Daily Rules, Proposed Rules, and Notices of the Federal Government
In this action, EPA is proposing to make a determination that Huntington-Ashland Area is continuing to attain the 1997 Annual PM
First, EPA proposes to determine that the Kentucky portion of the Huntington-Ashland Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. In this action, EPA is proposing to approve a request to change the legal designation of Boyd County and a portion of Lawrence County from nonattainment to attainment for the 1997 Annual PM
Second, EPA is proposing to approve Kentucky's 1997 Annual PM
Further, EPA proposes to make the determination that the Huntington-Ashland Area is continuing to attain the 1997 Annual PM
EPA is also providing the public with an update on the status of EPA's adequacy process for the on-road motor vehicle insignificance determination for the Kentucky portion of the Huntington-Ashland Area. Please see section VII of this proposed rulemaking for further explanation of this process and for details.
Today's notice of proposed rulemaking is in response to Kentucky's February 12, 2012, SIP revision, which requests redesignation of the Kentucky portion of the Huntington-Ashland Area to attainment for the 1997 Annual PM
Fine particle pollution can be emitted directly or formed secondarily in the atmosphere. The main precursors of secondary PM
On July 18, 1997, EPA promulgated the first air quality standards for PM
On January 5, 2005, at 70 FR 944, and supplemented on April 14, 2005, at 70 FR 19844, EPA designated the Huntington-Ashland Area as nonattainment for the 1997 PM
All 1997 PM
The 3-year ambient air quality data for 2008-2010 indicated no violations of the 1997 Annual PM
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided the following criteria are met: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines 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; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.
EPA has provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (April 16, 1992, 57 FR 13498, and supplemented on April 28, 1992, 57 FR 18070) and has provided further guidance on processing redesignation requests in the following documents:
1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “Calcagni Memorandum”);
2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and
3. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.
On February 12, 2012, the Commonwealth of Kentucky, through DAQ, requested the redesignation of the Kentucky portion of the Huntington-Ashland Area to attainment for the 1997 Annual PM
As stated above, in accordance with the CAA, EPA proposes in today's action to: (1) Redesignate the Kentucky portion of the Huntington-Ashland Area to attainment for the 1997 Annual PM
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). EPA is proposing to determine that the Huntington-Ashland Area continues to attain the 1997 Annual PM
On September 7, 2011, at 76 FR 55542, EPA finalized a determination that the Huntington-Ashland Area was attaining the 1997 PM
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Kentucky has met all applicable SIP requirements for the Kentucky portion of the Huntington-Ashland Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Kentucky SIP satisfies the criterion that it meet applicable SIP requirements for purposes of redesignation under part D of title I of the CAA (requirements specific to 1997 Annual PM
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a
In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See the Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); the Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and the Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37879, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).
EPA completed rulemaking on a submittal from Kentucky dated August 26, 2008, addressing “infrastructure SIP” elements required under the Clean Air Act (CAA or “the Act”) section 110(a)(2) for the 1997 PM
For purposes of evaluating this redesignation request, the applicable part D, subpart 1 SIP requirements for all nonattainment areas are contained in sections 172(c)(1)-(9) and in section 176. A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of title I (57 FR 13498, April 16, 1992).
The General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992) also discusses the evaluation of these requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard (General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992)).
Because attainment has been reached in the Huntington-Ashland Area, no additional measures are needed to provide for attainment, and the section 172(c)(1) requirements for an attainment demonstration and RACM are no longer considered to be applicable for purposes of redesignation as long as the Area continues to attain the standard.
The RFP plan requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of redesignation because EPA has determined that the Huntington-Ashland Area, which includes the Kentucky portion of the Huntington-Ashland Area, has monitored attainment of the 1997 Annual PM
Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. On April 11, 2012, EPA approved Kentucky's 2002 base-year emissions inventory for the Huntington-Ashland Area as part of the SIP revision submitted by the Commonwealth to provide for attainment of the 1997 PM
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more 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
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes the Kentucky SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.
EPA believes it is reasonable to interpret the conformity SIP requirements
EPA has fully approved the applicable Kentucky SIP for the Kentucky portion of the Huntington-Ashland Area for the 1997 Annual PM
As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of redesignation. In addition, EPA believes that since the part D subpart 1 requirements did not become due prior to submission of the redesignation request, they are also not applicable requirements for purposes of redesignation.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA believes that Kentucky has demonstrated that the observed air quality improvement in the Kentucky portion of the Huntington-Ashland Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state adopted measures.
Fine particulate matter, or PM
State and federal measures enacted in recent years have resulted in permanent emission reductions. Most of these emission reductions are enforceable through regulations. A few non-regulatory measures also result in emission reductions. The federal measures that have been implemented include:
In light of the these unique circumstances and for the reasons explained below, EPA proposes to approve the redesignation request and the related SIP revision for Boyd County and a portion of Lawrence County in Kentucky, including Kentucky's plan for maintaining attainment of the standard in the Kentucky portion of the Huntington-Ashland Area. The air quality modeling analysis conducted for the Transport Rule demonstrates that the Huntington-Ashland Area would be able to attain the 1997 Annual PM
In addition, CAIR remains in place and enforceable until substituted by a “valid” replacement rule. Kentucky's SIP revision lists CAIR as a control measure that became state-effective February 2, 2007, and was approved by EPA on October 4, 2007, for the purpose of reducing SO
Further, in vacating the Transport Rule and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.”
In addition to the consent decrees for power plants, Kentucky provided information in its submittal regarding other consent decrees in and near the Huntington-Ashland Area. In Greenup County, which is adjacent to the Huntington-Ashland PM
The state measures that have been implemented to date and relied upon by Kentucky to demonstrate attainment and/or maintenance include the Commonwealth of Kentucky NO
EPA believes that reductions in emissions of direct PM
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Kentucky portion of the Huntington-Ashland Area to attainment for the 1997 Annual PM
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years
The Huntington-Ashland Area attained the 1997 Annual PM
The emissions inventories are composed of four major types of sources: Point, area, on-road mobile and non-road mobile. The attainment and future year emissions inventories were projected by the Visibility Improvement State and Tribal Association of the Southeast and the Lake Michigan Air Directors Consortium using the 2005 base year inventory methodology as provided in the Appendix D of Kentucky's Submittal. The future year emissions inventories have been estimated using projected rates of growth in population, traffic, economic activity, expected control programs, and other parameters. Non-road mobile emissions estimates were based on the EPA's NONROAD model, with the exception of the railroad locomotives, commercial marine, and aircraft engine. These emissions are estimated by taking activity data, such as landings and takeoffs, and multiplying by an Economic Growth Analysis System emission factor. On-road mobile source emissions were calculated using EPA's MOVES2010 mobile emission factors model. The 2008 SO
Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the Area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni Memorandum, p. 9. Where the emissions inventory method of showing maintenance is used, the purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni Memorandum, pp. 9-10.
As discussed in detail in the subsection below, Kentucky's maintenance plan submission expressly documents that the Area's emissions inventories will remain below the attainment year inventories through 2022. Projected emissions inventory levels in 2022 are well below the attainment year inventory levels, and it is highly improbable that they will suddenly increase and exceed attainment year inventory levels in 2023. In addition, for the reasons set forth below, EPA believes that the Commonwealth's submission, in conjunction with additional supporting information, further demonstrates that the Area will continue to maintain the 1997 Annual PM
The February 12, 2012, final submittal includes a maintenance plan for the Kentucky portion of the Huntington-Ashland Area. This demonstration:
(i) Shows compliance with and maintenance of the annual PM
(ii) Uses 2008 as the attainment year and includes future emission inventory projections for 2015 and 2022.
(iii) Identifies an “out year” at least 10 years after EPA review and potential approval of the maintenance plan. Per 40 CFR part 93, NO
(iv) Provides, as shown in Tables 3, 4, and 5 below, the actual and projected emissions inventories, in tpy, for the Kentucky portion of the Huntington-Ashland Area. Kentucky incorporated the expected CAIR reductions into the projected SO