Federal Register / Vol. 76, No. 241 / Thursday, December 15, 2011 / Rules and Regulations 77903 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that Order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. This rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

rule is categorically excluded, under 

figure 2–1, paragraph (34)(g), of the 

Instruction. This rule establishes a 

temporary safety zone. 

An environmental analysis checklist 

and a categorical exclusion 

determination are required for this rule, 

and will be provided as indicated in the 

ADDRESSES Section. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR Part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. A new temporary § 165.T08–1087 is 

added to read as follows: 

§ 165.T08–1087 Safety Zone; Upper 

Mississippi River, Mile 389.4 to 403.1. 

(a) Location. The following area is a 

safety zone: All waters of the Upper 

Mississippi River, Mile 389.4 to 403.1, 

extending the entire width of the 

waterway and located on the Iowa and 

Illinois border. 

(b) Effective date. This rule is effective 

from 7 a.m. on November 22, 2011 

through 7 p.m. CST on December 21, 

2011. 

(c) Periods of Enforcement. This rule 

will be enforced during bridge span 

operations scheduled for 7 a.m. through 

12:00 noon CST on November 22, 2011. 

Additional bridge span operations occur 

within the period from November 22, 

2011 through December 21, 2011. The 

Captain of the Port Upper Mississippi 

River will inform the public of the 

enforcement periods, planned dates of 

bridge span operations and any safety 

zone changes through broadcast notice 

to mariners. 

(d) Regulations. (1) In accordance 

with the general regulations in § 165.23 

of this part, entry into this zone is 

prohibited unless authorized by the 

Captain of the Port Upper Mississippi 

River or a designated representative. 

(2) Persons or vessels requiring entry 

into or passage through the zone must 

request permission from the Captain of 

the Port Upper Mississippi River or a 

designated representative. The Captain 

of the Port Upper Mississippi River 

representative may be contacted at (314) 

269–2332. 

(3) All persons and vessels shall 

comply with the instructions of the 

Captain of the Port Upper Mississippi 

River or their designated representative. 

Designated Captain of the Port 

representatives include United States 

Coast Guard commissioned, warrant, 

and petty officers. 

Dated: November 22, 2011. 

B.L. Black, 

Captain, U.S. Coast Guard, Captain of the 

Port Upper Mississippi River. 

[FR Doc. 2011–32137 Filed 12–14–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R04–OAR–2010–0937–201164; FRL– 

9506–3] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Kentucky; Redesignation of 

the Kentucky Portion of the CincinnatiHamilton, OH-KY-IN 1997 Annual Fine 

Particulate Matter Nonattainment Area 

to Attainment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a request submitted on January 

27, 2011, from the Commonwealth of 

Kentucky, through the Kentucky Energy 

and Environment Cabinet, Division for 

Air Quality (DAQ), to redesignate the 

Kentucky portion of the CincinnatiHamilton, Ohio-Kentucky-Indiana 

(hereafter referred to as the ‘‘Tri-state 

Cincinnati-Hamilton Area’’) fine 

particulate matter (PM2.5) nonattainment 

area to attainment for the 1997 Annual 

PM2.5 National Ambient Air Quality 

Standards (NAAQS). The Tri-state 

Cincinnati-Hamilton Area is comprised 

of Boone, Campbell, and Kenton 

Counties in Kentucky (hereafter referred 

to as the ‘‘Northern Kentucky Area’’ or 

‘‘Area’’); Butler, Clermont, Hamilton, 

and Warren Counties in Ohio; and a 

portion of Dearborn County in Indiana. 

EPA’s approval of the redesignation 

request is based on the determination 

that Kentucky has met the criteria for 

redesignation to attainment set forth in 

the Clean Air Act (CAA or Act). 

Additionally, EPA is approving a 

revision to the Kentucky State 

Implementation Plan (SIP) to include 

the 1997 Annual PM2.5 maintenance 

plan for the Northern Kentucky Area 

that contains the new 2015 and 2021 

motor vehicle emission budgets 

(MVEBs) for nitrogen oxides (NOX) and 

PM2.5 for that Area. On December 9, 

2010, and January 25, 2011, 

respectively, Ohio and Indiana 

submitted requests to redesignate their 

portion of the Tri-state CincinnatiHamilton Area to attainment for the 

1997 PM2.5 NAAQS. EPA is taking 


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77904 Federal Register / Vol. 76, No. 241 / Thursday, December 15, 2011 / Rules and Regulations 

1On September 29, 2011, at 76 FR 60373, EPA 

determined that the Tri-state Cincinnati-Hamilton 

Area attained the 1997 PM2.5 NAAQS by its 

applicable attainment date of April 5, 2010, and 

that the Area was continuing to attain the PM2.5

standard with monitoring data that was currently 

available. 

action on the requests from Ohio and 

Indiana in an action separate from this 

final action. This action also approves 

the emissions inventory submitted with 

the maintenance plan. Additionally, 

EPA is responding to comments 

received on EPA’s October 21, 2011, 

proposed rulemaking. 

DATES: Effective Date: This rule will be 

effective December 15, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0937. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Madolyn Dominy or Joel Huey, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Madolyn 

Dominy may be reached by phone at 

(404) 562–9644 or via electronic mail at 

dominy.madolyn@epa.gov. Joel Huey 

may be reached by phone at (404) 562– 

9104 or via electronic mail at 

huey.joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for the actions? 

II. What are the actions EPA is taking? 

III. What is EPA’s response to comments? 

IV. Why is EPA taking these actions? 

V. What are the effects of these actions? 

VI. Final Action 

VII. Statutory and Executive Order Reviews 

I. What is the background for the 

actions? 

On January 27, 2011, Kentucky, 

through DAQ, submitted a request to 

redesignate the Northern Kentucky Area 

to attainment for the 1997 Annual PM2.5

NAAQS and for EPA approval of the 

Kentucky SIP revision containing a 

maintenance plan for the Area. In an 

action published on October 21, 2011 

(76 FR 65458), EPA proposed approval 

of Kentucky’s plan for maintaining the 

1997 Annual PM2.5 NAAQS, including 

the emissions inventory submitted 

pursuant to CAA section 172(c)(3); and 

the NOX and PM2.5 MVEBs for the 

Northern Kentucky Area as contained in 

the maintenance plan. At that time, EPA 

also proposed to approve the 

redesignation of the Northern Kentucky 

Area to attainment.1 Additional 

background for today’s action is set 

forth in EPA’s October 21, 2011, 

proposal. 

The MVEBs, specified in tons per year 

(tpy), included in the maintenance plan 

are as follows: 

TABLE 1—NORTHERN KENTUCKY AREA MVEBS

[tpy] 

PM2.5 NOX

2015 Mobile Emissions ............................................................................................................................................ 371.11 6,996.22 

2015 Safety Margin Allocation ............................................................................................................................. 18.56 1,049.43 

2015 Total Mobile Budget ................................................................................................................................ 389.67 8,045.65 

2021 Mobile Emissions ............................................................................................................................................ 275.38 6,421.15 

2021 Safety Margin Allocation ............................................................................................................................. 27.54 963.17 

2021 Total Mobile Budget ................................................................................................................................ 302.92 7,384.32 

In its October 21, 2011, proposed 

action, EPA noted that the adequacy 

public comment period on these MVEBs 

(as contained in Kentucky’s submittal) 

began on February 14, 2011, and closed 

on March 16, 2011. No comments were 

received during the public comment 

period. In today’s action, EPA is 

concluding the adequacy process by 

finding the new MVEBs for the Northern 

Kentucky Area adequate for the 

purposes of transportation conformity. 

As stated in the October 21, 2011, 

proposal, this redesignation addresses 

the Northern Kentucky Area’s status 

solely with respect to the 1997 Annual 

PM2.5 NAAQS, for which designations 

were finalized on January 5, 2005 (70 FR 

944), and as supplemented on April 14, 

2005 (70 FR 19844). 

EPA reviewed PM2.5 monitoring data 

from ambient PM2.5 monitoring stations 

in the Cincinnati-Hamilton Area from 

2007–2010. These data have been 

quality-assured and are recorded in Air 

Quality System (AQS). The annual 

arithmetic mean PM2.5 concentrations 

for 2007–2010 and the 3-year averages 

of these values (i.e., design values) for 

2007–2009 and 2008–2010 are 

summarized in Table 2. The design 

values demonstrate that the Northern 

Kentucky Area (as part of the 

Cincinnati-Hamilton Area) continues to 

meet the PM2.5 NAAQS and that the 

ambient concentrations of PM2.5 are 

continuing to decrease in the Area. EPA 

has also reviewed preliminary 

monitoring data for 2011, which 

indicate that the Cincinnati-Hamilton 

Area continues to attain the 1997 PM2.5

NAAQS. These preliminary data are 

available in the Docket for today’s 

action although it is not yet certified. 


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2EPA notes that the Cincinnati/Northern 

Kentucky 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, 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. 

TABLE 2—DESIGN VALUE CONCENTRATIONS FOR THE TRI-STATE CINCINNATI-HAMILTON AREA FOR THE 1997 ANNUAL

PM2.5 NAAQS (μg/m3) 

Location County Monitor ID 

Annual mean concentrations 3-Year design 

values 

2007 2008 2009 2010 2007– 

2009 

2008– 

2010 

John Hill ...................................... Campbell, KY ............................. 21–037–3002 14.36 11.83 11.34 11.8 12.3 11.6 

Dixie ............................................ Kenton, KY ................................. 21–117–0007 14.20 11.99 11.04 * 12.1 12.4 11.5 

Bonita & St John ......................... Butler, OH ................................... 39–017–0003 15.40 13.80 12.83 13.6 13.9 13.4 

Nilles ........................................... Butler, OH ................................... 39–017–0016 14.94 13.75 13.08 13.5 13.8 13.4 

Hook Field ................................... Butler, OH ................................... 39–017–1004 14.62 n/a n/a n/a 14.6 n/a 

Clermont Center .......................... Clermont, OH ............................. 39–025–0022 14.01 11.75 11.01 12.0 12.2 11.6 

Grooms ....................................... Hamilton, OH .............................. 39–061–0006 14.63 12.48 12.11 * 12.7 13.1 12.4 

Seymour & Vine .......................... Hamilton, OH .............................. 39–061–0014 16.59 15.06 13.38 14.8 15.0 14.4 

WM. Howard Taft ........................ Hamilton, OH .............................. 39–061–0040 15.09 12.62 12.73 13.3 13.4 12.9 

W. 8th .......................................... Hamilton, OH .............................. 36–061–0042 15.90 14.40 13.71 14.5 14.6 14.2 

E. Kemper ................................... Hamilton, OH .............................. 36–061–0043 14.85 13.32 n/a n/a 14.1 n/a 

Sherman ...................................... Hamilton, OH .............................. 39–061–7001 15.09 13.74 12.97 14.1 14.0 13.6 

Murray ......................................... Hamilton, OH .............................. 39–016–8001 16.07 14.40 13.40 * 17.6 14.6 n/a 

Southeast .................................... Warren, OH ................................ 39–165–0007 13.98 11.92 11.70 11.9 12.4 11.8 

* Design value does not meet data completeness requirements due to closure or start-up of the monitoring stations. 

II. What are the actions EPA is taking? 

In today’s rulemaking, EPA is 

approving: (1) Kentucky’s emissions 

inventory, which was submitted 

pursuant to CAA section 172(c)(3); 

(2) Kentucky’s 1997 Annual PM2.5

maintenance plan (such approval being 

one of the CAA criteria for redesignation 

to attainment status) for the Northern 

Kentucky Area, including MVEBs; and, 

(3) Kentucky’s redesignation request to 

change the legal designation of Boone, 

Campbell and Kenton Counties in their 

entireties from nonattainment to 

attainment for the 1997 Annual PM2.5

NAAQS. The maintenance plan is 

designed to demonstrate that the 

Northern Kentucky Area will continue 

to attain the 1997 Annual PM2.5 NAAQS 

through 2021. EPA’s approval of the 

redesignation request is based on EPA’s 

determination that the Northern 

Kentucky Area meets the criteria for 

redesignation set forth in CAA, sections 

107(d)(3)(E) and 175A, including EPA’s 

determination that the Northern 

Kentucky Area has attained the 1997 

Annual PM2.5 NAAQS. EPA’s analyses 

of Kentucky’s redesignation request, 

emissions inventory, and maintenance 

plan are described in detail in the 

October 21, 2011, proposed rule (76 FR 

65458). 

Consistent with the CAA, the 

maintenance plan that EPA is approving 

also includes 2015 and 2021 MVEBs for 

NOX and PM2.5 for the Northern 

Kentucky Area. In this action, EPA is 

approving these NOX and PM2.5 MVEBs 

for the purposes of transportation 

conformity. For required regional 

emissions analysis years involving 2015 

and prior to 2021, the applicable 

budgets will be the new 2015 MVEBs. 

For required regional emissions analysis 

years that involve 2021 or beyond, the 

applicable budgets will be the new 2021 

MVEBs. 

III. What is EPA’s response to 

comments? 

EPA received one set of comments on 

the October 21, 2011, proposed actions 

associated with the redesignation of the 

Northern Kentucky Area for the 1997 

Annual PM2.5 NAAQS. A summary of 

the comments and EPA’s responses are 

provided below. 

Comment 1: The Commenter states 

‘‘EPA has failed to conduct an adequate 

analysis under Clean Air Act 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 [sulfur dioxide] NAAQS and 

the 2008 75 parts per billion ozone 

NAAQS.’’ 

Response 1: Section 110(l) provides in 

part: ‘‘[t]he 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.’’ EPA 

disagrees with the Commenter’s 

assertion that EPA did not consider 

110(l) in terms of the October 21, 2011, 

proposed action. As a general matter, 

EPA must and does consider section 

110(l) requirements with action on each 

SIP revision, although EPA does not 

interpret section 110(l) as requiring a 

full attainment demonstration for every 

SIP revision. See, e.g., 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). However, the 

redesignation does not relax any 

existing control requirements, nor does 

it alter any existing control 

requirements. On that basis, EPA 

concludes that this redesignation will 

not interfere with attainment or 

maintenance of any of these air quality 

standards. The Commenter does not 

provide any information in its comment 

to indicate that approval of Kentucky’s 

redesignation would have any impact 

on the Area’s ability to comply with on 

the 2006 24-hour PM2.5 NAAQS, the 1- 

hour NOX NAAQS, the 1-hour SO2

NAAQS or the 2008 75 parts per billion 

ozone NAAQS. Kentucky’s January 27, 

2011, redesignation request and 

maintenance plan for the 1997 annual 

PM2.5 NAAQS does not revise or remove 

any existing emissions limit for any 

NAAQS, or any other existing 

substantive SIP provisions. In fact, the 

maintenance plan provided with the 

Commonwealth’s submission 

demonstrates a decline in the direct 

PM2.5 and PM2.5 precursor (e.g., NOX

and SO2) emissions over the timeframe 

of the initial maintenance period.2 For 

these reasons, EPA disagrees that the 

Commenter has identified a rationale on 

which EPA could disapprove of the SIP 

revision at issue. 

Comment 2: The Commenter states 

that ‘‘EPA has not established that any 

of the emission reductions did not come 

from the NOX SIP Call, CAIR [Clean Air 

Interstate Rule] and CSAPR [Cross State 

Air Pollution Rule]. Emission 


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reductions pursuant to these programs 

are not permanent and enforceable 

because these programs are cap and 

trade programs. Any source which 

reduced its actual emissions pursuant to 

one of these trading programs could at 

any time in the future choose to increase 

their emissions by purchasing emission 

credits.’’ The Commenter further opines 

that ‘‘[t]his problem is worsened by 

EPA’s recent proposal to all[ow] 

increased trading under CSAPR until 

2014.’’ 

Response 2: Contrary to the 

Commenter’s statement, EPA did 

establish in the proposal notice that at 

least part of the emission reductions 

that helped the area achieve attainment 

came from programs other than the NOX

SIP Call, CAIR and CSAPR. The notice 

lists several permanent and enforceable 

reductions in emissions resulting from 

implementation of the Kentucky SIP, 

applicable Federal air pollution control 

regulations, and other reductions that 

are not ‘‘cap and trade’’ programs. Those 

programs include Tier 2 vehicle 

standards, heavy-duty gasoline and 

diesel highway vehicle standards, 

nonroad spark-ignition engines and 

recreational engines standards, large 

nonroad diesel engine standards, open 

burning bans, and fugitive emissions 

standards. See 76 FR 65465. 

Further, EPA disagrees with the 

Commenter’s conclusion that emission 

reductions associated with trading 

programs such as the NOX SIP Call, 

CAIR, and CSAPR are not permanent 

and enforceable simply because the 

underlying program is an emissions 

trading program. The Commenter 

appears to be arguing that these 

reductions cannot be considered 

permanent and enforceable within the 

meaning of section 107(d)(3)(E)(iii) of 

the CAA. Section 107(d)(3)(E)(iii) 

requires that, in order to redesignate an 

area to attainment, the Administrator 

must determine that ‘‘the improvement 

in air quality is due to permanent and 

enforceable reductions in emissions 

resulting from implementation of the 

applicable SIP and applicable federal air 

pollutant control regulations and other 

permanent and enforceable reductions.’’ 

EPA disagrees with the Commenter’s 

conclusion that reductions from trading 

programs cannot be considered 

permanent and enforceable because 

these programs allow individual sources 

to choose between purchasing emission 

credits and reducing emissions. 

The final CSAPR allows sources to 

trade allowances with other sources in 

the same or different states while firmly 

constraining any emissions shifting that 

may occur by requiring a strict emission 

ceiling in each state (the budget plus 

variability limit). As explained in EPA’s 

proposed redesignation notice for the 

Northern Kentucky Area, the emission 

reduction requirements of CAIR are 

enforceable through the 2011 control 

period, and because CSAPR has now 

been promulgated to address the 

requirements previously addressed by 

CAIR and gets similar or greater 

reductions in the relevant areas in 2012 

and beyond, EPA considers the 

emission reductions that led to 

attainment in the Northern Kentucky 

Area to be permanent and enforceable. 

The emission ceilings within each state 

are a permanent requirement of the 

CSAPR and are made enforceable 

through the associated Federal 

Implementation Plans. 

EPA responded to a similar comment 

in its ‘‘Approval and Promulgation of 

Air Quality Implementation Plans; 

Redesignation of the Evansville area to 

attainment of the Fine Particulate Matter 

Standard.’’ 76 FR 59527, 59529, 

September 27, 2011. In that notice, EPA 

discusses several factors which support 

EPA’s determination that the SO2

reductions in the Evansville area are 

permanent and enforceable and which 

also apply to the Northern Kentucky 

Area. First, given the mandates under 

CSAPR, any utility that has already 

spent the hundreds of millions of 

dollars to install scrubbers will find 

continued effective operation of those 

controls to be far more cost-effective 

than disregarding this investment and 

either expending similar capital 

installing replacement scrubbers 

elsewhere or purchasing credits at a 

price equivalent to that capital already 

spent. In short, any utility in a state 

covered by CSAPR provisions related to 

PM2.5 that has installed scrubbers is 

almost certain under CSAPR to retain 

the scrubbers and operate them 

effectively. Second, any action by a 

utility that increases its emissions, 

requiring the purchase of allowances, 

necessitates a corresponding reduction 

by the utility that sells the allowances. 

Given the regional nature of particulate 

matter, this corresponding emission 

reduction will have an air quality 

benefit that will compensate at least in 

part for the impact of any emission 

increase from utility companies outside 

Kentucky but near the Kentucky area. 

Third, in response to the opinion of the 

Court of Appeals for the District of 

Columbia Circuit, CSAPR includes 

assurance provisions to ensure that the 

necessary emission reductions occur 

within each covered state. 

The recent proposed rule revision 

referenced by the Commenter would 

amend the CSAPR assurance penalty 

provisions for all states within the 

program so they start in 2014 instead of 

2012. 76 FR 63860 (October 14, 2011). 

As explained in the proposal, which 

was subject to public review and 

comment, this revision would promote 

the development of allowance market 

liquidity, thereby smoothing the 

transition from the CAIR programs to 

the CSAPR programs in 2012. As further 

explained in the proposal, the proposed 

revisions: 

Would not affect, in any way, the 

requirements of the rule in 2014 and beyond. 

EPA is proposing only a short postponement 

of the assurance penalty provisions to ensure 

a smooth transition from CAIR to the 

Transport Rule programs. EPA believes that, 

notwithstanding postponement of the 

assurance penalty provisions, the states 

covered by the Transport Rule programs will 

still achieve the emission reductions in 2012 

and 2013 necessary to eliminate each state’s 

significant contribution to nonattainment and 

interference with maintenance identified in 

the final Transport Rule (with the revisions 

included in this proposal). The highly 

detailed state-specific bases on which 

individual state budgets were determined 

using the approach and methodologies 

developed in the final Transport Rule, and 

included in the record for the Transport Rule, 

together with the derivation of the variability 

limits from historic data reflecting state-level 

year-to-year variation in power sector 

emissions, support EPA’s belief. See 76 FR at 

63871. 

Further, Kentucky’s maintenance plan 

provides for verification of continued 

attainment by performing future reviews 

of triennial emissions inventories and 

also for contingency measures to ensure 

that the NAAQS is maintained into the 

future if monitored increases in ambient 

PM2.5 concentrations occur. See 76 FR 

65469. For this and the above reasons, 

EPA disagrees that the Commenter has 

identified a basis on which EPA should 

disapprove this SIP revision. 

Comment 3: The Commenter states 

that Kentucky does not have fully 

approved adequate SIPs due to what the 

Commenter characterizes as an 

‘‘exemption’’ for excess emissions due 

to malfunction and shutdown in the 

discretion of the director. The 

Commenter cites to a number of 

different provisions to support the 

conclusion that Kentucky’s regulations 

should be revised to ‘‘clearly comply’’ 

with the CAA and EPA guidance 

(citations also provided) such that all 

excess emissions are violations and to 

preserve the authority of EPA and 

citizens to enforce the SIP standards and 

limitations. 

Response 3: The CAA sets forth the 

general criteria for redesignation of an 

area from nonattainment to attainment 

in Section 107(d)(3)(E). Specifically, 

that section identifies five main criteria 


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3Although EPA interprets the SIP as indicated by 

the Commonwealth in its letter, EPA recognizes that 

the citations identified by the commenter may not 

be as clear as would be ideal. EPA encourages the 

Commonwealth to clarify the language in any future 

revisions to these provisions of the SIP. 

including that ‘‘the Administrator has 

fully approved the applicable 

implementation plan for the area under 

section 7410(k) of this title.’’ 42 U.S.C. 

7407(d)(3)(E)(ii). Although the 

Commenter does not specifically cite to 

section 107(d)(3)(E)(ii), the language 

used in the comment (‘‘fully approved 

adequate SIP’’) appears to derive from 

this section of the CAA (and the 

Commenter does later cite to 

107(d)(3)(E) in the concluding 

paragraph of the comment letter. As a 

preliminary matter, the issue before EPA 

in the current rulemaking action is a 

redesignation for the Kentucky portion 

of the Tri-state Cincinnati-Hamilton 

Area to attainment for the 1997 PM2.5

standard, including the maintenance 

plan. The SIP provisions identified in 

the Commenter’s letter are not currently 

being proposed for revision as part of 

the redesignation submittal. Thus, 

EPA’s review here is limited to whether 

the already approved provisions affect 

any of the requirements for 

redesignation in a manner that would 

preclude EPA from approving the 

redesignation request. Because the rules 

cited by the Commenter are not pending 

before EPA and/or are not the subject of 

this rulemaking action, EPA did not 

undertake a full SIP review of the 

individual provisions. It has long been 

established that EPA may rely on prior 

SIP approvals in approving a 

redesignation request plus any 

additional measures it may approve in 

conjunction with a redesignation action. 

See e.g., page 3 of the September 4, 

1992, John Calcagni Memorandum; 

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). 

Additionally, in the comment the 

word ‘‘adequate’’ was inserted into the 

statement ‘‘fully approved SIP’’ (which 

is the language of Section 

107(d)(3)(E)(ii)) such that the 

Commenter stated that Kentucky must 

have a ‘‘fully approved adequate SIP.’’ 

The word ‘‘adequate’’ is not included in 

Section 107(d)(3)(E)(ii), and its 

inclusion alters the plain text of the 

CAA for that particular provision. 

Furthermore, while the Commenter 

opines that the eight cited-to provisions 

of the Kentucky 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 deficiencies in 

Kentucky’s redesignation submittal for 

the Northern Kentucky Area. There is 

no information provided indicating that 

Kentucky has excused violations and 

that such actions result in Kentucky 

failing to meet a requirement for 

redesignation. Furthermore, there is no 

information provided indicating that 

even if Kentucky were to excuse such 

violations that the violations would not 

be actionable by EPA or citizens. 

To the contrary, on November 4, 2011, 

Kentucky’s Energy and Environment 

Cabinet, Department for Environmental 

Protection, Division for Air Quality, 

explained in a letter to EPA Region 4 

that ‘‘The Division would like to make 

clear that no provision in 401 KAR 

50:055 prohibits the Director from 

taking enforcement action for excess 

emissions resulting from startup, 

shutdown, and malfunction events.’’ 

The letter further states that ‘‘EPA’s 

enforcement authorities are established 

pursuant to Section 113 of the CAA, and 

a determination by the Director does not 

limit EPA’s authority to take 

enforcement action. Similarly, Section 

304 of the CAA provides enforcement 

authority requirements to citizens and is 

not limited by the Director’s 

determination.’’ EPA understands that 

the Commenter has other concerns; 

however, with regard to this issue on 

enforcement authorities, Kentucky’s 

November 4, 2011, correspondence 

addresses the Commenter’s apparent 

misconception.3

Notably, 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. EPA has agreed to respond 

to this petition by August 31, 2012, as 

part of settlement of a lawsuit. See 

Sierra Club et al. v. Jackson, No. 3:10– 

cv–04060–CRB (N.D. Cal). The 

comments regarding start up, shut down 

and malfunctions submitted on this 

redesignation action are identical to the 

Kentucky-specific portion of the abovereferenced Petition (at pages 39–40). 

EPA intends to review those provisions 

consistent with its review of the 

Petition. At this time, with regard to the 

redesignation of the Kentucky portion of 

the Tri-state Cincinnati-Hamilton Area, 

Kentucky has a fully approved SIP 

consistent with applicable requirements 

and EPA does not agree that the 

Commenter has raised a basis on which 

EPA could disapprove of the 

redesignation request at issue. 

IV. Why is EPA taking these actions? 

EPA has determined that the Northern 

Kentucky Area (as part of the Tri-state 

Cincinnati-Hamilton Area) has attained 

the 1997 Annual PM2.5 NAAQS and has 

also determined that all other criteria for 

the redesignation of the Northern 

Kentucky Area from nonattainment to 

attainment of the 1997 Annual PM2.5

NAAQS have been met. See CAA 

section 107(d)(3)(E). One of those 

requirements is that the Northern 

Kentucky Area has an approved plan 

demonstrating maintenance of the 1997 

Annual PM2.5 NAAQS. EPA is also 

taking final action to approve the 

maintenance plan for the Northern 

Kentucky Area as meeting the 

requirements of sections 175A and 

107(d)(3)(E) of the CAA. In addition, 

EPA is approving the emissions 

inventory as meeting the requirements 

of section 172(c)(3) of the CAA. Finally, 

EPA is approving the new NOX and 

PM2.5 MVEBs for the years 2015 and 

2021 as contained in Kentucky’s 

maintenance plan for the Northern 

Kentucky Area because these MVEBs 

are consistent with maintenance of the 

1997 Annual PM2.5 standard in the Area. 

The detailed rationale for EPA’s 

findings and actions are set forth in the 

proposed rulemaking and in other 

discussion in this final rulemaking. 

V. What are the effects of these actions? 

Approval of the redesignation request 

changes the legal designation of Boone, 

Campbell and Kenton Counties in their 

entireties from nonattainment to 

attainment for the 1997 Annual PM2.5

NAAQS. EPA is modifying the 

regulatory table in 40 CFR 81.318 to 

reflect a designation of attainment for 

these counties. EPA is also approving, 

as a revision to the Kentucky SIP, the 

Commonwealth’s plan for maintaining 

the 1997 Annual PM2.5 NAAQS in the 

Northern Kentucky Area through 2021. 

The maintenance plan includes 

contingency measures to remedy 

possible future violations of the 1997 

Annual PM2.5 NAAQS, and establishes 

NOX and PM2.5 MVEBs for the years 

2015 and 2021 for the Northern 

Kentucky Area. Additionally, this action 

approves the emissions inventory for 

the Northern Kentucky Area pursuant to 

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

VI. Final Action 

EPA is taking final action to approve 

the redesignation and change the legal 

designation of Boone, Campbell, and 

Kenton Counties in their entireties from 

nonattainment to attainment for the 

1997 Annual PM2.5 NAAQS. Through 

this action, EPA is also approving into 


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77908 Federal Register / Vol. 76, No. 241 / Thursday, December 15, 2011 / Rules and Regulations 

the Kentucky SIP the 1997Annual PM2.5

maintenance plan for the Northern 

Kentucky Area, which includes for this 

Area the new MVEBs of 8,045.65 tpy of 

NOX and 389.67 tpy of PM2.5 for 2015 

and 7,384.32 tpy of NOX and 302.92 tpy 

of PM2.5 for 2021. 

Additionally, EPA is approving the 

2008 emissions inventory for the 

Northern Kentucky Area pursuant to 

section 172(c)(3) of the CAA. In today’s 

action, EPA is concluding the adequacy 

process by finding the new MVEBs for 

the Northern Kentucky Area adequate 

for the purposes of transportation 

conformity. Within 24 months from the 

date of publication for this final action, 

the transportation partners are required 

to demonstrate conformity to the new 

PM2.5 and NOX MVEBs pursuant to 40 

CFR 93.104(e). 

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 

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 

Commonwealth of various requirements 

for the Northern Kentucky 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. 

VII. 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 a 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 a significant regulatory 

action subject to Executive Order 13211 

(66 FR 28355, May 22, 2001); 

• Are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and, 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this 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 February 13, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, and Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks. 

Dated: December 7, 2011. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

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. 

Subpart S—Kentucky 

■ 2. Section 52.920(e) is amended by 

adding a new entry ‘‘1997 Annual PM2.5


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Federal Register / Vol. 76, No. 241 / Thursday, December 15, 2011 / Rules and Regulations 77909 

Maintenance Plan for the Northern 

Kentucky Area’’ at the end of the table 

to read as follows: 

§ 52.920 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS

Name of non-regulatory SIP 

provision 

Applicable geographic or 

nonattainment area 

State submittal 

date/effective 

date 

EPA approval date Explanations 

*******

1997 Annual PM2.5 Maintenance Plan for the Northern 

Kentucky Area.

Boone, Campbell and Kenton 

Counties (Kentucky portion 

of the Cincinnati-Hamilton 

OH-KY-IN Area).

1/27/11 12/15/2011. [Insert citation of 

publication].

For the 1997 Annual PM2.5

NAAQS. 

PART 81—[AMENDED] 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. In § 81.318, the table entitled 

‘‘Kentucky—PM2.5 (Annual NAAQS)’’ is 

amended under ‘‘Cincinnati-Hamilton, 

OH-KY-IN’’ by revising the entries for 

‘‘Boone County,’’ ‘‘Campbell County,’’ 

and ‘‘Kenton County’’ to read as follows: 

§ 81.318 Kentucky. 

* * * * * 

KENTUCKY—PM2.5

[Annual NAAQS] 

Designated area 

Designation a

Date 1 Type 

Cincinnati-Hamilton, OH-KY-IN: 

Boone County ....................................................................... This action is effective December 15, 2011 Attainment. 

Campbell County .................................................................. This action is effective December 15, 2011 Attainment. 

Kenton County ...................................................................... This action is effective December 15, 2011 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. 2011–32058 Filed 12–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2010–0672; FRL–9507–6] 

RIN 2060–AQ39 

Protection of Stratospheric Ozone: 

Extension of the Laboratory and 

Analytical Use Exemption for Essential 

Class I Ozone-Depleting Substances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is extending the 

laboratory and analytical use exemption 

for the production and import of Class 

I ozone-depleting substances through 

December 31, 2014. This action is taken 

under the Clean Air Act consistent with 

the recent actions by the Parties to the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer. The 

exemption allows the production and 

import of controlled substances in the 

United States for laboratory and 

analytical uses that have not been 

already identified by EPA as 

nonessential. 

DATES: This action is effective on 

December 15, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2010–0672. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air and Radiation Docket, 

EPA/DC, EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566– 

1742). 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Arling by regular mail: U.S. 

Environmental Protection Agency, 

Stratospheric Protection Division 

(6205J), 1200 Pennsylvania Avenue 

NW., Washington, DC 20460; by courier 

service or overnight express: 1301 L 

Street NW., Washington, DC 20005; by 

telephone: (202) 343–9055; or by email: 

arling.jeremy@epa.gov. You may also 

visit the EPA’s Ozone Protection Web 

site at http://www.epa.gov/ozone/ 

strathome.html for further information 

about EPA’s Stratospheric Ozone 

Protection regulations, the science of 

ozone layer depletion, and other related 

topics. 

SUPPLEMENTARY INFORMATION: Section 

553(d) of the Administrative Procedure 

Act (APA), 5 U.S.C. Chapter 5, generally 


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