM2.5

Clean Data Policy Clarification.’’ 

This memorandum explained that 40 

CFR 51.1004(c) provides that a 

determination that an area has attained 

the PM2.5 standard suspends the 

requirements to submit RACT and 

Reasonably Achieved Control Measures 

(RACM) requirements. 

40 CFR 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 Reasonable Further Progress (RFP) 

requirements.’’ 

Thus the regulatory text itself defines 

RACT as included in RACM, and 

provides that it is required only insofar 

as it is necessary to advance attainment. 

See also section 51.1010(b). Thus, EPA 

is correct in its conclusion here that the 

RACT requirement has been satisfied, 

and it does not result in interference 

with attainment or with other applicable 

requirements. The mere fact that EPA 

has correctly determined that the area 

meets the RACT requirements for the 

1997 PM2.5 standard, and that thus no 

more is required under that standard, 

does not result in interference with 

attainment of other standards. 

The Commenter claims that Wall v. 

EPA, 265 F.3d 426, 442 (6th Cir. 2001), 

establishes that fully adopted RACT is 

nonetheless required. The Wall case, 

however, is not applicable to RACT 

requirements for the PM2.5 standard. 

The Wall decision addressed entirely 

different statutory provisions for ozone 

RACT under CAA part D subpart 2, 

which do not apply or pertain to the 

subpart 1 RACT requirements for PM2.5. 

Comment 2c: The Commenter 

contends that it is inappropriate for EPA 

to redesignate the area to attainment at 

this time, claiming that EPA is illegally 

delaying issuing a final rule to revise the 

annual PM2.5 NAAQS, and that EPA’s 

Clean Air Science Advisory Committee 

has recommended adoption of a lower 

NAAQS. The Commenter alleges that 

EPA is removing the protection of the 

1997 NAAQS, while not adopting a 

more protective standard. 

Response 2c: EPA finds that the 

concerns expressed by the Commenter 

are unfounded here. First, this 

redesignation does not remove the 

protection of the 1997 annual PM2.5

NAAQS; it does not relax control 

requirements or implementation for the 

1997 NAAQS. Nor does the 

redesignation in any way address or 

affect the area’s obligations under the 

new NAAQS. Its purpose and function 

is to focus solely on the 1997 annual 

PM2.5 NAAQS, and it has no impact on 

EPA’s position with respect to 

requirements for the area under a 

revised NAAQS. 

Also, on December 14, 2012, EPA 

finalized a rule revising the PM2.5

annual standard to 12 mg/m3 based on 

current scientific evidence regarding the 

protection of public health. EPA notes 

that the newly proposed standard is 

independent of this action, and the 

newly proposed standard does not affect 

the redesignation of the HuntingtonAshland area for the 1997 annual PM2.5

standard. 

Comment 3: The Commenter asserts 

that ‘‘Emissions calculations for on-road 

mobile sources fail to consider 15% 

ethanol in gasoline (E15).’’ 

Response 3: In 2010 and 2011, EPA 

granted partial waivers for use of E15 in 

model year (MY) 2001 and newer lightduty motor vehicles (75 FR 68094 and 

76 FR 4662). As discussed in the waiver 

decisions, there may be some small 

emission impacts from the use of E15. 

E15 is expected to cause a small 

immediate emissions increase in NOX

emissions. However, due to its lower 

volatility than the 10% ethanol gasoline 

currently in-use, its use is also expected 

to result in lower evaporative emissions. 

Other possible emissions impacts may 

be from the misfueling of E15 in 

vehicles or engines for which its use is 

not approved, i.e., MY2000 and older 

motor vehicles, heavy-duty engines and 

vehicles, motorcycles and all nonroad 

engines, vehicles and equipment. EPA 

has promulgated a separate rule dealing 

specifically with the mitigation of 

misfueling to reduce the potential 

emissions impacts from misfueling (76 

FR 44406). 

However, the E15 partial waivers do 

not require that E15 be made or sold and 

it is unclear if and to what extent E15 

may even be used in Ohio. Even if E15 

is introduced into commerce in Ohio, 

considering the likely small and 

offsetting direction of the emission 

impacts, the limited set of motor 

vehicles approved for its use, and the 

measures required to mitigate 

misfueling, EPA believes that any 

potential emission impacts of E15 will 

be less than the maintenance plan safety 

margin by which Ohio shows 

maintenance. 

Commment 4a: The Commenter 

asserts that the Ohio maintenance plan 

is deficient in part because the 

contingency measures it includes 

provide for their implementation within 

18 months of a monitored violation, if 


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18See examples in recent redesignations, e.g. 

Lake and Porter County portion of Chicago 1997 8- 

hour ozone nonattainment area 75 FR 12090 May 

11, 2010, and Lake and Porter County portion of 

Chicago 1997 PM2.5 annual standard 76 FR 59600, 

September 27, 2011. 

one occurs. The Commenter claims that 

as a consequence, the ‘‘contingency 

measures do not provide for prompt 

correction of violations.’’ 

Response 4a: The Commenter 

overlooks the provisions of the CAA 

applicable to contingency measures. 

Section 175A(d) provides that ‘‘[e]ach 

plan revision submitted under this 

section shall contain such contingency 

provisions as the Administrator deems 

necessary to assure that the state will 

promptly correct any violation of the 

standard which occurs after the 

redesignation of the area as an 

attainment area.’’ (emphasis added). 

Thus Congress gave EPA discretion to 

evaluate and determine the contingency 

measures EPA ‘‘deems necessary’’ to 

assure that the state will promptly 

correct any subsequent violation. EPA 

has long exercised this discretion in its 

rulemakings on section 175A 

contingency measures in redesignation 

maintenance plans, allowing as 

contingency measures commitments to 

adopt and implement in lieu of fully 

adopted contingency measures, and 

finding that implementation within 18 

months of a violation complies with the 

requirements of section 175A.18 See 

recent redesignations, e.g. Lake and 

Porter 8-hour ozone standard (75 FR 

12090), and Northwest Indiana PM2.5

annual standard (76 FR 59600). Section 

175A does not establish any deadlines 

for implementation of contingency 

measures after redesignation to 

attainment. It also provides far more 

latitude than does section 172(c)(9), 

which applies to a different set of 

contingency measures applicable to 

nonattainment areas. Section 172(c)(9) 

contingency measures must ‘‘take effect 

* * * without further action by the 

state or [EPA].’’ By contrast, section 

175A confers upon EPA the discretion 

to determine what constitutes adequate 

assurance, and thus permits EPA to take 

into account the need of a state to 

assess, adopt implement contingency 

measures if and when a violation occurs 

after an area’s redesignation to 

attainment. Therefore, in accordance 

with the discretion accorded it by 

statute, EPA may allow reasonable time 

for states to analyze data and address 

the causes and appropriate means of 

remedying a violation. In assessing what 

‘‘promptly’’ means in this context, EPA 

also may take into account time for 

adopting and implementation of the 

appropriate measure. In the case of the 

Huntington-Ashland area, EPA 

reasonably concluded that 18 months 

constitutes a timeline consistent with 

prompt correction of a potential 

monitored violation. This timeframe 

also conforms with EPA’s many prior 

rulemakings on acceptable schedules for 

implementing section 175A contingency 

measures. 

Comment 4b: The Commenter asserts 

the maintenance plan does not 

demonstrate maintenance because EPA 

cannot rely on CSAPR to ensure 

maintenance in the Huntington-Ashland 

area. 

Response 4b: EPA disagrees with the 

Commenter’s assertion that the 

Huntington-Ashland area relies on 

CSAPR for maintenance. Ohio has used 

future emission reduction projects to 

meet the maintenance plan requirement 

under section 175A of the CAA, and has 

submitted a maintenance plan that 

extends 10 years past the redesignation. 

The Commenter improperly interprets 

EPA’s references to CSAPR reductions 

in the proposal redesignation notice 

(found in Tables 5 and 6). EPA referred 

to CSAPR because Ohio had 

incorporated CAIR reductions in the 

emissions inventory, and that EPA 

believed at the time of proposal that 

CSAPR (which at the time had not yet 

been stayed) would allow for greater 

emission reductions both regionally and 

from local implementation than CAIR 

had provided. EPA therefore concluded 

in the proposal that the emission 

projections cited in Ohio’s submittal 

were conservative, and still well below 

attainment year emissions. Since the 

proposal, CSAPR has been stayed; 

however, the emission reductions 

projected by Ohio, which were based on 

continued implementation of CAIR, in 

Ohio’s maintenance plan are still valid 

and are significantly less than 

attainment year emissions. Ohio has met 

the requirements of 175A, without 

CSAPR in place. 

EPA also has modeling, included in 

the docket for this rulemaking, which 

projects that the Huntington-Ashland 

area will maintain the 1997 annual 

PM2.5 NAAQS without CSAPR or CAIR. 

See appendix B to the Air Quality 

Modeling Final Rule Technical Support 

Document for CSAPR. The modeling 

analysis was a rigorous analysis using 

CAMx, a photochemical grid model 

which models PM2.5 concentrations 

arising both from direct PM2.5

emissions, as well as from formation 

from precursors (NOX and SO2) on a 

regional scale level. Extensive quality 

assurance and control measures, such as 

model calibration and sensitivity were 

taken into account. An in-depth 

discussion of the modeling is found in 

the docket. The analysis projected 

concentrations at current monitor 

locations for the Huntington-Ashland 

area using emissions inventories 

without CAIR and CSAPR for 2012 and 

2014. Modeled results projected 

maximum concentrations of PM2.5 at 

13.92 mg/m3 (Lawrence County), and 

13.26 mg/m3 (Scioto County) for 2012. 

Those sites have current design values 

2–3 m/m3 lower than the conservative 

modeled results. For the year 2014, EPA 

modeled maximum concentrations at 

these two sites as 13.32 and 12.71 mg/ 

m3, respectively, without CAIR or 

CSAPR emission reductions. 

Further, Ohio’s maintenance plan 

provides for verification of continued 

attainment by performing future reviews 

of triennial emissions inventories. It 

also includes contingency measures to 

ensure that the NAAQS is maintained 

into the future if monitored increases in 

ambient PM2.5 concentrations occur (76 

FR 79593, December 22, 2012). For 

these reasons, EPA finds that Ohio has 

submitted a maintenance plan that 

meets the requirements of 

107(d)(3)(E)(iv) and 175A. 

Comment 5: The Commenter argues 

that due to certain start-up, shutdown 

and malfunction (SSM) provisions 

contained in the Ohio SIP, emission 

reductions in Ohio cannot be due to 

‘‘permanent and enforceable reductions 

in emissions resulting from 

implementation of applicable 

implementation plan and Federal air 

pollutant control regulations and other 

permanent and enforceable reductions;’’ 

and the state cannot have met ‘‘all 

requirements applicable to the area 

under section 7410 of this title and part 

D of this subchapter,’’ citing 42 U.S.C. 

7407(d)(3)(E). The Commenter points 

out that excess emissions from sources 

during SSM events may be subject to 

automatic or discretionary ‘exemption’ 

under the Ohio SIP as currently 

constituted. The Commenter urges that 

Ohio’s SSM regulations should be 

revised to ‘‘clearly comply’’ with the 

CAA and with EPA guidance (providing 

citations) such that all excess emissions 

are violations of the CAA, and to 

preserve the authority of EPA and 

citizens to enforce the SIP standards and 

limitations. The Commenter argues that 

these existing provisions in the Ohio 

SIP preclude redesignation of this area 

to attainment for the 1997 PM2.5

standards. 

Response 5: EPA does not agree that 

the SSM provisions in the Ohio SIP 

provide a basis for disapproving the 

redesignation request for this area at this 

time. The provisions that the 

Commenter objects to are approved 

provisions of the Ohio SIP. As such, the 


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19The Commenter also cites the EPA action on a 

Utah SIP at 75 FR 70888, 70892 (Nov. 19, 2010) as 

a redesignation that was disapproved due to SSM 

provisions. However, this action was not a 

redesignation disapproval. That rulemaking was in 

fact a ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision’’, otherwise known 

as a ‘‘SIP Call,’’ and not a redesignation. 

emission limits that contain the SSM 

provisions objected to by the 

Commenter are ‘‘permanent and 

enforceable’’ SIP provisions. The 

Commenter expresses concerns about 

certain exemptions for excess emissions 

within those existing provisions, but 

that does not affect whether the 

provisions are permanent and 

enforceable for purposes of 

redesignations. Similarly, the 

Commenter expresses concern that these 

existing provisions are not consistent 

with other requirements of the CAA, but 

as of this time those provisions are part 

of the approved Ohio SIP. EPA is in the 

process of addressing SSM provisions in 

the Ohio SIP through an on-going 

nationwide process, and in the event 

that EPA determines the provisions to 

be problematic, EPA can address them 

in that more appropriate context. 

The CAA sets forth the general criteria 

for redesignation of an area from 

nonattainment to attainment in section 

107(d)(3)(E). These criteria include that 

the Administrator has fully approved 

the implementation plan for area for 

applicable requirements, 42 U.S.C. 

7407(d)(3)(E)(ii)and (v). EPA must also 

determine that the improvement in air 

quality is due to reductions that are 

‘‘permanent and enforceable’’ (iii), and 

that the area has an approved 

maintenance plan under section 175A. 

EPA has fully addressed all these 

criteria in its proposed and final 

rulemakings on the redesignation of the 

Ohio portion of the Huntington-Ashland 

Area. The SSM-related SIP provisions 

identified in the Commenter’s letter are 

already approved, portions of the Ohio 

SIP, and EPA is not required to reevaluate or revise them as part of this 

redesignation. EPA’s review here is 

limited to whether the already approved 

SSM provisions impact any 

redesignation requirement in section 

107(d)(3)(E), so as to preclude EPA from 

approving the redesignation request. 

There is no basis for EPA to conclude 

that these provisions have such effect. 

First, it has long been established that 

in approving a redesignation request 

EPA may rely on prior SIP approvals 

plus any additional measures it may 

approve in conjunction with a 

redesignation action. See John Calcagni 

Memorandum (September 4, 1992 at 3); 

Southwestern Pennsylvania Growth 

Alliance v. Browner, 144 F.3d 984, 989– 

990 (6th Cir. 1998); Wall v. EPA, 265 

F.3d 426 (6th Cir. 2001); 68 FR 25413, 

25426 (May 12, 2003). 

While the Commenter takes the 

position that specific SSM provisions in 

the Ohio rules result in a ‘‘regulatory 

structure that is inconsistent with the 

fundamental requirement that all excess 

emissions be considered violations,’’ the 

Commenter does not link this concern 

with any specific deficiencies in Ohio’s 

redesignation submittal for the 

Huntington-Ashland Area.19

The Commenter expressed concerns 

that some specific existing SIP 

provisions contain exemptions for 

excess emissions such that the emission 

limits are not ‘‘permanent and 

enforceable’’ for purposes of section 

107(d)(3)(E)(iii). EPA disagrees with this 

conclusion because the provisions are 

contained within the existing approved 

SIP and thus, in the context of 107(d)(3), 

are both ‘‘permanent and enforceable’’. 

The Commenter may take issue with 

some features of those provisions, 

which contain automatic and 

discretionary exemptions for excess 

emissions, but these provisions, in the 

form in which they exist, are currently 

approved in the SIP and thus 

considered ‘‘permanent and 

enforceable’’. 

EPA is in the process of evaluating 

SSM provisions in a separate context. 

While EPA understands that the 

Commenter wishes to raise concerns 

that about Ohio’s existing SIP 

provisions with SSM exemptions, in the 

context of a redesignation action, EPA is 

not required to re-evaluate the validity 

of previously approved SIP provisions. 

In the context of a redesignation action, 

that generally a state has met the 

requirements of section 107(d)(3)(E)(ii) 

and (v), because the provisions have 

been previously approved into the SIP 

by EPA. If these provisions are later or 

separately determined to be deficient, 

such as compliance with other relevant 

requirements of the CAA, then EPA will 

be able to evaluate those concerns in the 

appropriate context. EPA notes that, in 

another, separate proceeding, EPA is in 

the process of evaluating similar 

comments relating to other SSM 

provisions. 

On June 30, 2011, Sierra Club filed a 

‘‘Petition to Find Inadequate and 

Correct Several State Implementation 

Plans under section 110 of the Clean Air 

Act Due to Startup, Shutdown, 

Malfunction, and/or Maintenance 

Provisions’’. As part of settlement of a 

lawsuit, EPA has agreed to take action 

in response to this petition. See Sierra 

Club et al. v. Jackson, No. 3:10–cv– 

04060–CRB (N.D. Cal). The comments 

regarding Ohio SSM provisions 

submitted in this redesignation action 

raise similar concerns to those 

identified by the petitioner in the Ohiospecific portion of the above-referenced 

petition. EPA is currently reviewing 

these Ohio SSM provisions as part of 

EPA’s evaluation of the petition, and of 

other SSM provisions across the nation. 

Thus, EPA will be addressing those 

concerns in that separate action. EPA’s 

redesignation of the Ohio portion 

Huntington-Ashland area to attainment 

for 1997 annual PM2.5 does not affect or 

preclude EPA from taking appropriate 

action on the from requiring the State of 

Ohio and other states to address excess 

emissions during SSM events correctly 

for purposes of CAA requirements in 

both nonattainment and attainment 

areas. 

At this time, with regard to the 

redesignation of the Ohio portion of the 

Huntington-Ashland area, Ohio has a 

fully approved SIP. The provisions to 

which the Commenter objects are 

permanent and enforceable, as those 

terms are meant in section 107(d)(3). In 

addition, the area has attained the 

annual PM2.5 standard since 2009, and 

has demonstrated that it can maintain 

the standard for at least ten years. EPA 

notes, moreover, that it is approving 

contingency measures under section 

175A(d), as part of the area’s 

maintenance plan. These measures 

provide assurance that the area can 

promptly correct a violation that might 

occur after redesignation. Finally, if, in 

the future, EPA concludes the 

provisions identified by the Commenter 

are problematic, EPA will be able to 

address that concern in a separate 

action. 

Comment 6a: The Commenter 

contends that the Ohio SIP lacks 

required SIP provisions, asserting that 

section 172(c) of the CAA requires SIPs 

to include a RFP plan, a PM2.5

attainment demonstration, contingency 

measures, nonattainment New Source 

Review (NSR) rules, and RACM/RACT 

rules and that EPA has not approved 

these items into the Ohio SIP. 

Response 6a: For a number of reasons, 

EPA disagrees with the Commenter’s 

contentions that approvals of the cited 

measures is required for purposes of 

redesignation. First, pursuant to 40 CFR 

51.1004(c), EPA’s final determination 

that the Huntington-Ashland area has 

attained the PM2.5 standard suspended 

Ohio’s obligation to submit attainmentrelated planning requirements that 

would otherwise apply, including an 

attainment demonstration, RFP, RACM/ 

RACT, and contingency measures under 

section 172(c). The substance and legal 

basis of 40 CFR 51.1004(c), which 


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20See also Sierra Club v. EPA, 99 F. 3d 1551 (10th 

Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th 

Cir. 2004); and Our Children’s Earth Foundation v. 

EPA, No. 04–73032 (9th Cir. June 28, 2005) 

(memorandum opinion). 

embodies EPA’s interpretation under its 

‘‘Clean Data Policy,’’ has been upheld 

by the D.C. Circuit Court. NRDC v. EPA, 

571 F.3d 1245 (D.C. Cir. 2009).20

Moreover, prior to the promulgation 

of 40 CFR 51.1004(c) the General 

Preamble for Implementation of Title I 

(57 FR 13498, April 16, 1992) addressed 

the role of attainment-related planning 

requirements in the specific context of 

EPA’s consideration of a redesignation 

request. The General Preamble sets forth 

EPA’s view of applicable requirements 

for purposes of evaluating redesignation 

requests when an area is attaining a 

standard (General Preamble for 

Implementation of Title I (57 FR 13498, 

April 16, 1992)). 

In the context of redesignations, EPA 

has interpreted requirements related to 

attainment as not applicable for 

purposes of redesignation. 

The General Preamble explains that, 

in the context of a redesignation to 

attainment, when EPA determines that 

attainment has been reached, no 

additional measures are needed to 

provide for attainment. Thus section 

172(c)(1) requirements for an attainment 

demonstration and RACM are no longer 

considered to be applicable for purposes 

of redesignation as long as the area 

continues to attain the standard until 

redesignation. The RFP requirement 

under section 172(c)(2) and contingency 

measures requirement under section 

172(c)(9) are similarly not relevant for 

purposes of redesignation. The General 

Preamble stated: 

[t]he section 172(c)(9) requirements are 

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply when an area has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans * * * provides specific requirements 

for contingency measures that effectively 

supersede the requirements of section 

172(c)(9) for these areas. ‘‘General Preamble 

for the Interpretation of Title I of the Clean 

Air Act Amendments of 1990,’’ (General 

Preamble) 57 FR 13498, 13564 (April 16, 

1992). 

See also Calcagni memorandum at 6 

(‘‘The requirements for reasonable 

further progress and other measures 

needed for attainment will not apply for 

redesignations because they only have 

meaning for areas not attaining the 

standard.’’). With respect to 

nonattainment NSR requirements, see 

EPA’s response to Comment 6c, below. 

Comment 6b: The Commenter 

contends that the Ohio SIP lacks 

approved contingency measures. The 

Commenter asserts that contingency 

measures must be in place so that, if an 

area monitor shows a violation of the 

NAAQS in the future, that violation of 

the NAAQS is quickly addressed, 

minimizing the number of people that 

will be harmed by air quality levels 

above the NAAQS. 

Response 6b: As explained in the 

response to the previous comment (6a), 

the nonattainment area contingency 

measure requirements of section 

172(c)(9) are directed at ensuring RFP 

and attainment by the applicable date. 

These nonattainment area requirements 

no longer apply after an area has 

attained the standard and after the area 

has been redesignated to attainment. 

Under section 175A of the CAA, a 

maintenance plan must contain 

contingency provisions, ‘‘as deemed 

necessary by the Administrator,’’ and it 

is these contingency measures that 

apply to the area after redesignation to 

attainment. Ohio has included such 

provisions in its maintenance plan, 

which EPA is approving in this action. 

Ohio has committed to remedy a 

future violation that may occur after 

redesignation, and has included 

measures to address potential violations 

from a range of sources, as well as a 

timeline for promptly completing 

adoption and implementation. The state 

has identified measures that are 

sufficiently specific but which allow for 

latitude in potential scope. EPA believes 

that the contingency measures set forth 

in the submittal, combined with the 

state’s commitment to an expeditious 

timeline and process for 

implementation, provide assurance that 

the State will promptly correct a future 

potential violation. The contingency 

measures, as part of the maintenance 

plan, are codified into the state’s SIP at 

the time the area is redesignated to 

attainment effective upon publication. 

Comment 6c: The Commenter asserts 

that the Ohio SIP lacks a PM2.5

nonattainment NSR program. The 

Commenter also contends that the 

prevention of significant deterioration 

(PSD) program that is part of the SIP 

that an area being redesignated needs to 

ensure that the area will stay in 

attainment. The Commenter takes the 

position that EPA cannot approve the 

redesignation request because Ohio does 

not have an adequate PM2.5 PSD 

program. The Commenter bases his 

conclusion that Ohio’s PSD program is 

inadequate for PM2.5 on the contention 

that the programs do not contain 

significant emission rates for PM2.5 and 

its precursors, and that the programs do 

not include PM2.5 increments. 

Response 6c: Ohio has an approved 

nonattainment NSR program in its SIP. 

EPA approved Ohio’s current NSR 

program on January 10, 2003 (68 FR 

1366). Nonetheless, for purposes of 

evaluating a request for redesignation to 

attainment, because PSD requirements 

will apply after redesignation, EPA’s 

longstanding view is that the area need 

not have a fully-approved 

nonattainment NSR program, provided 

that the area demonstrates maintenance 

of the NAAQS without part D NSR. A 

detailed rationale for this view is 

described in a memorandum from Mary 

Nichols, Assistant Administrator for Air 

and Radiation, dated October 14, 1994, 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ The 

memo states, ‘‘nonattainment areas may 

be redesignated to attainment 

notwithstanding the lack of a fullyapproved part D NSR program, provided 

the program is not relied upon for 

maintenance.’’ In this case, Ohio has not 

relied upon NSR to maintain the 

standard. 

Congress used the undefined term 

‘‘measure’’ differently in various 

provisions of the CAA, which indicates 

that the term is susceptible to more than 

one interpretation and that EPA has the 

discretion to interpret it in a reasonable 

manner in the context of section 175A. 

See Greenbaum v. United States EPA, 

370 F. 3d 527, 535–38 (6th Cir. 2004). 

(court ‘‘find[s] persuasive the EPA’s 

argument that the very nature of the 

NSR permit program supports its 

interpretation that it is not intended to 

be a contingency measure pursuant to 

section 175A(d).’’) It is reasonable to 

interpret ‘‘measure’’ to exclude part D 

NSR in this context because PSD, a 

program that is the corollary of part D 

NSR for attainment areas, goes into 

effect in lieu of part D NSR upon 

redesignation. PSD requires that new 

sources demonstrate that emissions 

from their construction and operation 

will not cause or contribute to a 

violation of any NAAQS or PSD 

increment. The state has demonstrated 

that the area will be able to maintain the 

standard without part D NSR in effect, 

and the state’s PSD program will 

become effective in the area upon 

redesignation to attainment. See the 

rationale set forth at length in the 

Nichols Memorandum. For other 

explanations of why full approval and 

retention of NSR is not required in 

redesignation actions, see the following 

redesignation rulemakings: 60 FR 

12459, 12467–12468 (March 7, 

1995)(Redesignation of Detroit, MI); 61 

FR 20458, 20469–20470 (May 7, 


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1996)(Cleveland-Akron-Lorrain, OH); 66 

FR 53665, 53669 (October 23, 2001) 

(Louisville, KY); 61 FR 31831, 31836– 

31837 (June 21, 1996) (Grand Rapids, 

MI). Contrary to the Commenter’s 

assertion, the Greenbaum court declined 

to reach the issue of whether full 

approval of a part D NSR program is 

required prior to redesignation. See 

Greenbaum, 370 F. 3d at 534–35. 

Ohio also has an EPA approved PSD 

program that includes PM2.5 as a NSR 

pollutant. While the Commenter is 

correct in stating that both Ohio 

approved PSD SIPs do not include 

specific significant emissions rates for 

PM2.5 or its precursors, the Ohio SIP 

does include a provision that sets ‘‘any 

emission rate’’ as the significant 

emission rate for any regulated NSR 

pollutant that does not have a specific 

significant emission rate listed in the 

state rule. 

Therefore, any increase in direct PM2.5

emissions or emissions of its precursors 

(SO2 and NOX) will trigger the 

requirements to obtain a PSD permit; to 

perform an air quality analysis that 

demonstrates that the proposed source 

or modification will not cause or 

contribute to a violation of the PM2.5

NAAQS; and to apply best available 

control technology for direct PM2.5 and/ 

or the pertinent precursor. 

In addition, the fact that Ohio’s 

approved PSD SIPs lack PM2.5

increments does not prevent the 

program from addressing and helping to 

assure maintenance of the PM2.5

standard in accordance with CAA 

section 175A. A PSD increment is the 

maximum increase in concentration that 

is allowed to occur above a baseline 

concentration for a pollutant. Even in 

the absence of an approved PSD 

increment, the approved PSD program 

prohibits air quality from deteriorating 

beyond the concentration allowed by 

the applicable NAAQS. Thus Ohio’s 

approved PSD program is adequate for 

purposes of assuring maintenance of the 

1997 annual PM2.5 standard as required 

by section 175A. 

Comment 6d: The Commenter 

contends that the Ohio SIP does not 

have approved RACT rules. 

Response 6d: This comment has been 

addressed above, in response 2b. 

Comment 6e: The Commenter claims 

that 42 U.S.C. 7502(c)(7) requires that 

the nonattainment SIP meet all the 

requirements of 42 U.S.C. 7410(a)(2). 

EPA interprets this to mean only the 

Infrastructure elements that are linked 

to the nonattainment area. EPA’s 

position contradicts the plain language 

of the statute. The Commenter also 

states that EPA says that it disapproved 

the Section 110(a)(2)(D)(i) portion of the 

Ohio Infrastructure submittal but did 

not take action on the rest of the 

September 4, 2009, submittal. 76 FR 

79595. However, EPA did not explain 

what is included in the September 4, 

2009, submittal and did not provide the 

September 4, 2009, submittal in the 

docket. 

Response 6e: For a number of reasons, 

the concerns expressed by the 

Commenter are unfounded. First, EPA 

has issued final approvals of Ohio’s 

infrastructure SIP for 1997 ozone and 

PM standards for all portions of 110(a) 

2 requirements (76 FR 23757, April 28, 

2011). EPA also acted on Ohio’s 

submittal of the 2006 PM infrastructure 

SIP (proposed 76 FR 6376, February 4, 

2011, finalized 76 FR 43175, July 20, 

2011) where EPA disapproved the 

state’s use of CAIR to fulfill the 

requirements of 110(a)2(D). EPA notes 

that there was an editorial error in the 

Federal Register citation (but not the 

date of publication) of the 2006 

infrastructure disapproval in the 

proposed redesignation; however, this 

has been fixed in the reference above, 

and a full submittal can be found in that 

docket. Even with this disapproval on 

February 4, 2011, the approval of the 

1997 PM infrastructure elements on 

April 28, 2011, fulfills the ‘‘fully 

approved’’ SIP elements associated with 

redesignation, with exceptions 

unrelated to the requirements for 

redesignation. 

The requirements applicable for 

purposes of redesignation are those 

which at a minimum are linked to the 

attainment status of the area being 

redesignated. As noted in the proposal 

(76 FR 23757, April 28, 2011), all areas, 

regardless of their designation as 

attainment or nonattainment, are subject 

to section 110(a)(2)(D). The applicability 

of this provision is not connected with 

nonattainment plan submissions or with 

the attainment status of an area. A 

nonattainment area remains subject to 

the requirements of section 110(a)(2)(D) 

after it has been redesignated to 

attainment. Therefore EPA has long 

interpreted the 110(a)(2)(D) 

requirements as a not applicable 

requirement for purposes of 

redesignation. EPA has leeway to 

determine what constitutes an 

‘‘applicable’’ requirement under section 

107(d)(3)(E), and EPA’s interpretation is 

entitled to deference. Sierra Club v. 

EPA, 375 F.3d 537 (7th Cir. 2004). EPA 

has consistently interpreted only those 

section 110 requirements that are linked 

with a particular area’s designation as 

the requirements to be considered in 

evaluating a redesignation request. See, 

e.g., EPA’s position on the applicability 

of conformity, oxygenated fuels 

requirements for purposes of 

redesignations. See Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174–53176, 

October 10, 1996, and 62 FR 24826, May 

7, 1997); Cleveland-Akron-Lorain, Ohio, 

final rulemaking (61 FR 20458, May 7, 

1996); and Tampa, Florida, final 

rulemaking (60 FR 62748, December 7, 

1995). See also the discussion on this 

issue in the Cincinnati, Ohio 1-hour 

ozone redesignation (65 FR 37890, June 

19, 2000), and in the Pittsburgh, 

Pennsylvania 1-hour ozone 

redesignation (66 FR 50399, October 19, 

2001). 

Comment 7: The Commenter contends 

that Ohio must restore an ambient air 

monitor to Lawrence County, in order to 

meet the monitoring network 

requirements. 

Response 7: EPA disagrees with the 

Commenter that the monitoring network 

must restore a monitor in Lawrence 

County. Currently, Ohio operates a 

monitor in Lawrence County, the 

Ironton Department of Transportation 

(DOT) site monitor, and the monitoring 

network for the area has met and 

continues to meet monitoring network 

requirements. The Ironton DOT site 

address for the monitor in Lawrence 

County was moved to a location within 

1.5 miles of the former site location 

(Lawrence County Hospital). The 

Lawrence County Hospital site was 

demolished on February 12, 2008, and 

a new site in the Lawrence County, 

Ohio portion of the Huntington-Ashland 

area, known as the Ironton DOT site, 

began operation on the same day. To 

date the Ironton DOT site has collected 

a complete design value for the 

monitoring period 2009–2011, which 

shows that the area continues to attain 

the 1997 annual standard. A full 

discussion of this aspect of the 

monitoring history is contained in the 

proposed determination of attainment 

for the Huntington-Ashland area (76 FR 

27290, May 11, 2011). 

Comment 8: The Commenter asserts 

that the 2005 emissions inventory that 

EPA is proposing to approve as meeting 

the emission inventory requirement of 

section 172(c)(3) of the CAA is 

inadequate and EPA cannot approve 

this emissions inventory. The 

Commenter notes that the emissions 

inventory is 6 years old. In addition, the 

commenter contends that portions of the 

emissions inventory were estimated, as 

opposed to being actual emissions, and 

claims that EPA has included in the 

docket only a summary of the emissions 

inventory. The Commenter asserts that 

EPA must place in the docket a 

comprehensive emissions inventory, 

including information for each point 


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source, so as to allow the public to 

review the inventory and comment on 

it. 

Response 8: Ohio developed a 2005 

comprehensive inventory to meet the 

requirement of section 172(c)(3) of the 

CAA in accordance with EPA’s 

November 18, 2002, policy 

memorandum from Lydia N. Wegman 

entitled ‘‘2002 Base Year Emission 

Inventory SIP Planning: 8-hr Ozone, 

PM2.5 and Regional Haze Programs,’’. 

The Commenter observes that 

portions of the emissions inventory 

were estimated. This method is entirely 

consistent with accepted EPA 

procedures for emissions inventory 

development procedures. It is common 

practice, and consistent with EPA 

emissions inventory guidance, for states 

to estimate emissions for any given year 

using related activity factors or to 

project emissions based on information 

from prior years and associated activity 

growth factors. See ‘‘Emissions 

Inventory Guidance for Implementation 

of Ozone and Particulate Matter 

National Ambient Air Quality Standards 

(NAAQS) and Regional Haze 

Regulations,’’ dated August 2005. For 

mobile sources, it is standard and 

accepted practice for states to estimate 

emissions using an EPA- approved 

emissions model coupled with the 

output of a transportation model, which 

provides traffic levels by roadway and 

activity type. The Commenter provided 

no information or specific details that 

show that the 2005 inventory was 

inaccurate. 

While we believe the 2005 inventory 

submitted by the state meets the 

inventory requirements section 172(c)(3) 

of the CAA, EPA notes that Ohio also 

submitted a comprehensive 2008 

emissions inventory to serve as the 

attainment year inventory as part of the 

maintenance plan. EPA’s longstanding 

view, as set forth in the September 4, 

1992, Calcagni memorandum is that the 

‘‘requirements for an emission inventory 

[under section 172(c)] will be satisfied 

by the inventory requirements of the 

maintenance plan.’’ See Calcagni 

memorandum at 6. 

When preparing the comprehensive 

2008 emissions inventory, Ohio 

compiled point source information from 

the 2008 annual emissions reports 

submitted to Ohio EPA by sources and 

EPA’s Clean Air Markets Division 

database for electric utilities. Area 

source emissions were calculated using 

the most recently available 

methodologies and emissions factors 

from EPA along with activity data 

(population, employment, fuel use, etc.) 

specific to 2008. Nonroad mobile source 

emissions were calculated using EPA’s 

NONROAD emissions model. In 

addition, emissions estimates were 

calculated for commercial marine 

vessels, aircraft, and railroads, three 

non-road categories not included in the 

NONROAD model. On-road mobile 

source emissions were calculated using 

EPA’s MOVES emissions model with 

2008 Vehicle Miles Traveled data 

provided by the Tri-state planning 

agency KYOVA. 

Therefore, the state has satisfied the 

CAA inventory requirements by its 

submittal of two inventories that meet 

the applicable emissions inventory 

requirement. 

The docket associated with the 

proposal contained Ohio’s submittal 

including appendix B, which contains 

the state’s method and analysis of 

sources for the 2005 inventory year. The 

Clean Air Fine Particle Implementation 

Rule (72 FR 20586) states that the 3-year 

emissions inventory that fulfills the SIP 

requirement under 172(c)(3) must 

provide documentation on the 

development of the SIP inventory 

(appendix B of the proposal docket). 

The rule also states that all source types 

must be reported, but does not specify 

the resolution of the data reporting as a 

source by source report. Ohio has 

interpreted the source type reporting 

requirement as reported by county, 

which they have provided in their 

submittal. EPA also believes that its 

summary provided in the notice of 

proposed rulemaking, along with 

appendix B description of development, 

provides an adequate basis for the 

public to identify pertinent issues and 

evaluate EPA’s analysis and conclusions 

regarding satisfaction of section 

172(c)(3). Much of the information in 

Ohio’s inventory also was used in EPA’s 

National Emissions Inventory, which 

can be examined in considerable detail 

at http://www.epa.gov/ttn/chief/net/ 

2008inventory.html. EPA acknowledges 

that an in-depth inventory was 

unintentionally omitted from the 

electronic docket at 

www.regulations.gov. However, the 

document was available to the public in 

hard copy at the EPA Region 5 office, 

and had the Commenter contacted the 

Region, the inventory could have been 

provided. The facility-specific inventory 

has since been added to the electronic 

docket. 

IV. Why is EPA taking these actions? 

EPA has determined that the 

Huntington-Ashland area has continued 

to attain the 1997 annual PM2.5 NAAQS. 

EPA has also determined that all other 

criteria have been met for the 

redesignation of the Ohio portion of the 

Huntington-Ashland area from 

nonattainment to attainment of the 1997 

annual PM2.5 NAAQS and for approval 

of Ohio’s maintenance plan for the area. 

See CAA sections 107(d)(3)(E) and 

175A. The detailed rationale for EPA’s 

findings and actions is set forth in the 

proposed rulemaking of December 22, 

2011 (76 FR 79593) and in this final 

rulemaking. 

V. Final Action 

EPA has previously made the 

determination that the HuntingtonAshland area has attained the 1997 

annual PM2.5 standard (76 FR 55541). 

EPA is determining that the area 

continues to attain the standard and that 

the Ohio portion of the area meets the 

requirements for redesignation to 

attainment of that standard under 

sections 107(d)(3)(E) and 175A of the 

CAA. Thus, EPA is granting the request 

from Ohio to change the legal 

designation of its portion of the 

Huntington-Ashland area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. EPA is also 

approving Ohio’s 1997 annual PM2.5

maintenance plan for the HuntingtonAshland area as a revision to the SIP 

because the plan meets the requirements 

of section 175A of the CAA. EPA is 

approving the 2005 and 2008 emissions 

inventories for primary PM2.5, NOX, and 

SO2, documented in Ohio’s May 4, 

2011, submittals as satisfying the 

requirement in section 172(c)(3) of the 

CAA for a comprehensive, current 

emission inventory. Finally, for 

transportation conformity purposes, 

EPA is approving Ohio’s determination 

that on-road emissions of PM2.5 and 

NOX are insignificant contributors to 

PM2.5 concentrations in the area. 

In accordance with 5 U.S.C. 553(d), 

EPA finds there is good cause for this 

action to become effective immediately 

upon publication. This is because a 

delayed effective date is unnecessary 

due to the nature of a redesignation to 

attainment, which relieves the area from 

certain CAA requirements that would 

otherwise apply to it. The immediate 

effective date for this action is 

authorized under both 5 U.S.C. 

553(d)(1), which provides that 

rulemaking actions may become 

effective less than 30 days after 

publication if the rule—grants or 

recognizes an exemption or relieves a 

restriction, and section 553(d)(3), which 

allows an effective date less than 30 

days after publication—as otherwise 

provided by the agency for good cause 

found and published with the rule. The 

purpose of the 30-day waiting period 

prescribed in section 553(d) is to give 

affected parties a reasonable time to 

adjust their behavior and prepare before 


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76896 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

the final rule takes effect. Today’s rule, 

however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule relieves the Ohio of 

various requirements for the Ohio 

portion of the Huntington-Ashland area. 

For these reasons, EPA finds good cause 

under 5 U.S. C. 553(d)(3) for this action 

to become effective on the date of 

publication of this action. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of the 

maintenance plan under CAA section 

107(d)(3)(E) are actions that affect the 

status of geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

required by state law. A redesignation to 

attainment does not in and of itself 

impose any new requirements, but 

rather results in the application of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

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 these 

reasons, these actions: 

• Are not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Are not 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 final 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). 

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 March 1, 2013. 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 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks. 

Dated: December 18, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR parts 52 and 81 are 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. 

■ 2. Section 52.1880 is amended by 

adding paragraphs (p)(2) and (q)(2) to 

read as follows: 

§ 52.1880 Control strategy: Particulate 

matter. 

* * * * * 

(p) * * * 

(2) The Ohio portion of the 

Huntington-Ashland nonattainment area 

(Lawrence and Scioto Counties and 

portions of Adams and Gallia Counties). 

The maintenance plan establishes a 

determination of insignificance for both 

NOX and primary PM2.5 for conformity 

purposes. 

(q) * * * 

(2) Ohio’s 2005 and 2008 NOX, 

directly emitted PM2.5, and SO2

emissions inventory satisfies the 

emission inventory requirements of 

section 172(c)(3) for the HuntingtonAshland area. 

* * * * * 

PART 81—[AMENDED] 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. Section 81.336 is amended by 

removing the entry for HuntingtonAshland, WV-KY-OH and adding in its 

place an entry for Huntington-Ashland, 

OH in the table entitled ‘‘Ohio PM2.5

(Annual NAAQS)’’ to read as follows: 

§ 81.336 Ohio. 

* * * * * 


ebenthall on DSK5TPTVN1PROD with 
Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 76897 

OHIO PM2.5 (ANNUAL NAAQS) 

Designated area 

Designation a

Date 1 Type 

*******

Huntington-Ashland, OH.

Adams County (part).

Monroe Township.

Sprigg Township.

Gallia County (part).

Addison Township.

Cheshire Township.

Lawrence County.

Scioto County ................................................................................................................................................... 12/31/12 Attainment. 

*******

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is 90 days after January 5, 2005, unless otherwise noted. 

* * * * * 

[FR Doc. 2012–31276 Filed 12–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 9 and 721 

[EPA–HQ–OPPT–2011–0941; FRL–9369–8] 

RIN 2070–AB27 

Significant New Use Rule on Certain 

Chemical Substances; Removal of 

Significant New Use Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is removing significant 

new use rules (SNURs) promulgated 

under the Toxic Substances Control Act 

(TSCA) for four chemical substances 

which were the subject of 

premanufacture notices (PMNs). EPA 

published these SNURs using direct 

final rulemaking procedures. EPA 

received notice of intent to submit 

adverse comments on these rules. 

Therefore, the Agency is removing these 

SNURs, as required under the expedited 

SNUR rulemaking process. EPA intends 

to publish in the near future proposed 

SNURs for these four chemical 

substances under separate notice and 

comment procedures. 

DATES: This final rule is effective 

December 31, 2012. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Kenneth 

Moss, Chemical Control Division 

(7405M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460–0001; telephone 

number: (202) 564–9232; email address: 

Moss.Kenneth@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave. Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCAHotline@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Does this action apply to me? 

A list of potentially affected entities is 

provided in the Federal Register of 

September 21, 2012 (77 FR 58666) 

(FRL–9357–2). If you have questions 

regarding the applicability of this action 

to a particular entity, consult the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

II. What rules are being removed? 

In the Federal Register of September 

21, 2012 (77 FR 58666), EPA issued 

several direct final SNURs, including 

SNURs for the chemical substances that 

are the subject of this removal. These 

direct final rules were issued pursuant 

to the procedures in 40 CFR part 721, 

subpart D. In accordance with 

§ 721.160(c)(3)(ii), EPA is removing 

these rules issued for four chemical 

substances which were the subject of 

PMNs P–07–204, P–10–58, P–10–59, 

and P–10–60, because the Agency 

received notice of intent to submit 

adverse comments without sufficient 

time to respond prior to the effective 

date of the rules. EPA intends to publish 

proposed SNURs for these chemical 

substances under separate notice and 

comment procedures. 

For further information regarding 

EPA’s expedited process for issuing 

SNURs, interested parties are directed to 

40 CFR part 721, subpart D, and the 

Federal Register of July 27, 1989 (54 FR 

31314). The record for the direct final 

SNURs for the chemical substances that 

are being removed was established at 

EPA–HQ–OPPT–2011–0941. That 

record includes information considered 

by the Agency in developing this rule 

and the notice of intent to submit 

adverse comments. 

III. How do I access the docket? 

To access the electronic docket, 

please go to http://www.regulations.gov 

and follow the online instructions to 

access docket ID number EPA–HQ– 

OPPT–2011–0941. Additional 

information about the Docket Facility is 

provided under ADDRESSES in the 

Federal Register of September 21, 2012 

(77 FR 58666). If you have questions, 

consult the technical person listed 

under FOR FURTHER INFORMATION

CONTACT. 

IV. Statutory and Executive Order 

Reviews 

This final rule removes existing 

regulatory requirement and does not 

contain any new or amended 

requirements. As such, the Agency has 

determined that this removal will not 

have any adverse impacts, economic or 

otherwise. The statutory and executive 

order review requirements applicable to 

the direct final rule were discussed in 

the Federal Register of September 21, 

2012 (77 FR 58666). Those review 

requirements do not apply to this action 

because it is a removal and does not 

contain any new or amended 

requirements. 

V. Congressional Review Act (CRA) 

The Congressional Review Act, 5 

U.S.C. 801 et seq., 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 


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