Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21663 

reference of St. Petersburg Automated 

Flight Service Station from the 

descriptor. This action enhances the 

safety and management of Instrument 

Flight Rules (IFR) operations for 

standard instrument approach 

procedures at the airport. 

DATES: Effective 0901 UTC, May 31, 

2012. The Director of the Federal 

Register approves this incorporation by 

reference action under title 1, Code of 

Federal Regulations, part 51, subject to 

the annual revision of FAA Order 

7400.9 and publication of conforming 

amendments. 

FOR FURTHER INFORMATION CONTACT: John 

Fornito, Operations Support Group, 

Eastern Service Center, Federal Aviation 

Administration, P.O. Box 20636, 

Atlanta, Georgia 30320; telephone (404) 

305–6364. 

SUPPLEMENTARY INFORMATION: 

History 

The FAA received notice from the 

National Aeronautical Navigation 

Services (NANS) that St. Petersburg 

Automated Flight Service Station has 

closed and its reference should be 

updated in the descriptor of Cape 

Canaveral Skid Strip, Cocoa Beach, FL. 

Also, the geographic coordinates for the 

airport need correcting to coincide with 

the FAAs aeronautical database. 

Class D airspace designations are 

published in Paragraphs 5000, of FAA 

Order 7400.9V dated August 9, 2011, 

and effective September 15, 2011, which 

is incorporated by reference in 14 CFR 

part 71.1. The Class D airspace 

designations listed in this document 

will be published subsequently in the 

Order. 

The Rule 

This amendment to Title 14, Code of 

Federal Regulations (14 CFR) part 71 

amends Class D airspace at Cocoa 

Beach, FL. The geographic coordinates 

of the Cape Canaveral Skid Strip are 

corrected to coincide with the FAAs 

aeronautical database and St. Petersburg 

Automated Flight Service Station will 

be removed from the descriptor. 

Accordingly, since this is an 

administrative change, and does not 

involve a change in the dimensions or 

operating requirements of that airspace, 

notice and public procedures under 5 

U.S.C. 553 (b) are unnecessary. 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current, is non-controversial and 

unlikely to result in adverse or negative 

comments. It, therefore, (1) is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866; (2) is not a 

‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures 

(44 FR 11034; February 26, 1979); and 

(3) does not warrant preparation of a 

Regulatory Evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle I, Section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Subpart I, Section 

40103. Under that section, the FAA is 

charged with prescribing regulations to 

assign the use of airspace necessary to 

ensure the safety of aircraft and the 

efficient use of airspace. This regulation 

is within the scope of that authority as 

it establishes and amends controlled 

airspace at Cape Canaveral Skid Strip, 

Cocoa Beach FL. 

Lists of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for part 71 

continues to read as follows: 

Authority: 49 U.S.C. 106(g); 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of Federal Aviation 

Administration Order 7400.9V, Airspace 

Designations and Reporting Points, 

dated August 9, 2011, and effective 

September 15, 2011, is amended as 

follows: 

Paragraph 5000 Class D airspace. 

* * * * * 

ASO FL D Cocoa Beach, FL [Amended] 

Cape Canaveral Skid Strip, FL 

(Lat. 28°28′04′′ N., long. 80°34′01′′ W.) 

That airspace extending upward from the 

surface to and including 2,500 feet MSL 

within a 4.4-mile radius of the Cape 

Canaveral Skid Strip. This airspace lies 

within the confines of R–2932 and is 

effective on a random basis. The effective 

days and times are continuously available 

from Miami Automated Flight Service 

Station. 

Issued in College Park, Georgia, on March 

30, 2012. 

Barry A . Knight, 

Manager, Operations Support Group, Eastern 

Service Center, Air Traffic Organization. 

[FR Doc. 2012–8558 Filed 4–10–12; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0255; FRL–9657–4] 

Air Quality Implementation Plans; 

Kentucky; Attainment Plan for the 

Kentucky Portion of the HuntingtonAshland 1997 Annual PM2.5

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the Kentucky state 

implementation plan (SIP) submitted by 

the Commonwealth of Kentucky, 

through the Kentucky Energy and 

Environment Cabinet, Division for Air 

Quality (DAQ), to EPA on December 3, 

2008, for the purpose of providing for 

attainment of the 1997 fine particulate 

matter (PM2.5) national ambient air 

quality standards (NAAQS) in the 

Kentucky portion of the HuntingtonAshland, West Virginia-Kentucky-Ohio 

PM2.5 nonattainment area (hereafter 

referred to as the ‘‘Huntington-Ashland 

Area’’ or ‘‘Area’’). The HuntingtonAshland Area is comprised of Boyd 

County and a portion of Lawrence 

County in Kentucky; Cabell and Wayne 

Counties and a portion of Mason County 

in West Virginia; and Lawrence and 

Scioto Counties and portions of Adams 

and Gallia Counties in Ohio. The 

Kentucky plan at issue in this action 

(hereafter referred to as the ‘‘PM2.5

attainment plan’’) pertains only to the 

Kentucky portion of the HuntingtonAshland Area. As proposed on January 

30, 2012, EPA is approving Kentucky’s 

PM2.5 attainment plan, which includes 

an attainment demonstration; 

reasonably available control technology 

(RACT) and reasonably available control 

measures (RACM); reasonable further 


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21664 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

1The determination of attainment is not a 

redesignation of the Area from nonattainment to 

attainment and is not an indication that the Area 

will continue to maintain the standard for which 

the determination is made. It is merely a 

determination that the Area attained the standard 

for a particular three year period and also by the 

deadline. Please see EPA’s September 7, 2011, 

rulemaking for more detail on the effects of a 

determination of attainment. 

progress (RFP); base-year and 

attainment-year emissions inventories; 

contingency measures; and, for 

transportation conformity purposes, an 

insignificance determination for direct 

PM2.5 and nitrogen oxides (NOX) for the 

mobile source contribution to ambient 

PM2.5 levels for the Commonwealth’s 

portion of the Huntington-Ashland 

Area. This action is being taken in 

accordance with the Clean Air Act (CAA 

or Act) and the ‘‘Clean Air Fine Particle 

Implementation Rule,’’ hereafter 

referred to as the ‘‘PM2.5 Implementation 

Rule,’’ published on April 25, 2007. 

EPA is also responding to adverse 

comments received on the proposed 

approval of Kentucky’s PM2.5 attainment 

plan. 

DATES: This rule will be effective May 

11, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0255. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Joel 

Huey, Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, Region 4, 

U.S. Environmental Protection Agency, 

61 Forsyth Street SW., Atlanta, Georgia 

30303–8960. The telephone number is 

(404) 562–9104. Mr. Huey can also be 

reached via electronic mail at huey.

joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What action is EPA taking? 

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

III. What is EPA’s response to comments? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is approving a SIP revision, 

submitted through the DAQ to EPA on 

December 3, 2008, for the purpose of 

demonstrating attainment of the 1997 

Annual PM2.5 NAAQS for the Kentucky 

portion of the Huntington-Ashland 

Area. Specifically, EPA is approving 

Kentucky’s PM2.5 attainment plan, 

which includes an attainment 

demonstration; an analysis of RACM/ 

RACT; a RFP plan; base-year and 

attainment-year emissions inventories; 

contingency measures; and an 

insignificance determination for mobile 

direct PM2.5 and NOX emissions for 

transportation conformity purposes for 

Kentucky’s portion of the HuntingtonAshland Area. 

EPA has determined that Kentucky’s 

PM2.5 attainment plan for the 1997 

Annual PM2.5 NAAQS for its portion of 

the Huntington-Ashland Area meets 

applicable requirements of the CAA and 

the PM2.5 Implementation Rule. More 

detail on EPA’s rationale for this 

approval can be found in EPA’s January 

30, 2012, proposed rulemaking for this 

action (see 75 FR 4510). Section III of 

this rulemaking responds to the adverse 

comments received on EPA’s January 

30, 2012, proposal. 

II. What is the background for EPA’s 

action? 

On April 25, 2007, EPA published the 

PM2.5 Implementation Rule for the 1997 

PM2.5 NAAQS (72 FR 20586). This rule 

describes the CAA framework and 

requirements for developing SIPs to 

achieve attainment in areas designated 

nonattainment for the 1997 PM2.5

NAAQS. Such attainment plans must 

include a demonstration that a 

nonattainment area will meet the 

applicable NAAQS within the 

timeframe provided in the statute. For 

the 1997 PM2.5 NAAQS, an attainment 

demonstration must show that a 

nonattainment area will attain the 

standards as expeditiously as 

practicable, but within five years of 

designation (i.e., by an attainment date 

of no later than April 5, 2010, based on 

air quality data for 2007 through 2009). 

As mentioned above, Kentucky 

provided the Commonwealth’s SIP 

revision with the attainment plan (the 

subject of this rulemaking) for the 

Kentucky portion of the HuntingtonAshland Area on December 3, 2008. 

On September 7, 2011, EPA published 

a final rulemaking with a determination 

that the Huntington-Ashland Area has 

attained the 1997 Annual PM2.5

NAAQS. See 76 FR 55542. That 

determination was based on the most 

recent three years of complete, qualityassured, quality controlled and certified 

ambient air monitoring data showing 

that the Area has met the 1997 Annual 

PM2.5 NAAQS. EPA also determined, in 

the September 7, 2011, rulemaking, and 

in accordance with CAA 179(c), that the 

Huntington-Ashland Area had attained 

the 1997 Annual PM2.5 NAAQS by its 

applicable attainment date of April 5, 

2010. 

As discussed in the September 7, 

2011, rulemaking, EPA’s determination 

of attainment 1 suspended the obligation 

for the State to meet planning SIP 

requirements for the Area for so long as 

the Area continues to attain the 1997 

Annual PM2.5 NAAQS. See 40 CFR 

51.1004(c). The state must still submit 

required emissions inventories 

consistent with appropriate timelines. 

The suspended planning SIP 

submission obligations include the 

attainment demonstration (including in 

this case the mobile source 

insignificance determination submitted 

to satisfy transportation conformity 

requirements), associated RACM/RACT, 

RFP and the associated contingency 

measures. Despite the suspension of the 

aforementioned requirements for the 

Huntington-Ashland Area for the 1997 

Annual PM2.5 NAAQS, Kentucky has 

requested that EPA take action on its 

planning SIP for this Area in part 

because the SIP submittal includes the 

insignificance determination. Further, 

in September 2011, EPA agreed in a 

Consent Decree to take action on these 

submissions. 

EPA notes that on December 22, 2011, 

EPA published a proposal to approve 

the State of Ohio’s request to 

redesignate to attainment the Ohio 

portion of the Huntington-Ashland 

Area. 76 FR 79593. EPA has also 

received requests from Kentucky and 

the State of West Virginia to redesignate 

their respective portions of the 

Huntington-Ashland Area but has not 

yet proposed action on those 

submissions. 

Monitoring data thus far available, but 

not yet certified, in the Air Quality 

System (AQS) database for 2011 show 

that this Area continues to meet the 

1997 Annual PM2.5 NAAQS at this time. 

As shown in the table below, ambient 

PM2.5 levels in the Huntington-Ashland 

Area have declined steadily since 


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Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21665 

2The court specifically elected not to vacate the 

RACT provision and left open the possibility that 

EPA may be able to reinstate the provision for 

particular nonattainment areas if, upon conducting 

a technical analysis, it finds the NOX SIP Call 

results in greater emissions reductions in a 

nonattainment area than would be achieved if 

RACT-level controls were installed in that area. Id. 

at 1258. 

Kentucky submitted its PM2.5

attainment plan in 2008. 

ANNUAL AVERAGE DESIGN VALUE CONCENTRATIONS IN THE HUNTINGTON-ASHLAND AREA

Site name County Site No. 

Design values (average of three consecutive annual 

average concentrations) (μg/m3) 

2008 2009 2010 2011 * 

Huntington ................................ Cabell, WV ................................ 54–011–0006 15.2 14.3 13.1 12.1 

Ashland Primary (FIVCO) ......... Boyd, KY ................................... 21–019–0017 13.4 12.4 11.4 10.9 

Ironton DOT .............................. Lawrence, OH ........................... 39–087–0012 13.4 12.2 12.2 11.4 

* Monitoring data for 2011 are available but not yet certified in the AQS database. 

EPA understands that the 

Commonwealth chose not to withdraw 

the attainment plan SIP revision for the 

Huntington-Ashland Area because it 

includes a mobile insignificance 

determination for direct PM2.5 and NOX

emissions from mobile sources. 

Therefore, as mentioned above, 

although the SIP planning requirements 

for the 1997 Annual PM2.5 NAAQS have 

been suspended for the HuntingtonAshland Area, EPA is acting on 

Kentucky’s attainment plan because of 

the Consent Decree obligation to do so 

and because it remains a submittal to 

EPA. 

On January 30, 2012, EPA proposed to 

approve Kentucky’s PM2.5 attainment 

plan, which includes an attainment 

demonstration; RACT and RACM; RFP; 

base-year and attainment-year emissions 

inventories; contingency measures; and, 

for transportation conformity purposes, 

an insignificance determination for 

direct PM2.5 and NOX for the mobile 

source contribution to ambient PM2.5

levels for the Commonwealth’s portion 

of the Huntington-Ashland Area. As 

mentioned above, more detail on EPA’s 

rationale for this approval can be found 

in EPA’s January 30, 2012, proposed 

rulemaking for this action. See 77 FR 

4510. Section III of this rulemaking 

responds to the adverse comments 

received on EPA’s January 30, 2012, 

proposal. 

III. What is EPA’s response to 

comments? 

On February 29, 2012, EPA received 

comments on EPA’s January 30, 2012, 

proposal submitted by Robert Ukeiley 

on behalf of Sierra Club. In summary, 

the Commenter states EPA cannot 

approve the Kentucky December 3, 

2008, SIP revision because it: (1) Relies 

on inaccurate and inadequate emission 

reductions in its attainment 

demonstration modeling and emissions 

inventory, in part because of the status 

of the NOX SIP Call, CAIR and the 

industrial boiler/heater MACT (40 CFR 

part 63, subpart DDDDD); (2) relies on 

temporary and unenforceable emission 

reductions from the Big Sandy Power 

Plant; (3) has not been evaluated for 

reasonably available control measures 

for the nonattainment area; and (4) 

includes on-road mobile source 

emission calculations which fail to 

consider 15 percent ethanol in gasoline. 

The complete set of comments is 

provided in the docket for this 

rulemaking. A summary of the specific 

comments and EPA’s responses to them 

are provided below. 

Emission Reductions 

Comment 1: The Commenter contends 

that it is problematic to ‘‘credit’’ 

emission reductions associated with the 

NOX SIP Call because that is a cap-andtrade program. The Commenter cites to 

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

Cir. 2009) for support of the proposition 

that, because EPA cannot predict which 

sources will reduce emissions, EPA 

cannot rely on the NOX SIP Call for 

future reductions. The Commenter 

makes a similar contention regarding 

the Clean Air Interstate Rule (CAIR). 

The Commenter states that any source 

could decide at any time in the future 

to purchase emissions credits and 

increase its emissions and impacts to 

the Huntington-Ashland Area. The 

Commenter adds that emissions banking 

can also lead to violations of the 

NAAQS and prevents CAIR emission 

budgets from being permanent and 

enforceable emission limits. The 

Commenter concludes by explaining his 

opinion that, although DAQ modeled 

hypothetical effects of CAIR well 

beyond 2011 in its 2018 projected 

inventory, it is not even clear that EPA 

is fully enforcing CAIR at this point. 

Response 1: EPA notes that the 

Huntington-Ashland Area attained the 

1997 Annual PM2.5 NAAQS by the 

applicable attainment date of April 5, 

2010, and that the emission control 

measures that led to that attainment 

were in place at least through that date. 

For this PM2.5 attainment plan the 

modeled attainment year is 2009. The 

year 2018 was modeled by the Visibility 

Improvement State and Tribal 

Association of the Southeast (VISTAS) 

for the purposes of Kentucky’s Regional 

Haze SIP. 

EPA disagrees with the Commenter’s 

position that emission reductions 

occurring within the relevant 

nonattainment area cannot be relied 

upon for the purpose of attainment 

demonstrations if they are associated 

with the emissions trading programs 

established in the NOX SIP Call and 

CAIR. The case cited by the Commenter 

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

2009), does not support the 

Commenter’s position and is entirely 

consistent with EPA’s position here. 

That case addressed EPA’s 

determination that the nonattainment 

RACT requirement was satisfied by the 

NOX SIP Call trading program. The 

court emphasized that reductions 

outside the nonattainment area do not 

satisfy the RACT requirement and thus 

held that because EPA had not shown 

the trading program would result in 

sufficient reductions in a nonattainment 

area, its determination that the program 

satisfied RACT was not supported.2 Id. 

at 1256–58. The court did not hold, as 

the Commenter suggests, that emissions 

trading programs must be ignored when 

evaluating nonattainment area 

requirements. 

There is simply no support for the 

Commenter’s argument that attainment 

modeling demonstrations must ignore 

all emission reductions achieved by the 

NOX SIP Call and CAIR simply because 

the mechanism used to achieve the 

reductions is an emissions trading 

program. As a general matter, these 

programs cap and permanently reduce 

the total emissions allowed by sources 

subject to the programs. Any purchase 

of allowances and increase in emissions 


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3Although CAIR was remanded to EPA in 2008, 

it remained in force and enforceable through the 

April 5, 2010, attainment date. 

by one source covered by the program 

necessitates a corresponding sale of 

allowances and reduction in emissions 

by another covered source. Given the 

regional nature of particulate matter, the 

corresponding emission reduction will 

have an air quality benefit that will 

compensate, at least in part, for the 

impact of any emission increase. Where 

an area can show that it will attain the 

standard with the reductions from 

enforceable trading programs, as done 

here,3 the area may take credit for the 

reductions from that program. 

The Commenter’s contention that EPA 

cannot rely on trading programs that 

allow banking is also not on point. The 

comment is not relevant in this context 

where the trading programs in question 

were in place through the attainment 

deadline and the Area did attain by that 

deadline. The fact that the HuntingtonAshland Area attained the PM2.5

standard by the April 2010 attainment 

date with these trading programs in 

place belies the argument that banking 

of allowances might cause the Area to 

fail to attain by its attainment date. 

Moreover, there is no support for the 

Commenter’s contention, based on the 

flawed premise that allowance banking 

somehow renders those programs’ 

emission reduction requirements 

impermanent or unenforceable, that 

EPA must ignore reductions associated 

with any trading program that allows 

banking. In general, banking provides 

economic incentives for early 

reductions in emissions and encourages 

sources to install controls earlier than 

required for compliance with future 

caps on emissions. The fact that 

reductions may occur more quickly than 

required (freeing up allowances that 

may then be banked) does not, in any 

way, undermine the permanence or 

enforceability of the requirements in the 

underlying rule. 

In sum, contrary to petitioner’s 

contention, the decision of D.C. Circuit 

in NRDC v. EPA does not establish that 

emission reductions from cap and trade 

programs, or emission reductions from 

cap and trade programs that allow 

banking, may not be relied upon for 

attainment modeling demonstrations. 

As discussed in EPA’s proposal notice, 

DAQ utilized appropriate emissions 

inventory and modeling guidance to 

make this demonstration, which is 

consistent with the Area’s current status 

as attaining the standard. For these 

reasons, EPA disagrees that the 

Commenter has identified a basis on 

which EPA should disapprove 

Kentucky’s attainment plan. 

With regard to CAIR, EPA published 

this rule on May 12, 2005, to address the 

interstate transport requirements of the 

CAA. See 76 FR 70093. As originally 

promulgated, CAIR requires significant 

reductions in emissions of sulfur 

dioxide (SO2) and NOX to limit the 

interstate transport of these pollutants. 

In 2008, however, the D.C. Circuit 

remanded CAIR back to EPA. North 

Carolina v. EPA, 550 F.3d 1176. The 

Court found CAIR to be inconsistent 

with the requirements of the CAA, 

North Carolina v. EPA, 531 F.3d 896 

(D.C. Cir. 2008), but ultimately 

remanded the rule to EPA without 

vacatur because it found that ‘‘allowing 

CAIR to remain in effect until it is 

replaced by a rule consistent with [the 

court’s] opinion would at least 

temporarily preserve the environmental 

values covered by CAIR.’’ North 

Carolina v. EPA, 550 F.3d at 1178. CAIR 

thus remained in place following the 

remand and was in place and 

enforceable through the April 5, 2010, 

attainment date. 

In response to the court’s decision, 

EPA has issued a new rule to address 

interstate transport of NOX and SO2 in 

the eastern United States (i.e., the 

Transport Rule, also known as the 

Cross-State Air Pollution Rule). See 76 

FR 48208, August 8, 2011. In the 

Transport Rule, EPA finalized 

regulatory changes to sunset (i.e., 

discontinue) CAIR and the CAIR FIPs 

for control periods in 2012 and beyond. 

See 76 FR 48322. 

On December 30, 2012, the D.C. 

Circuit issued an order addressing the 

status of the Transport Rule and CAIR 

in response to motions filed by 

numerous parties seeking a stay of the 

Transport Rule pending judicial review. 

In that order, the D.C. Circuit stayed the 

Transport Rule pending the court’s 

resolution of the petitions for review of 

that rule in EME Homer Generation, L.P. 

v. EPA (No. 11–1302 and consolidated 

cases). The court also indicated that 

EPA is expected to continue to 

administer CAIR in the interim until the 

court rules on the petitions for review 

of the Transport Rule. 

EPA does not believe that the 

circumstances set forth above make it 

inappropriate, in any way, to finalize its 

proposed approval of the HuntingtonAshland attainment plan. While the 

data that shows the Area attained the 

1997 Annual PM2.5 NAAQS by the April 

2010 attainment deadline is impacted 

by CAIR, which is in place only 

temporarily, EPA’s analysis for the 

Transport Rule demonstrates that the 

Area would be able to attain the NAAQS 

even in the absence of CAIR. See 

Appendix B to the Air Quality Modeling 

Final Rule Technical Support Document 

for the Cross-State Air Pollution Rule. 

Moreover, although the court has stayed 

the implementation of the Transport 

Rule at this time, EPA believes that the 

rule has a strong legal basis. To the 

extent that the current status of CAIR 

and the Transport Rule affect any of the 

criteria for approval of this SIP revision, 

EPA believes that the ongoing 

implementation and enforcement of 

CAIR during the period of the stay, 

coupled with the promulgation of the 

Transport Rule, provide adequate 

assurance of these components. EPA 

again notes that this action approves an 

attainment demonstration that the Area 

will attain in 2010, which the Area did. 

As of 2010, CAIR was an enforceable 

control measure applicable to the Area. 

Any issues of the effect of the ongoing 

litigation surrounding the Transport 

Rule which will replace CAIR will need 

to be addressed by the Area in any plan 

demonstrating maintenance of the PM2.5

standard into the future, which is not at 

issue in this attainment demonstration. 

Comment 2: The Commenter contends 

that EPA cannot approve the Kentucky 

submittal because DAQ included, 

among its controls, a hazardous air 

pollutant rule found at 40 CFR part 63, 

subpart DDDDD, that was vacated in 

June 2007. More specifically, the 

Commenter suggests that EPA cannot 

rely on a claim that emission reductions 

attributed to a vacated rule will be an 

‘‘insignificant fraction’’ of total 

emissions. 

Response 2: As noted by the 

Commenter, nonattainment plans must 

include ‘‘a comprehensive, accurate, 

current inventory of actual emissions 

from all sources of the relevant 

pollutant or pollutants * * * ’’ See, e.g., 

CAA section 172(c)(3). As a point of 

clarification, this is the inventory EPA 

is approving for the purposes of CAA 

section 172(c)(3). Kentucky selected 

2002 as the base year for the emissions 

inventory in accordance with 40 CFR 

51.1008(b). The 2002 emissions 

inventory was based on data developed 

by VISTAS contractors and submitted 

by the states to the 2002 National 

Emissions Inventory. Several iterations 

of the 2002 inventories were developed 

for the different emission source 

categories resulting from revisions and 

updates to the data. This resulted in the 

use of version G2 of the updated 2002 

emissions inventory, which does not 

include the boiler MACT reductions. 

EPA also notes that DAQ not only 

acknowledges that the final 2009 

inventory and modeling demonstration 

include emissions reductions 


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Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21667 

4Final action was signed by the Region 4 

Administrator on March 13, 2012. 

attributable to the vacated rule, but also 

provides a reasonable demonstration for 

why such inclusion does not impact the 

results of the modeling. Following 

detailed analysis and presentation of 

calculations, DAQ summarizes that the 

emissions sensitivity results for the 

Boyd County, Kentucky, monitor 

indicate that the SO2 and primary PM2.5

emissions assumed under the vacated 

boiler MACT would result in a total 

increase in the ambient PM2.5

concentration of 0.0009 micrograms per 

cubic meter (mg/m3). DAQ reasonably 

concluded that this level of impact 

would not change the conclusion that 

the Huntington-Ashland Area would 

attain the 1997 Annual PM2.5 NAAQS 

by its applicable attainment date of 

April 5, 2010. As EPA indicated earlier 

in this rulemaking, EPA determined that 

the Huntington-Ashland Area attained 

the standard by April 5, 2010. For these 

reasons, EPA disagrees that the 

Commenter has identified a basis on 

which EPA should disapprove 

Kentucky’s attainment plan. 

Big Sandy Power Plant 

Comment 3a: The Commenter asserts 

that the Big Sandy Power Plant in 

Lawrence County, Kentucky, is the 

largest single source of PM2.5 precursor 

emissions in the Huntington-Ashland 

Area and raises several issues associated 

with Kentucky’s treatment of the plant’s 

emissions. First, the Commenter 

contends that DAQ’s attainment year 

modeling relies on artificially low 

emissions from the Big Sandy Power 

Plant because, the Commenter alleges, 

Kentucky modeled attainment during 

2008, which the Commenter states was 

the ‘‘largest economic recession in 

recent times.’’ To support its contention, 

the Commenter identifies heat input 

data and SO2 and NOX emissions data 

for Big Sandy’s Unit 1 and Unit 2 for the 

years 2007 through 2010. The 

Commenter concludes by saying that 

EPA must require Kentucky’s SIP to 

include enforceable limits for both Big 

Sandy units, restricting emissions to the 

lowest levels achieved during the 

attainment modeling years, 2007–2011. 

Response 3a: As an initial point of 

clarification, Kentucky modeled 

attainment during 2009, not 2008 as 

stated by the Commenter. See Chapter 6 

of the attainment demonstration 

narrative. Additionally, as shown in 

EPA’s January 30, 2012, proposal notice, 

all 2009 predicted (modeled) annual 

PM2.5 design values for the monitors of 

the Huntington-Ashland Area were 

higher than the values actually 

measured at those sites in 2009. Further, 

the emissions assumed for the Big 

Sandy Power Plant were projections 

based upon DAQ’s knowledge of the 

facility’s future plans when the 

modeling was performed, not actual 

emissions that occurred in 2008. Based 

on actual ambient data, EPA has already 

determined that the Area attained the 

1997 Annual PM2.5 standard by its April 

5, 2010, attainment date. The 2008 

economic downturn was irrelevant to, 

and in fact occurred after, the modeling 

results were produced. Finally, EPA 

finds that the modeling conducted for 

the 2009 attainment year used the 

VISTAS Best & Final emissions 

inventory. See PM2.5 attainment plan 

submittal, Appendix F (‘‘DRAFT 

Documentation of the Base G2 and Best 

& Final 2002 Base Year, 2009 and 2018 

Emission Inventories for VISTAS’’), 

page 3. This inventory shows Big Sandy 

Unit 1 having neither selective catalytic 

reduction (SCR) nor a scrubber in 2009, 

and Unit 2 having SCR since 2003 but 

no scrubber in 2009. See PM2.5

attainment plan submittal, Appendix I 

(‘‘EGU CONTROLS FOR COAL AND 

OIL/GAS UNITS FOR THE BEST & 

FINAL INVENTORY’’) of Appendix F, 

page 260. This is consistent with what 

is shown for these units on EPA’s Clean 

Air Market Division’s Web site. For 

these reasons, EPA has determined that 

the Commenter has not provided a basis 

on which to disapprove the revision 

with respect to the above-described 

modeling issues. 

With regard to the Commenter’s 

statements about emission limits, the 

Big Sandy facility has numerous 

emission limitations for relevant 

pollutants. In addition, the facility was 

included in the October 2007 federal 

Consent Decree resolving an 

enforcement matter between EPA and 

American Electric Power Company 

which operates the Big Sandy facility. 

See http://www.epa.gov/compliance/ 

resources/cases/civil/caa/ 

americanelectricpower1007.html (last 

visited 3/15/12) for additional 

information. The facility is also subject 

to a number of other CAA programs 

including but not limited to the regional 

haze program. As part of Kentucky’s 

regional haze SIP, on which EPA 

recently took final action, the facility 

will be installing ammonia injection 

controls on Unit 1 and flue gas 

desulfurization on Unit 2.4 Through 

these and other requirements, the 

facility is subject to enforceable 

emission limits. For these reasons, EPA 

disagrees that the Commenter has 

identified a basis on which EPA should 

disapprove Kentucky’s attainment plan. 

Comment 3b: The Commenter states 

that DAQ’s attainment demonstration 

modeling lists emission controls at the 

Big Sandy Power Plant inaccurately. 

The Commenter contends that DAQ 

made adjustments to its Integrated 

Planning Model (IPM) results for the 

2009 and 2018 electric generating unit 

(EGU) inventories to account for various 

control measures and that this renders 

DAQ’s modeling flawed for the 

attainment year of 2009. The 

Commenter concludes that EPA should 

require DAQ to include in the Kentucky 

SIP an enforceable schedule for 

installation of a SCR and scrubber at Big 

Sandy. 

Response 3b: As noted in the response 

above, the modeling presented by 

Kentucky used the correct assumptions 

about emission controls at Big Sandy in 

2009. The 2002 emissions inventory was 

based on data that was developed by the 

VISTAS contractors and submitted by 

the states to the 2002 National 

Emissions Inventory. As required by 

section 172(c)(3), and as discussed in 

the modeling documentation submitted 

by Kentucky, the 2002 base year 

inventory is an inventory of actual 

emissions in the Area. For the projected 

2009 attainment year inventory, VISTAS 

relied primarily on the IPM to project 

future power generation and to calculate 

the impact of future emission control 

programs as of October 1, 2007. The 

State and local agencies were then asked 

to identify any updates needed to better 

reflect current information on when and 

where future controls would occur 

based on the best available data from 

state rules, enforcement agreements, 

compliance plans, permits and other 

sources. See PM2.5 attainment plan 

submittal, Appendix F (‘‘DRAFT 

Documentation of the Base G2 and Best 

& Final 2002 Base Year, 2009 and 2018 

Emission Inventories for VISTAS’’). 

Kentucky indicated that Big Sandy Unit 

1 was not expected to have a scrubber 

or SCR control operational in 2009 (IPM 

had projected these controls would be 

in use by Big Sandy Unit 1 in 2009). In 

February 2008, VISTAS used this 

updated information in completing the 

Best & Final inventory, which was used 

in the modeling relied upon by 

Kentucky. 

Further, as explained earlier, the 

facility is subject to several CAA 

programs involving the installation of 

controls and/or specific emission limits 

for relevant pollutants. The Area has 

demonstrated attainment of the PM2.5

NAAQS already and, considering future 

controls and limits, EPA disagrees that 

the Commenter has identified a basis on 

which EPA should disapprove 

Kentucky’s attainment plan. 


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21668 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

Reasonably Available Control Measures 

Comment 4a: The Commenter raises 

several issues regarding the HuntingtonAshland Area’s RACM/RACT analysis. 

First, the Commenter states that DAQ 

did not conduct a RACM/RACT analysis 

for this Area, but rather, another nearby 

area, the bi-state Louisville Area 

(Kentucky and Indiana). 

Response 4a: Kentucky’s December 3, 

2008, SIP revision included attainment 

plans for all three of Kentucky’s 

nonattainment areas for the 1997 

Annual PM2.5 NAAQS: Louisville, 

Kentucky-Indiana; Cincinnati-Hamilton, 

Ohio-Kentucky-Indiana; and 

Huntington-Ashland, West VirginiaKentucky-Ohio. Although DAQ 

summarizes, in chapter 7 of the 

December 3, 2008 SIP revision, a 

detailed air quality analysis contracted 

for the Louisville Area, the overall 

RACM and RACT discussion is 

intended for all three of the identified 

PM2.5 nonattainment areas. 

EPA interprets RACT for PM2.5 as 

linked to attainment needs of an area. If 

an area is attaining the PM2.5 NAAQS, 

EPA deems the RACT requirement to be 

satisfied. Therefore, under EPA’s 

interpretation of the RACT requirement, 

as it applies to PM2.5, Kentucky has 

satisfied the requirement. 

In accordance with 40 CFR section 

51.1004(c), EPA’s September 7, 2011, 

determination that the HuntingtonAshland Area has attained the 1997 

Annual PM2.5 NAAQS suspended the 

requirement for the Area to submit an 

attainment demonstration and 

associated RACM, including RACT, 

related to the 1997 Annual PM2.5

NAAQS. EPA has noted that certain 

language in the preamble of the PM2.5

Implementation Rule contradicts the 

regulatory text in 40 CFR 51.1004(c). On 

May 22, 2008, EPA issued a 

memorandum ‘‘to eliminate any 

confusion that could result from this 

erroneous statement.’’ Memorandum 

from William T. Harnett, Director, Air 

Quality Policy Division to Regional Air 

Division Directors, ‘‘PM2.5 Clean Data 

Policy Clarification.’’ This 

memorandum states: 

‘‘Section 51.1004(c) provides that: 

‘Upon a determination by EPA that an 

area designated nonattainment for the 

PM2.5 NAAQS has attained the standard, 

the requirements for such area to submit 

attainment demonstrations and 

associated reasonably available control 

measures, reasonable further progress 

plans, contingency measures, and other 

planning SIPs related to attainment of 

the PM2.5 NAAQS shall be suspended. 

* * *’ 

‘‘Section 51.1010 provides in part: 

‘For each PM2.5 nonattainment area, the 

State shall submit with the attainment 

demonstration a SIP revision 

demonstrating that it has adopted all 

reasonably available control measures 

(including RACT for stationary sources) 

necessary to demonstrate attainment as 

expeditiously as practicable and to meet 

any RFP requirements.’ 

‘‘Thus the regulatory text defines 

RACT as included in RACM, and 

provides that it is only required insofar 

as it is necessary to advance attainment. 

See also section 51.1010(b). As a result, 

when an area is attaining the standard, 

the suspension of the RACM 

requirement pursuant to 51.1004(c) 

necessarily includes the suspension of 

the RACT requirement.’’ 

EPA has already determined that the 

Huntington-Ashland Area attained the 

1997 Annual PM2.5 NAAQS by its April 

2010 attainment date based on controls 

that were in force at least through that 

date. In addition, as explained above, 

modeling done for the Cross-State Air 

Pollution Rule demonstrates that the 

Area would attain in the absence of 

CAIR. For these reasons, EPA disagrees 

that the Commenter has identified a 

basis on which EPA should disapprove 

Kentucky’s attainment plan. 

Comment 4b: The Commenter appears 

to disagree with EPA’s interpretation of 

40 CFR 51.1010 and contends that 

measures must be adopted which are 

necessary to demonstrate attainment as 

expeditiously as practicable. 

Response 4b: Section 51.1010(b) of 

the PM2.5 Implementation Rule provides 

that ‘‘[p]otential measures that are 

reasonably available considering 

technical and economic feasibility must 

be adopted as RACM if, considered 

collectively, they would advance the 

attainment date by one year or more.’’ 

In order to advance the attainment date 

by at least one year, the state would first 

have to know their projected attainment 

date. As stated in EPA’s January 30, 

2012, proposed rulemaking, Kentucky 

participated in a modeling project of the 

Association for Southeastern Integrated 

Planning and VISTAS. Modeling 

projections were provided in January 

2008. While showing the Area would 

attain by no later than five years from 

designation (i.e., by no later than April 

5, 2010), there was not time for the State 

to develop measures that could possibly 

advance the attainment date by one 

year. This would have been particularly 

true for any new control requirements, 

which would have required a legislative 

rulemaking process that can take a year 

or more. Further, as stated above, 

because the Huntington-Ashland Area is 

now attaining the PM2.5 standard, 

Kentucky has satisfied the RACT 

requirement without need for further 

measures. See Memorandum from 

William T. Harnett cited above. In 

addition, as explained earlier, Kentucky 

did provide a RACM/RACT analysis 

that applied for the Huntington-Ashland 

Area. For these reasons, EPA disagrees 

that the Commenter has identified a 

basis on which EPA should disapprove 

Kentucky’s attainment plan. 

Comment 4c: The Commenter opines 

that EPA will not be able to redesignate 

the Huntington-Ashland nonattainment 

area until it conducts a RACM/RACT 

analysis, citing Wall v. EPA, 265 F.3d 

426, 442 (6th Cir. 2001). 

Response 4c: This action does not 

propose to redesignate the HuntingtonAshland Area to attainment. However, 

EPA disagrees with the Commenter’s 

assertion that EPA will not be able to 

redesignate the Huntington-Ashland 

Area until a RACM/RACT analysis is 

conducted. The September 7, 2011, 

determination that the HuntingtonAshland Area attained the 1997 Annual 

PM2.5 NAAQS suspends the obligation 

to meet attainment planning 

requirements, including the RACM/ 

RACT requirements so long as the Area 

continues to attain the 1997 Annual 

PM2.5 NAAQS. See 40 CFR 51.1004(c). 

EPA disagrees with the Commenter’s 

invocation, in the context of this 

rulemaking, of the ruling in Wall v. 

EPA. The Wall court addressed only the 

issue of adoption of RACT for ozone 

nonattainment areas under Part D 

subpart 2 of the Clean Air Act. Thus that 

case addressed a distinct set of statutory 

provisions for a different RACT 

requirement applicable only to ozone 

nonattainment areas. The Wall RACT 

ruling is therefore not applicable or 

pertinent to the PM2.5 RACT provision 

here. For these reasons, EPA disagrees 

that the Commenter has identified a 

basis on which EPA should disapprove 

Kentucky’s attainment plan. 

On-Road Mobile Source Emissions 

Calculations 

Comment 5: The Commenter states 

that EPA recently decided to allow up 

to 15 percent ethanol content in 

gasoline (E15), 76 FR 4662 (Jan. 26, 

2011), which the Commenter believes 

will lead to an increase in NOX and 

VOC emissions from many cars and 

light duty trucks, particularly those with 

pollution control devices not designed 

to deal with E15. The Commenter then 

contends that there is no indication that 

DAQ or EPA accounted for the increase 

in NOX and VOC emissions that will 

result from use of E15. 

Response 5: EPA disagrees with the 

Commenter’s suggestion that the 


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Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21669 

Ethanol 15 (E15) rulemaking cited to by 

the Commenter will result in a 

significant increase in NOX and VOC 

emissions in the Huntington-Ashland 

Area. As a general point of background, 

E15 is not mandated by EPA. Rather, 

EPA granted a partial waiver for 

vehicles model years 2001 and newer, 

light duty vehicles (76 FR 4662) to be 

able to use E15. To receive a waiver 

under CAA section 211(f)(4), a fuel or 

fuel additive manufacturer must 

demonstrate that a new fuel or fuel 

additive will not cause or contribute to 

the failure of engines or vehicles to 

achieve compliance with the emission 

standards to which they have been 

certified over their useful life. Data used 

to act upon the approval of the E15 

partial waiver showed that model year 

2001 and newer vehicles would still 

meet their certified engine standards for 

emissions for both short and long term 

use, and use of E15 would not 

significantly increase the emission from 

these engines. EPA’s partial waiver for 

E15 is based on extensive studies done 

by the Department of Energy, as well as 

the Agency’s engineering assessment to 

determine the effects of exhaust and 

evaporative emissions for the fleet prior 

to the partial waiver. The criteria for 

granting the waiver was not that there 

are no emission impacts of E15, but 

rather that vehicles operating on it 

would not be expected to violate their 

emission standards in-use. 

As discussed in the waiver decision, 

there are expected to be some small 

emission impacts. E15 is expected to 

cause a small immediate emission 

increase in NOX emissions. However, 

due to its lower volatility than the E10 

currently in-use, its use is also expected 

to result in lower evaporative VOC 

emissions. Any other emissions impacts 

related to E15 would be a result of 

misfueling of E15 in model year 2000 

and older vehicles, and recreational or 

small engines. EPA has approved 

regulations dealing specifically with the 

mitigation of misfueling and reducing 

the potential increase in emissions from 

misfueling. 76 FR 44406 (July 25, 2011). 

The partial waivers that EPA has 

granted to E15 do not require that E15 

be made or sold. The waivers merely 

allow fuel or fuel additive 

manufacturers to introduce E15 into 

commerce if they meet the waivers’ 

conditions. Other federal, state and local 

requirements must also be addressed 

before E15 may be sold. The granting of 

the partial waivers is only one of several 

requirements for registration and 

distribution of E15. 

E15 may never be used in Kentucky. 

But even if it is, there is no indication 

that any potential emission impacts 

would significantly alter DAQ’s 

calculation of on-road mobile source 

emissions because of the small and 

opposite direction of emission impacts, 

the limited vehicle fleet which can use 

it, and the measures required to avoid 

mitigating misfueling. For these reasons, 

EPA disagrees that the Commenter has 

identified a basis on which EPA should 

disapprove Kentucky’s attainment plan. 

IV. Final Action 

EPA is approving a revision to the 

Kentucky SIP submitted to EPA by DAQ 

on December 3, 2008, for the purpose of 

demonstrating how the Kentucky 

portion of the Huntington-Ashland Area 

will achieve attainment of the 1997 

Annual PM2.5 NAAQS by no later than 

April 5, 2010. EPA previously 

determined on September 7, 2011, that 

the Huntington-Ashland Area attained 

the 1997 Annual PM2.5 NAAQS by its 

April 2010 attainment date. See 76 FR 

55542, September 7, 2011. EPA has also 

determined that the Area has since 

continued to attain that NAAQS. 

Kentucky’s December 3, 2008, SIP 

revision includes an attainment 

demonstration; RACT and RACM 

analyses; RFP; base-year and 

attainment-year emissions inventories; 

contingency measures; and, for 

transportation conformity purposes, an 

insignificance determination for direct 

PM2.5 and NOX for the mobile source 

contribution to ambient PM2.5 levels for 

the Commonwealth’s portion of the 

Huntington-Ashland Area. After review 

and consideration of the relevant 

information and data, including the 

comments received, EPA has 

determined that Kentucky’s December 3, 

2008, SIP revision is consistent with the 

CAA and EPA’s PM2.5 Implementation 

Rule, and as such EPA is approving this 

SIP revision. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the Commonwealth, and EPA 

notes that it will not impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 


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21670 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 11, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: March 29, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 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 at the end of the 

table for ‘‘Huntington-Ashland 1997 

PM2.5 Attainment Plan’’ 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 Explanation 

*******

Huntington-Ashland 1997 

PM2.5 Attainment Plan.

Boyd County; Portion of 

Lawrence County.

12/03/2008 4/11/2012 [Insert citation of 

publication].

For the 1997 PM2.5 NAAQS. 

[FR Doc. 2012–8561 Filed 4–10–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2011–0086; FRL–9343–3] 

Acibenzolar-S-methyl; Pesticide 

Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes a 

tolerance for residues of acibenzolar-Smethyl in or on berry, low growing, 

subgroup 13–07G. The Interregional 

Research Project No. 4 (IR–4) requested 

the tolerance under the Federal Food, 

Drug, and Cosmetic Act (FFDCA). 

DATES: This regulation is effective April 

11, 2012. Objections and requests for 

hearings must be received on or before 

June 11, 2012, and must be filed in 

accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2011–0086. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Sidney Jackson, Registration Division 

(7505P), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001; telephone number: 

(703) 305–7610; email address: 

jackson.sidney@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to those engaged in the 

following activities: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of EPA’s tolerance 

regulations at 40 CFR part 180 through 

the Government Printing Office’s e-CFR 

site at http://ecfr.gpoaccess.gov/cgi/t/ 

text/text-idx?&c=ecfr&tpl=/ecfrbrowse/ 

Title40/40tab_02.tpl. To access the 

OCSPP test guidelines referenced in this 

document electronically, go to: http:// 

www.epa.gov/ocspp and select ‘‘Test 

Methods and Guidelines.’’ 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 


wreier-aviles on DSK5TPTVN1PROD with RULES