Approval and Promulgation of Air Quality Implementation Plans; Ohio, Kentucky, and Indiana; Cincinnati-Hamilton Nonattainment Area; Determination of Attainment of the 1997 Annual Fine Particulate Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to make two determinations regarding the tri-state Cincinnati-Hamilton (Ohio, Kentucky, and Indiana) fine particulate matter (PM_2.5) nonattainment area (hereafter referred to as “the Cincinnati Area” or “the Area”). First, EPA is proposing to determine that the Area has attained the 1997 annual average PM_2.5 National Ambient Air Quality Standard (NAAQS). This proposed determination of attainment is based upon complete, quality-assured and certified ambient air monitoring data for the 2007-2009 period showing that the Area has monitored attainment of the 1997 annual PM_2.5 NAAQS. If EPA finalizes this proposed determination of attainment, the requirements for the Area to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures, and other planning State Implementation Plan (SIP) revisions related to attainment of the standard shall be suspended for so long as the Area continues to attain the annual PM_2.5 NAAQS. Second, EPA is also proposing to determine, based on quality-assured and certified monitoring data for the 2007-2009 monitoring period, that the Area has attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010.

DATES:

Comments must be received on or before July 5, 2011.

ADDRESSES:

Submit your general comments and your comments specifically regarding the Kentucky portion of the Cincinnati Area, identified by Docket ID No. EPA-R04-OAR-2010-0719, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: benjamin.lynorae@epa.gov.

3. Fax: (404) 562-9040.

4. Mail: EPA-R04-OAR-2010-0719, 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.

5. Hand Delivery: Lynorae Benjamin, Chief, 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. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

Submit your comments regarding the Ohio and Indiana portions of the Cincinnati Area, identified by Docket ID No. EPA-R04-OAR-2010-0719, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: aburano.douglas@epa.gov.

3. Fax: 312-353-6960.

4. Mail: Douglas Aburano, Chief, Control Strategies Section, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507.

5. Hand Delivery: Douglas Aburano, Chief, Control Strategies Section, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2010-0719. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail 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, 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 EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, 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.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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 through http://www.regulations.gov or in hard copy for public inspection during normal business hours 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.

FOR FURTHER INFORMATION CONTACT:

In Region 4, Joel Huey or Sara Waterson, 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. Mr. Huey may be reached by telephone at (404) 562-9104. Mr. Huey can also be reached via electronic mail at huey.joel@epa.gov. Ms. Waterson may be reached by telephone at (404) 562-9061 or via electronic mail at waterson.sara@epa.gov. In Region 5, John Summerhays, Control Strategies Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. The telephone number is (312) 886-6067. Mr. Summerhays can also be reached via electronic mail at summerhays.john@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What actions is EPA taking?

II. What is the background for these actions?

III. Does the Cincinnati Area meet the annual PM_2.5 standard?

A. Criteria

B. Cincinnati Area Air Quality

C. Has the Cincinnati area met the 1997 annual PM_2.5 air quality standard?

IV. What are the effects of these actions?

V. Statutory and Executive Order Reviews

I. What actions is EPA taking?

EPA is proposing to determine that the Cincinnati Area (comprised of Butler, Clermont, Hamilton, and Warren Counties in Ohio; Boone, Campbell and Kenton Counties in Kentucky; and a portion of Dearborn County in Indiana) has attaining data for the 1997 annual PM_2.5 NAAQS. The proposal is based upon quality assured, quality controlled and certified ambient air monitoring data that show the Area has monitored attainment of the 1997 annual PM_2.5 NAAQS based on the 2007-2009 data. EPA is also proposing to determine, in accordance with EPA's PM_2.5 Implementation Rule of April 25, 2007 (72 FR 20664), that the Cincinnati Area has attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010.

II. What is the background for these actions?

On July 18, 1997 (62 FR 36852), EPA established an annual PM_2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m³) based on a 3-year average of annual mean PM_2.5 concentrations. At that time, EPA also established a 24-hour NAAQS of 65 μg/m³. (This action does not address the 24-hour NAAQS.) See 40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 PM_2.5 NAAQS based upon air quality monitoring data from those monitors for calendar years 2001-2003. These designations became effective on April 5, 2005. The Cincinnati Area was designated nonattainment for the 1997 PM_2.5 NAAQS. See 40 CFR 81.336 (Ohio), 40 CFR 81.318 (Kentucky), and 40 CFR 81.315 (Indiana).

On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM_2.5 NAAQS at 15.0 μg/m³ based on a 3-year average of annual mean PM_2.5 concentrations, and promulgated a 24-hour NAAQS of 35 μg/m³ based on a 3-year average of the 98th percentile of 24-hour concentrations. On November 13, 2009, EPA designated the Cincinnati Area as attainment for the 2006 24-hour NAAQS (74 FR 58688). In that action, EPA also clarified the designations for the NAAQS promulgated in 1997, stating that the Cincinnati Area was designated as nonattainment for the annual NAAQS but attainment for the 24-hour NAAQS. Thus, this action does not address attainment of either the 1997 or the 2006 24-hour NAAQS.

In response to legal challenges of the annual NAAQS promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded this NAAQS to EPA for further consideration. See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). However, given that the 1997 and 2006 annual NAAQS are essentially identical, attainment of the 1997 annual NAAQS would also indicate attainment of the remanded 2006 annual NAAQS.

On April 25, 2007 (72 FR 20664), EPA promulgated its PM_2.5 Implementation Rule, codified at 40 CFR part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the 1997 PM_2.5 NAAQS. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory consequences of attaining the NAAQS, as discussed below.

III. Does the Cincinnati area meet the annual PM_2.5 NAAQS?

A. Criteria

This rulemaking is proposing to find that the Cincinnati Area is attaining the annual PM_2.5 NAAQS, and provides a basis for that final action. The Cincinnati Area includes certain counties in Ohio, Kentucky, and Indiana. The Cincinnati Area is comprised of Butler, Clermont, Hamilton and Warren Counties in Ohio; Boone, Campbell, and Kenton Counties in Kentucky; and the Lawrenceburg Township portion of Dearborn County in Indiana.

Under EPA regulations at 40 CFR 50.7, the annual primary and secondary PM_2.5 NAAQS are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, Appendix N, is less than or equal to 15.0 μg/m³ at all relevant monitoring sites in the subject area.

B. Cincinnati Area Air Quality

EPA has reviewed the ambient air monitoring data for the Cincinnati Area in accordance with the provisions of 40 CFR part 50, Appendix N. All data considered have been quality-assured, certified, and recorded in EPA's Air Quality System (AQS) database. This review addresses air quality data collected in the 3-year period from 2007-2009.

The following table provides the annual average concentrations averaged over 2007-2009 at the sites in the Cincinnati Area. There are no PM_2.5 monitoring sites for the Indiana portion of the Cincinnati Area. The highest 3-year average annual concentration for 2007-2009 on this table is recorded at site 39-061-0014, recording a 3-year average annual concentration of 15.0 μg/m³, which is in attainment of the annual PM_2.5 NAAQS. All other sites in the Area have 3-year average annual PM_2.5 concentrations below 15.0 μg/m³.

The Cincinnati Area did not meet the 75 percent completeness criteria in three cases. The NKU site began operation on August 1, 2007, and thus did not obtain complete data for the first three quarters of 2007. Nevertheless, the average concentration for the remainder of 2007 and all of 2008 and 2009 is 12.5 μg/m³, which indicates attainment at this site. This would not be considered an incomplete record due to it being a new site. EPA approved the closing of two sites in the 2007-2009 time period, which are not listed in the above table, Scarlet Oaks School (39-061-0043) and Hook Field Airport (39-017-1004). Scarlet Oaks School ended operation December 31, 2008 and Hook Field Airport ended operation December 31, 2007. The Scarlet Oaks School site monitored an average concentration of 14.8 μg/m³ in 2007, and an annual average concentration in 2008 of 13.3 μg/m³. The Hook Field Airport site monitored an annual average concentration of 14.6 μg/m³ for 2007. These values are below the NAAQS. An examination of data from these sites is provided in the February 2011 technical support document available in the docket for this proposed rulemaking.

More generally, EPA believes that the Cincinnati Area has a sufficient network of sites collecting complete data showing attainment to conclude that the Cincinnati Area is now meeting the annual PM_2.5 NAAQS. In accordance with 40 CFR part 50, Appendix N and standard EPA practice, the review of this data is based on the three most recent years of complete data, generally 2007-2009. Appendix N does not provide for examining partial years of data, because various seasons of the year reflect various influences on PM_2.5 concentrations, and a partial year's data may not be representative of values that would be determined from a full year's data set. Nevertheless, EPA examined data from 2010. The complete year has not been certified; therefore, the data are not considered complete for 2010. All of the 2008-2010 design values are below the 15.0 μg/m³, except for the Murray Road site in Cincinnati. The Murray Road site has a preliminary 2008-2010 design value of 15.1 μg/m³; however, the site was shut down in February of the first quarter of 2010 due to safety issues. The partial first quarter of 2010 data before the monitor shut down showed the only data above the NAAQS for the 2008-2010 period. The 2008 design value was 14.4 μg/m³ and the 2009 design value was 13.4 μg/m³. Approval was granted for the site to be shut down because the Carthage Fire site registered a higher design value and is located approximately a mile from the Murray Road site. A comparison of the 2007-2009 data showed the sites were well correlated with each other.

The available data for 2010 are consistent with the finding, based on 2007-2009 data, that the Cincinnati Area is attaining the 1997 annual PM_2.5 NAAQS. On the basis of this review, EPA has preliminarily concluded that this Area has met and continues to meet the 1997 PM_2.5 NAAQS. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

C. Has the Cincinnati area met the 1997 annual PM_2.5 air quality standard?

EPA has reviewed the ambient air monitoring data for PM_2.5, consistent with the requirements contained in 40 CFR part 50 and recorded the data in the EPA AQS database, for the Cincinnati Area from 2007 through the present time.

On the basis of that review, EPA proposes to determine that this Area has attained and continues to attain the 1997 annual PM_2.5 NAAQS based on the quality-assured data for the 2007-2009 and 2008-2010 monitoring periods. In addition, based on EPA's review of the data for 2007-2009, and in accordance with section 179(c)(1) of the CAA and EPA's regulations, EPA proposes to determine that the Area attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010.

IV. What is the effect of these actions?

If this proposed determination of attainment is made final, the requirements for the Cincinnati Area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning SIPs related to attainment of the 1997 annual PM_2.5 NAAQS would be suspended for so long as the Area continues to attain the PM_2.5 NAAQS. See 40 CFR 51.1004(c).

If this proposed rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, that the Area has violated the annual PM_2.5 NAAQS, the basis for the suspension of the specific requirements would no longer exist for the Cincinnati Area, and the Area would thereafter have to address the applicable requirements. See 40 CFR 51.1004(c).

Finalizing this proposed action would not constitute a redesignation of the Area to attainment of the annual PM_2.5 NAAQS under section 107(d)(3) of the Clean Air Act (CAA). Further, finalizing this proposed action does not involve approving maintenance plans for the Area as required under section 175A of the CAA, nor would it find that the Area has met all other requirements for redesignation. Even if EPA finalizes the proposed action, the designation status of the Cincinnati Area would remain nonattainment for the 1997 annual PM_2.5 NAAQS until such time as EPA determines that the Area meets the CAA requirements for redesignation to attainment and takes action to redesignate the Area.

This action is only a proposed determination of attainment that the Cincinnati Area has attained the 1997 annual PM_2.5 NAAQS. This action does not address the 24-hour PM_2.5 NAAQS.

If the Cincinnati Area continues to monitor attainment of the annual PM_2.5 NAAQS, the requirements for the Cincinnati Area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning SIPs related to attainment of the annual PM_2.5 NAAQS will remain suspended.

In addition, if EPA's separate and independent proposed determination that the Area has attained the 1997 annual PM_2.5 standard by its applicable attainment date (April 5, 2010) is finalized, EPA will have met its requirement pursuant to section 179(c)(1) of the CAA to make a determination based on the Area's air quality data as of the attainment date whether the Area attained the standard by that date.

These two actions described above are proposed determinations regarding the Cincinnati Area's attainment status only with respect to the 1997 annual PM_2.5 NAAQS. Today's actions do not address the 24-hour PM_2.5 NAAQS.

V. Statutory and Executive Order Reviews

These actions propose to make a determination of attainment based on air quality, and would, if finalized, result in the suspension of certain federal requirements, and it would not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:

• Are not “significant regulatory actions” 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 economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, these proposed 1997 annual PM_2.5 NAAQS determinations for the Cincinnati Area do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Particulate matter
• Intergovernmental relations
• Reporting and recordkeeping requirements

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