Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 80253 

direct effect on one or more Indian 

tribes, on the relationship between the 

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 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a determination that this 

action is one of a category of actions 

which do not individually or 

cumulatively have a significant effect on 

the human environment. This rule is 

categorically excluded, under figure 2– 

1, paragraph (34)(g), of the Instruction. 

This regulation establishes one security 

zone. A final ‘‘Environmental Analysis 

Check List’’ and a final ‘‘Categorical 

Exclusion Determination’’ are available 

in the docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine security, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, and 

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. 1226, 1231; 46 U.S.C. 

Chapter 701; 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. Add § 165.T14–215 to read as 

follows: 

§ 165.T14–215 Security Zone; On the 

Waters in Kailua Bay, Oahu, HI. 

(a) Location. The following area, 

within the Honolulu Captain of the Port 

Zone (See 33 CFR 3.70–10), from the 

surface of the water to the ocean floor 

is a temporary security zone: All waters 

in Kailua Bay to the west of a line 

beginning at Kapoho Point and thence 

southwestward at a bearing of 222° 

(true) to the shoreline at Namala Place 

road; as well as the nearby channel from 

its entrance at Kapoho Point to a point 

150-yards to the southwest of the N. 

Kalaheo Avenue Road Bridge. This zone 

extends from the surface of the water to 

the ocean floor. This zone will include 

the navigable waters of the channel 

beginning at point 21°24′56′′ N, 

157°44′58′′ W, then extending to 

21°25′26′′ N, 157°44′21′′ W (Kapoho 

Point) including all the waters to the 

west of a straight line to 21°24′58′′ N, 

157°44′35′′ W (Namala Place), and then 

extending back to the original point 

21°24′56′′ N, 157°44′58′′ W. 

(b) Effective period. This section is 

effective from 6 a.m. HST on December 

21, 2011, through 8 p.m. HST on 

January 7, 2012. 

(c) Regulations. The general 

regulations governing security zones 

contained in 33 CFR 165.33, subpart D, 

apply to the security zone created by 

this temporary final rule. 

(1) All persons are required to comply 

with the general regulations governing 

security zones found in 33 CFR part 

165. 

(2) Entry into or remaining in this 

zone is prohibited unless authorized by 

the Coast Guard Captain of the Port 

Honolulu. 

(3) Persons desiring to transit the 

security zones identified in paragraph 

(a) of this section may contact the 

Captain of the Port at Command Center 

telephone number (808) 842–2600 and 

(808) 842–2601, fax (808) 842–2624 or 

on VHF channel 16 (156.8 Mhz) to seek 

permission to transit the zones. If 

permission is granted, all persons and 

vessels must comply with the 

instructions of the Captain of the Port 

Honolulu or his designated 

representative and proceed at the 

minimum speed necessary to maintain a 

safe course while within the zone. 

(4) The U.S. Coast Guard may be 

assisted in the patrol and enforcement 

of the zones by Federal, State, and local 

agencies. 

(d) Notice of enforcement. The 

Captain of the Port Honolulu will cause 

notice of the enforcement of the security 

zone described in this section to be 

made by verbal broadcasts and written 

notice to mariners and the general 

public. 

(e) Definitions. As used in this 

section, designated representative 

means any Coast Guard commissioned, 

warrant, or petty officer who has been 

authorized by the Captain of the Port 

Honolulu to assist in enforcing the 

security zones described in paragraph 

(a) of this section. 

Dated: December 12, 2011. 

J.M. Nunan, 

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

Honolulu. 

[FR Doc. 2011–33017 Filed 12–22–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2011–0017; EPA–R05– 

OAR–2011–0106; FRL–9610–3] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Ohio and Indiana; 

Redesignation of the Ohio and Indiana 

Portions of the Cincinnati-Hamilton 

1997 Annual Fine Particulate Matter 

Nonattainment Area to Attainment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving, under the 

Clean Air Act (CAA), Ohio’s and 

Indiana’s requests to redesignate their 

respective portions of the CincinnatiHamilton nonattainment area (for Ohio: 

Butler, Clermont, Hamilton, and Warren 


srobinson on DSK4SPTVN1PROD with RULES
80254 Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 

1Fine particulates directly emitted by sources 

and not formed in a secondary manner through 

chemical reactions or other processes in the 

atmosphere. 

2NOX and SO2 are precursors for fine particulates 

through chemical reactions and other related 

processes in the atmosphere. 

Counties, Ohio; for Indiana: a portion of 

Dearborn County) to attainment for the 

1997 annual National Ambient Air 

Quality Standard (NAAQS or standard) 

for fine particulate matter (PM2.5). The 

Ohio Environmental Protection Agency 

(Ohio EPA) submitted its request on 

December 9, 2010, and the Indiana 

Department of Environmental 

Management (IDEM) submitted its 

request on January 25, 2011. EPA’s 

approvals here involve several 

additional related actions. EPA has 

determined that the entire CincinnatiHamilton area has attained the 1997 

annual PM2.5 standard. EPA is 

approving, as revisions to the Ohio and 

Indiana State Implementation Plans 

(SIPs), the states’ plans for maintaining 

the 1997 annual PM2.5 NAAQS through 

2021 in the area. EPA is approving the 

2005 emissions inventories for the Ohio 

and Indiana portions of the CincinnatiHamilton area as meeting the 

comprehensive emissions inventory 

requirement of the CAA. Finally, EPA 

finds adequate and is approving Ohio 

and Indiana’s Nitrogen Oxides (NOX) 

and PM2.5 Motor Vehicle Emission 

Budgets (MVEBs) for 2015 and 2021 for 

the Cincinnati-Hamilton area. 

DATES: Effective Date: This rule will be 

effective December 23, 2011. 

ADDRESSES: EPA has established two 

dockets for this action under Docket 

Identification EPA–R05–OAR–2011– 

0017 and EPA–R05–OAR–2011–0106, 

containing identical material but 

nominally addressing Ohio’s and 

Indiana’s submittals, respectively. All 

documents in these dockets are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. This facility is 

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

Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Carolyn Persoon at (312) 

353–8290 before visiting the Region 5 

office. 

FOR FURTHER INFORMATION CONTACT: 

Carolyn Persoon, Environmental 

Engineer, Control Strategies Section, Air 

Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

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

persoon.carolyn@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background for the actions? 

II. What are the actions EPA is taking? 

III. What is EPA’s response to comments? 

IV. Why is EPA taking these actions? 

V. Final Action 

VII. Statutory and Executive Order Reviews 

I. What is the background for the 

actions? 

The Ohio EPA submitted its request 

on December 9, 2010, and IDEM 

submitted its request on January 25, 

2011, to redesignate their respective 

portions of the Cincinnati-Hamilton 

nonattainment area to attainment for the 

1997 annual PM2.5 NAAQS, and for EPA 

approval of both states’ SIP revisions 

containing maintenance plans for the 

area. In an action published on October 

19, 2011 (76 FR 64825), EPA proposed 

approval of Ohio and Indiana’s plans for 

maintaining the 1997 annual PM2.5

NAAQS, including the emissions 

inventories submitted pursuant to CAA 

section 172(c)(3); and the NOX and 

PM2.5 MVEBs for the Ohio and Indiana 

portions of the Cincinnati-Hamilton area 

as contained in the maintenance plan. 

Additional background for today’s 

action is set forth in EPA’s October 19, 

2011, notice of direct final rulemaking, 

which EPA withdrew on December 6, 

2011, following receipt of adverse 

comments. 

II. What are the actions EPA is taking? 

EPA has determined that the entire 

Cincinnati-Hamilton area is attaining 

the 1997 annual PM2.5 standard (76 FR 

60373) and that the Ohio and Indiana 

portions of the area have met the 

requirements for redesignation under 

section 107(d)(3)(E) of the CAA. Thus, 

EPA is approving the requests from the 

states of Ohio and Indiana to change the 

legal designation of their portions of the 

Cincinnati-Hamilton area from 

nonattainment to attainment for the 

1997 annual PM2.5 NAAQS. This action 

does not address the Kentucky portion 

of the Cincinnati-Hamilton area. EPA is 

also taking several additional actions 

related to Ohio’s and Indiana’s PM2.5

redesignation requests, as discussed 

below. 

EPA is approving Indiana’s and 

Ohio’s PM2.5 maintenance plans for the 

Cincinnati-Hamilton area as revisions to 

the Ohio and Indiana SIP (such 

approval being one of the CAA criteria 

for redesignation to attainment status). 

The maintenance plans are designed to 

keep the Cincinnati-Hamilton area in 

attainment of the 1997 annual PM2.5

NAAQS through 2021. 

EPA is approving 2005 emissions 

inventories for primary PM2.5,1 NOX, 

and sulfur dioxide (SO2),2 documented 

in Ohio’s and Indiana’s PM2.5

redesignation request submittals. These 

emissions inventories satisfy the 

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

CAA for a comprehensive, current 

emission inventory. 

Finally, EPA finds adequate and is 

approving Ohio’s and Indiana’s 2015 

and 2021 primary PM2.5 and NOX

MVEBs for the Cincinnati-Hamilton 

area. These MVEBs will be used in 

future transportation conformity 

analyses for the area. Further discussion 

of the basis for these actions is provided 

below. 

III. What is EPA’s response to 

comments? 

EPA received two sets of comments 

submitted by Robert Ukeiley on behalf 

of Sierra Club: The first set, dated 

October 19, 2011, and the second set 

dated November 18, 2011. A summary 

of the comments and EPA’s responses 

are provided below. 

Comment 1a: The comment contends 

that it is inappropriate for EPA to 

redesignate these areas to attainment at 

this time, claiming that EPA is illegally 

delaying issuing a final rule to revise the 

annual PM2.5 NAAQS, and that EPA’s 

Clean Air Science Advisory Committee 

(CASAC) has recommended adoption of 

a lower NAAQS. The Commenter 

alleges that EPA is removing the 

protection of a scientifically inadequate 

NAAQS, while not adopting a more 

protective standard. 

Response 1a: This redesignation does 

not remove the protection of the 1997 

annual PM2.5 NAAQS. This 

redesignation does not concern the new 

NAAQS, addresses only the 1997 

annual PM2.5 NAAQS, and has no 

impact on EPA’s actions with respect to 

a revised NAAQS. 

Comment 1b: The Commenter claims 

that ‘‘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 NAAQS and 

the 1997 and 2008 75 parts per billion 

ozone NAAQS.’’ In subsequent 

comments, the Commenter also states, 


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Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 80255 

3EPA 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, the 1-hour and 

8-hour ozone NAAQS, and that this Area has never 

been designated nonattainment for 2006 24-hour 

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

hour SO2 NAAQS. 

‘‘EPA has not conducted an adequate 

analysis of the effect redesignation will 

have on other National Ambient Air 

Quality Standards’’. 

Response 1b: Section 110(l) provides 

in part: ‘‘the Administrator shall not 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * *, or any other applicable 

requirement of this chapter.’’ As a 

general matter, EPA must and does 

consider section 110(l) requirements for 

every SIP revision, including whether 

the revision would ‘‘interfere with’’ any 

applicable requirement. 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). Neither Ohio’s 

nor Indiana’s redesignation request and 

maintenance plan for the 1997 annual 

PM2.5 NAAQS revises or removes any 

existing emissions limit for any 

NAAQS, nor does it alter any existing 

control requirements. On that basis, 

EPA concludes that the redesignations 

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 these 

redesignations would have any impact 

on the Area’s ability to comply with on 

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

hour NO2 NAAQS, the 1-hour SO2

NAAQS or the 1997 8-hour ozone 

NAAQS and 2008 75 parts per billion 

ozone NAAQS. In fact, the maintenance 

plans provided with both states’ 

submissions demonstrate a decline in 

the direct PM2.5 and PM2.5 precursor 

emissions over the timeframe of the 

initial maintenance period. As a result, 

the redesignations do not relax any 

existing rules or limits, nor will the 

redesignation alter the status quo air 

quality.3 The Commenter has not 

explained why the redesignation might 

interfere with attainment of any 

standard or with satisfaction of any 

other requirement, and EPA finds no 

basis under section 110(l) for EPA to 

disapprove the SIP revision at issue or 

to redesignate the area as requested. 

Comment 1c: The Commenter 

elaborates on the first comment in the 

second set of comments submitted, 

claiming ‘‘For example, but this is only 

one example, as explained below the 

Ohio and Indiana SIPs do not currently 

have Reasonable Available Control 

Technology (RACT) standards in place 

for PM2.5. Implementing these RACT 

standards would have reduced NOX and 

SO2 which would have a co-benefit of 

helping with the 2006 24-hour PM2.5

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

hour SO2 NAAQS, and the 1997 and 

2008 ozone NAAQS as well as visibility. 

EPA needs to demonstrate that 

removing this co-benefit will not 

interfere with attainment, reasonable 

further progress and any other 

applicable requirement.’’ 

Response 1c: This example is 

fallacious, for reason given in response 

6(b) below—no RACT is required 

because the area is attaining the 

standard. 

Comment 2a: The Commenter argues 

that EPA has not established that any of 

the emission reductions did not come 

from the NOX SIP Call, CAIR (the Clean 

Air Interstate Rule), and CSAPR (the 

Cross-State Air Pollution Rule, also 

known as the Transport Rule). 

Response 2a: EPA disagrees with the 

Commenter’s assertion. EPA and the 

states have shown that emission 

reductions arose both from the transport 

regulations listed above and from other 

regulatory requirements. The 

Cincinnati-Hamilton area contains 

various sources of emissions (point 

source, area, and mobile), and emission 

reductions from the nonattainment year 

of 2005 to the attainment year of 2008 

are attributed to many permanent and 

enforceable measures. The NOX SIP 

Call, CAIR, and CSAPR are all measures 

that have resulted in emission 

reductions from point source Electric 

Generating Units (EGUs). In addition, 

emission reduction from mobile 

sources, which account for 53% of NOX

emissions and 58% of direct PM2.5 for 

the nonattainment year of 2005, are 

attributed to permanent and enforceable 

engine and fuel standards. Due to these 

permanent and enforceable measures, 

mobile sources reduced their emissions 

by 9,367 tons of NOX, and 792 tons of 

direct PM2.5 between the years of 2005 

to 2008. 

Comment 2b. The Commenter asserts 

that emission reductions pursuant to 

NOX SIP Call, CAIR and CSAPR 

programs are not permanent and 

enforceable because these programs are 

cap and trade programs. The 

Commenter further opines that any 

source which reduced its actual 

emissions pursuant to one of these 

programs could at any time in the future 

choose to increase their emissions by 

purchasing emission credits. 

Response 2b. 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 Ohio and Indiana 

SIPs, 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. This 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 can’t 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 

Ohio and Indiana portions of the 

Cincinnati-Hamilton 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 Cincinnati-Hamilton 

area to be permanent and enforceable. 


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80256 Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 

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, 59529/1, 

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 Cincinnati 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 but near the 

Cincinnati-Hamilton area. In accordance 

with 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. 

Further, Ohio’s and Indiana’s 

maintenance plans provide 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. 76 FR 64825. 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 asserts 

that ‘‘Emissions calculations for on-road 

mobile sources fail to consider 15% 

ethanol in gasoline.’’ 

Response 3: Ethanol 15 (E15) is not 

mandated by EPA. 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). 

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. 

Since E15 may never be used in Ohio 

and Indiana, and even if it is, due to the 

small and opposite direction of 

emission impacts of E15, the limited 

vehicle fleet which can use it, and the 

measures required to avoid mitigating 

misfueling, EPA believes that any 

potential emission impacts of E15 will 

be less than the maintenance plan safety 

margin by which Ohio and Indiana 

show maintenance. 

Comment 4a: The Commenter 

contends that the ‘‘Ohio and Indiana 

maintenance plans will not provide for 

maintenance for ten years after the 

redesignation,’’ based on the 

Commenter’s belief that EPA will be 

unable to finalize its approval of the 

requests for redesignation by the end of 

2011. 

Response 4a: Since EPA has 

promulgated its approvals of the 

redesignation requests of Ohio and 

Indiana by the end of 2011, and the 

maintenance plans provide for 

maintenance through the end of 2021, it 

is evident that the Commenter’s concern 

was misplaced, and that the 

maintenance plans do provide for a tenyear maintenance period in accordance 

with CAA section 175A. 

Commment 4b: The Commenter 

asserts that the Ohio and Indiana 

maintenance plans are deficient in part 

because the contingency measures they 

include provide for their 

implementation within 18 months of a 

monitored violation, if one occurs. The 

Commenter claims that as a 

consequence, the ‘‘contingency 

measures do not provide for prompt 

correction of violations.’’ 

Response 4b: The Commenter 

overlooks the provisions of the CAA 

applicable to contingency measures. 

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

plan revision submitted under this 

section shall contain such contingency 

provisions as the Administrator deems 

necessary to assure that the state will 

promptly correct any violation of the 

standard which occurs after the 

redesignation of the area as an 

attainment area.’’ (emphasis added). 

Thus Congress gave EPA discretion to 

evaluate and determine the contingency 

measures EPA ‘‘deems necessary’’ to 

assure that the state will promptly 

correct any subsequent violation. EPA 

has long exercised this discretion in its 

rulemakings on section 175A 

contingency measures in redesignation 

maintenance plans, allowing as 

contingency measures commitments to 

adopt and implement in lieu of fully 


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Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 80257 

adopted contingency measures, and 

finding that implementation within 18 

months of a violation complies with the 

requirements of section 175A. See 

recent redesignations, e.g. Indianapolis 

PM2.5 annual standard (76 FR 59512), 

Lake and Porter 8-hour ozone standard 

(75 FR 12090), and Northwest Indiana 

PM2.5 annual standard (76 FR 59600). 

Section 175A does not establish any 

deadlines for implementation of 

contingency measures after 

redesignation to attainment. It also 

provides far more latitude than does 

section 172(c)(9), which applies to a 

different set of contingency measures 

applicable to nonattainment areas. 

Section 172(c)(9) contingency measures 

must ‘‘take effect * * * without further 

action by the State or [EPA].’’ By 

contrast, section 175A confers upon 

EPA the discretion to determine what 

constitutes adequate assurance, and 

thus permits EPA to take into account 

the need of a state to assess, adopt 

implement contingency measures if and 

when a violation occurs after an area’s 

redesignation to attainment. Therefore, 

in accordance with the discretion 

accorded it by statute, EPA may allow 

reasonable time for states to analyze 

data and address the causes and 

appropriate means of remedying a 

violation. In assessing what ‘‘promptly’’ 

means in this context, EPA also may 

take into account time for adopting and 

implementation of the appropriate 

measure. In the case of the CincinnatiHamilton area, EPA reasonably 

concluded that, 18 months constitutes a 

timeline consistent with prompt 

correction of a potential monitored 

violation. This timeframe also conforms 

with EPA’s many prior rulemakings on 

acceptable schedules for implementing 

section 175A contingency measures. 

Comment 4c: The Commenter asserts 

that the contingency measures 

contained in the maintenance plans are 

‘‘too vague’’. 

Response 4c: As discussed above in 

response to comment 4(b), the CAA 

does not specify the requisite nature, 

scope, specificity, or number of 

contingency measures to be included in 

a maintenance plan under section 175A. 

It is for EPA to determine whether the 

state has given adequate assurance that 

it can promptly correct a violation. Both 

Ohio and Indiana have submitted 

contingency measures that EPA deems 

adequate. They have committed to 

remedy a future violation, and have 

included measures to address potential 

violations from a range of sources and 

a timeline for promptly completing 

adoption and implementation. The 

states have identified measures that are 

sufficiently specific but which allow for 

latitude in potential scope. This will 

enable the states to address a range of 

potential sources and differing degrees 

and types of violations. EPA believes 

that the contingency measures set forth 

in the submittal, combined with the 

states’ commitment to an expeditious 

timeline and process for 

implementation, provide assurance that 

the states will promptly correct a future 

potential violation. Given the 

uncertainty as to timing, degree and 

nature of any future violation, EPA 

believes that the contingency measures 

set forth adequately balance the need for 

flexibility in the scope and type of 

measure to be implemented with the 

need for expeditious state action. 

Comment 5: The Commenter asserts 

that the Ohio and Indiana Startup, 

Shutdown, Malfunction, and/or 

Maintenance provisions (SSM) are 

inconsistent with the Act and EPA 

policy because they provide that excess 

emissions are not violations. The 

Commenter also claims that the 

regulation is ambiguous because it lacks 

procedural specifications indicating 

whether it is to be interpreted as a 

‘‘qualified exemption’’ or an 

‘‘affirmative defense.’’ In the second set 

of comments received, the Commenter 

asserts, ‘‘The Ohio and Indiana SIPs 

contain impermissible provisions 

governing startup, shutdown, 

malfunctions and scheduled 

maintenance.’’ 

Response 5: 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 criteria, 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 section 

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 Ohio and Indiana 

portions of the 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 submittals. 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 requests. 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; Wall 

v. EPA, 265 F.3d 426 (6th Cir. 2001); 68 

FR 25413, 25426 (May 12, 2003). 

Additionally, the comment inserted 

the word ‘‘adequate’’ into the phrase 

‘‘fully approved SIP’’ (which is the 

language of Section 107(d)(3)(E)(ii)), 

such that the Commenter stated that 

Ohio and Indiana must have a ‘‘fully 

approved adequate SIP.’’ Clearly the 

word ‘‘adequate’’ is not included in 

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

inclusion substantially alters the plain 

text of the CAA. Furthermore, while the 

Commenter opines that the cited-to 

provisions of the Ohio and Indiana rules 

result in a ‘‘regulatory structure that is 

inconsistent with the fundamental 

requirement that all excess emissions be 

considered violations,’’ Commenter 

does not link this concern with 

deficiencies in Ohio’s and Indiana’s 

redesignation submittals for the Ohio 

and Indiana portions of the CincinnatiHamilton area. There is no information 

in the comment indicating that Ohio or 

Indiana has excused violations and that 

such actions result in Ohio or Indiana 

failing to meet a requirement for 

redesignation. Furthermore, there is no 

information in the comment indicating 

that even if Ohio or Indiana were to 

excuse such violations that such 

violations would not be actionable by 

EPA or citizens. For Indiana’s SIP, 326 

IAC 1–6–4 was formerly codified as 325 

IAC 1.1–5. When EPA approved that 

rule in 1984, it noted Indiana’s 

clarification that any malfunction 

causing excess emissions would be 

treated as a SIP violation; and that the 

rule’s criteria would be used in 

determining an appropriate enforcement 

response. (February 14, 1984, 49 FR 

5618). This constitutes an ‘‘enforcement 

discretion’’ approach, acceptable under 

EPA’s applicable policies. EPA also 

noted that it had independent authority 

under Section 113 of the CAA to 

determine whether enforcement 

discretion was an appropriate response 

in a particular case. 

On June 30, 2011, Sierra Club filed a 

‘‘Petition to Find Inadequate and 

Correct Several State Implementation 

Plans under Section 110 of the Clean 


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80258 Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 

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). At this time, 

with regards to the redesignation of the 

Ohio and Indiana portion of the 

Cincinnati-Hamilton area, EPA does not 

agree that the Commenter has raised a 

basis on which EPA could disapprove 

the redesignation. Ohio and Indiana 

have fully approved SIPs consistent 

with applicable requirements. 

Comment 6a: The Commenter asserts 

that the Ohio SIP does not meet the 

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

because EPA has disapproved Ohio’s 

‘‘good neighbor provision’’ Section 

110(a)(2)D)(i)(I). 

Response 6a: The requirements 

applicable for purposes of redesignation 

are those which at a minimum are 

linked to the attainment status of the 

area being redesignated. As noted in the 

proposal (76 FR 64825), all areas, 

regardless of their designation as 

attainment or nonattainment, are subject 

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

of this provision is not connected with 

nonattainment plan submissions or with 

the attainment status of an area. A 

nonattainment area remains subject to 

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

after it has been redesignated to 

attainment. Therefore EPA has long 

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

requirements as not applicable 

requirement for purposes of 

redesignation. EPA has leeway to 

determine what constitutes an 

‘‘applicable’’ requirement under section 

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

entitled to deference. Sierra Club v. 

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

EPA has consistently interpreted only 

those section 110 requirements that are 

linked with a particular area’s 

designation as the requirements to be 

considered in evaluating a redesignation 

request. See, e.g., EPA’s positions on the 

applicability of conformity, oxygenated 

fuels requirements for purposes of 

redesignations. See Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174–53176, 

October 10, 1996, and 62 FR 24826, May 

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

final rulemaking (61 FR 20458, May 7, 

1996); and Tampa, Florida, final 

rulemaking (60 FR 62748, December 7, 

1995). See also the discussion on this 

issue in the Cincinnati, Ohio 1-hour 

ozone redesignation (65 FR 37890, June 

19, 2000), and in the Pittsburgh, 

Pennsylvania 1-hour ozone 

redesignation (66 FR 50399, October 19, 

2001). 

Comment 6b: The Commenter 

contends that the Ohio and Indiana SIPs 

do not have approved RACT rules. 

Response 6b: EPA interprets RACT for 

PM2.5 as linked to attainment needs of 

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

standard, it clearly does not need 

further measures to reach attainment. 

Therefore, under EPA’s interpretation of 

the RACT requirement, as it applies to 

PM2.5, Ohio and Indiana have satisfied 

the RACT requirement without need for 

further measures. On May 22, 2008, EPA 

issued a memorandum that clarified its 

position with respect to the relationship 

between PM2.5 attainment and RACT 

requirements. 

‘‘Memorandum from William T. 

Harnett, Director, Air Quality Policy 

Division to Regional Air Division 

Directors, PM2.5 Clean Data Policy 

Clarification.’’ This memorandum 

explained that 40 CFR 51.1004(c) 

provides that a determination that an 

area that has attained the PM2.5 standard 

suspends the requirements to submit 

RACT and RACM requirements. 

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 required only insofar as it is 

necessary to advance attainment. See 

also section 51.1010(b). The Commenter 

claims that Wall v. EPA, 265 F.3d 426, 

442 (6th Cir. 2001), establishes that fully 

adopted RACT is nonetheless required. 

The Wall case, however, is not 

applicable to RACT requirements for the 

PM2.5 standard. The Wall decision 

addressed entirely different statutory 

provisions for ozone RACT under CAA 

Part D subpart 2, which do not apply or 

pertain to the subpart 1 RACT 

requirements for PM2.5. 

Comment 6c: The Commenter asserts 

that the Ohio and Indiana SIPs lack 

PM2.5 nonattainment New Source 

Review (NSR) programs. The 

Commenter also contends that the 

prevention of significant deterioration 

(PSD) program is part of the SIP that an 

area being redesignated needs to have to 

ensure that the area will stay in 

attainment. The Commenter takes the 

position that EPA cannot approve the 

redesignation requests because Ohio 

and Indiana do not have adequate PM2.5

PSD programs. The Commenter bases its 

conclusion that Ohio and Indiana’s PSD 

programs are inadequate for PM2.5 on 

the contention that the programs do not 

contain significant emission rates for 

PM2.5 and its precursors, and that the 

programs do not include PM2.5

increments. 

Response 6c: Both Ohio and Indiana 

have approved nonattainment NSR 

programs in their SIPs. EPA approved 

Ohio’s current NSR program on January 

10, 2003 (68 FR 1366). EPA approved 

Indiana’s current NSR program on 

October 7, 1994 (59 FR 51108). 

Nonetheless, since PSD requirements 

will apply after redesignation, the area 

need not have a fully-approved NSR 

program for purposes of redesignation, 

provided that the area demonstrates 

maintenance of the NAAQS without 

part D NSR. A detailed rationale for this 

view is described in a memorandum 

from Mary Nichols, Assistant 

Administrator for Air and Radiation, 

dated October 14, 1994, entitled, ‘‘Part 

D New Source Review Requirements for 

Areas Requesting Redesignation to 

Attainment.’’ The memo states, ‘‘[EPA] 

* * * is establishing a new policy 

under which nonattainment areas may 

be redesignated to attainment 

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

the program is not relied upon for 

maintenance.’’ In this case, neither Ohio 

nor Indiana has relied upon NSR to 

maintain the standard. 

Ohio and Indiana also each have an 

EPA approved PSD program that 

includes PM2.5 as a NSR pollutant. 

While the Commenter is correct in 

stating that both Ohio and Indiana’s 

approved PSD SIPs do not include 

specific significant emissions rates for 

PM2.5 or its precursors, the Ohio and 

Indiana SIPs do include a provision that 

sets ‘‘any emission rate’’ as the 

significant emission rate for any 

regulated NSR pollutant that does not 

have a specific significant emission rate 

listed in the state rule. Under Indiana’s 

rule, a regulated NSR pollutant includes 

a pollutant, for which a NAAQS has 

been promulgated, and constituents or 

precursors for the pollutants identified 

as a NAAQS by EPA. 

Therefore, any increase in direct PM2.5

emissions or emissions of its precursors 

(SO2 and NOX) will trigger the 

requirements to obtain a PSD permit; to 

perform an air quality analysis that 

demonstrates that the proposed source 

or modification will not cause or 

contribute to a violation of the PM2.5

NAAQS; and to apply best available 

control technology (BACT) for direct 

PM2.5 and/or the pertinent precursor. 

In addition, the fact that Ohio’s and 

Indiana’s approved PSD SIPs lack PM2.5

increments does not prevent the 

program from addressing and helping to 


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Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 80259 

4EPA’s redesignation action here addresses only 

the 1997 annual PM2.5 standard, and does not 

address the 24-hour PM2.5 standard. 

assure maintenance of the PM2.5

standard in accordance with CAA 

section 175A. A PSD increment is the 

maximum increase in concentration that 

is allowed to occur above a baseline 

concentration for a pollutant. Even in 

the absence of an approved PSD 

increment, the approved PSD program 

prohibits air quality from deteriorating 

beyond the concentration allowed by 

the applicable NAAQS. Thus Ohio’s and 

Indiana’s approved PSD programs are 

adequate for purposes of assuring 

maintenance of the 1997 annual PM2.5

standard as required by section 175A. 

EPA notes that Indiana has adopted 

emergency rules containing significant 

emissions rates of 10 tons per year for 

direct PM2.5 and 40 tons per year for 

sulfur dioxide and nitrogen oxide (as 

PM2.5 precursors). The emergency rules 

also contain maximum allowable PM2.5

increments of 4 micrograms per cubic 

meter (mg/m3) for the annual standard 

and 9 mg/m3 for the 24-hour standard.4

The state is currently implementing the 

emergency rules at the state level and is 

in the process of adopting permanent 

rules for submission to EPA. 

Irrespective of the state’s emergency 

rules, EPA concludes that the features of 

Indiana’s currently approved PSD 

program cited by the Commenter do not 

detract from the program’s adequacy for 

purposes of maintenance of the standard 

and redesignation of the area. As it 

stands, the currently approved PSD 

program is sufficient for the purposes of 

maintaining the 1997 annual PM2.5

NAAQS in the Cincinnati-Hamilton 

area. 

IV. Why is EPA taking these actions? 

EPA has determined that the 

Cincinnati-Hamilton area has attained 

the 1997 annual PM2.5 NAAQS. EPA has 

also determined that all other criteria 

have been met for the redesignation of 

the Ohio and Indiana portions of the 

Cincinnati-Hamilton area from 

nonattainment to attainment of the 1997 

annual PM2.5 NAAQS. See CAA section 

107(d)(3)(E). The detailed rationale for 

EPA’s findings and actions is set forth 

in the proposed rulemaking of October 

19, 2011 (76 FR 64825) and in this final 

rulemaking. 

V. Final Action 

EPA has previously made the 

determination that the CincinnatiHamilton area has attained the 1997 

annual PM2.5 standard (76 FR 60373). 

EPA is determining that the area 

continues to attain the standard and that 

the Ohio and Indiana portions of the 

area meet the requirements for 

redesignation to attainment of that 

standard under section 107(d)(3)(E) of 

the CAA. Thus, EPA is approving the 

requests from Ohio and Indiana to 

change the legal designation of their 

portions of the Cincinnati-Hamilton area 

from nonattainment to attainment for 

the 1997 annual PM2.5 NAAQS. EPA is 

approving Ohio’s and Indiana’s 1997 

annual PM2.5 maintenance plans for the 

Cincinnati-Hamilton area as revisions to 

the respective SIPs because the plans 

meet the requirements of section 175A 

of the CAA. EPA is approving the 2005 

emissions inventories for primary PM2.5, 

NOX, and SO2, documented in Indiana’s 

and Ohio’s December 9, 2010, and 

January 25, 2011, submittals as 

satisfying the requirement in section 

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

comprehensive, current emission 

inventory. Finally, EPA finds adequate 

and is approving 2015 and 2021 primary 

PM2.5 and NOX MVEBs submitted from 

each state for the Ohio and Indiana 

portions of the Cincinnati-Hamilton 

area. These MVEBs will be used in 

future transportation conformity 

analyses for the area after the effective 

date for the adequacy finding and 

approval. 

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 Ohio 

and Indiana of various requirements for 

the Ohio and Indiana portions of the 

Cincinnati-Hamilton 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 geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

required by state law. A redesignation to 

attainment does not in and of itself 

impose any new requirements, but 

rather results in the application of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For these 

reasons, these actions: 

• Are not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

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

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Are not significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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


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80260 Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 

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 21, 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, 

Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks. 

Dated: December 14, 2011. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR parts 52 and 81 are amended 

as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart P—Indiana 

■ 2. Section 52.776 is amended by 

adding paragraphs (v)(3) and (w)(3) to 

read as follows: 

§ 52.776 Control strategy: Particulate 

matter. 

* * * * * 

(v) * * * 

(3) The Indiana portion of the 

Cincinnati-Hamilton nonattainment area 

(Lawrenceburg Township in Dearborn 

County), as submitted on December 9, 

2010. The maintenance plan establishes 

2015 motor vehicle emissions budgets 

for the Ohio and Indiana portions of the 

Cincinnati-Hamilton area of 1,678.60 

tpy for primary PM2.5 and 35,723.83 tpy 

for NOX and 2021 motor vehicle 

emissions budgets of 1,241.19 tpy for 

primary PM2.5 and 21,747.71 tpy for 

NOX. 

(w) * * * 

(3) Indiana’s 2005 NOx, directly 

emitted PM2.5, and SO2 emissions 

inventory satisfies the emission 

inventory requirements of section 

172(c)(3) of the Clean Air Act for the 

Cincinnati-Hamilton area. 

Subpart KK—Ohio 

■ 3. Section 52.1880 is amended by 

adding paragraphs (p) and (q) to read as 

follows: 

§ 52.1880 Control strategy: Particulate 

matter. 

* * * * * 

(p) Approval—The 1997 annual PM2.5

maintenance plans for the following 

areas have been approved: 

(1) The Ohio portion of the 

Cincinnati-Hamilton nonattainment area 

(Butler, Clermont, Hamilton, and 

Warren Counties), as submitted on 

January 25, 2011. The maintenance plan 

establishes 2015 motor vehicle 

emissions budgets for the Ohio and 

Indiana portions of the CincinnatiHamilton area of 1,678.60 tpy for 

primary PM2.5 and 35,723.83 tpy for 

NOX and 2021 motor vehicle emissions 

budgets of 1,241.19 tpy for primary 

PM2.5 and 21,747.71 tpy for NOX. 

(2) [Reserved] 

(q) Approval—The 1997 annual PM2.5

comprehensive emissions inventories 

for the following areas have been 

approved: 

(1) Ohio’s 2005 NOx, directly emitted 

PM2.5, and SO2 emissions inventory 

satisfies the emission inventory 

requirements of section 172(c)(3) for the 

Cincinnati-Hamilton area. 

(2) [Reserved] 

PART 81—[AMENDED] 

■ 4. The authority citation for part 81 

continues to read as follows: 

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

■ 5. Section 81.315 is amended by 

revising the entry for CincinnatiHamilton in the table entitled ‘‘Indiana 

PM2.5 (Annual NAAQS)’’ to read as 

follows: 

§ 81.315 Indiana. 

* * * * * 

INDIANA PM2.5

[Annual NAAQS] 

Designated area 

Designation a

Date 1 Type 

* * * * * * * 

Cincinnati-Hamilton, IN: Dearborn County (part) Lawrenceburg Township ................................................................ 12/23/2011 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. 


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Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 80261 

* * * * * 

■ 6. Section 81.336 is amended by 

revising the entry for CincinnatiHamilton, OH in the table entitled 

‘‘Ohio PM2.5 (Annual NAAQS)’’ to read 

as follows: 

§ 81.336 Ohio. 

* * * * * 

OHIO PM2.5

[Annual NAAQS] 

Designated area 

Designation a

Date 1 Type 

* * * * * * * 

Cincinnati-Hamilton, Ohio: 

Butler County ...............................................................................................................................................................

Clermont County ..........................................................................................................................................................

Hamilton County ..........................................................................................................................................................

Warren County .............................................................................................................................................................

12/23/2011 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. 2011–32818 Filed 12–22–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2008–0080; FRL–9610–2] 

RIN 2060–AR16 

National Emission Standards for 

Hazardous Air Pollutants: Area Source 

Standards for Prepared Feeds 

Manufacturing; Amendments 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The EPA is taking direct final 

action to revise certain provisions of the 

area source national emission standards 

for hazardous air pollutants (NESHAP) 

for prepared feeds manufacturing 

published on January 5, 2010 (final 

rule). These revisions will clarify the 

regulatory requirements for this source 

category and ensure that those 

requirements are consistent with the 

record. The revisions address the 

generally available control technology 

(GACT) requirements for pelleting 

processes at large, existing prepared 

feeds manufacturing facilities, 

specifically removal of the cyclone 95- 

percent design efficiency requirement, 

as well as associated requirements for 

compliance demonstration, monitoring, 

reporting, and recordkeeping; 

clarification of the requirement that 

doors be kept closed in areas where 

materials containing chromium and 

manganese are stored, used, or handled; 

and clarification of the requirement to 

install a device at the point of bulk 

loadout to minimize emissions. These 

amendments are not expected to result 

in increased emissions or in the 

imposition of costs beyond those 

described in the January 5, 2010, final 

rule. 

DATES: This direct final rule is effective 

on February 21, 2012 without further 

notice, unless the EPA receives adverse 

comment by January 23, 2012. If we 

receive adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that this rule, or relevant provisions of 

this rule, will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2008–0080, by one of the 

following methods: 

• Federal eRulemaking Portal: 

www.regulations.gov: Follow the 

instructions for submitting comments. 

• Agency Web site: www.epa.gov/oar/ 

docket.html. Follow the instructions for 

submitting comments on the EPA Air 

and Radiation Docket Web site. 

• Email: a-and-r-Docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2008–0080 in the subject line of the 

message. 

• Fax: Send comments to (202) 566– 

9744, Attention Docket ID No. EPA– 

HQ–OAR–2008–0080. 

• Mail: Area Source NESHAP for 

Prepared Feeds Manufacturing Docket, 

Environmental Protection Agency, Air 

and Radiation Docket and Information 

Center, Mailcode: 2822T, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460. Please include a total of two 

copies. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West, Room 

3334, 1301 Constitution Avenue NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2008– 

0080. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the EPA may not be able to consider 

your comment. Electronic files should 

avoid the use of special characters, any 

form of encryption, and be free of any 

defects or viruses. For additional 

instructions on submitting comments, 


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