[Federal Register Volume 61, Number 189 (Friday, September 27, 1996)]
[Rules and Regulations]
[Pages 50718-50720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24858]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[KY81-1-9638; FRL-5607-3]


Approval and Promulgation of Air Quality Implementation Plans; 
The Commonwealth of Kentucky--Disapproval of the Request to Redesignate 
the Kentucky Portion of the Cincinnati-Northern Kentucky Moderate Ozone 
Nonattainment Area to Attainment and the Associated Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving the Commonwealth of Kentucky Natural 
Resources and Environmental Protection Cabinet's (Cabinet) request to 
redesignate the Kentucky portion of the Cincinnati-Northern Kentucky 
moderate ozone nonattainment area to attainment and the associated 
maintenance plan as a revision to the state implementation plan (SIP). 
The EPA determined that the area registered a violation of the ozone 
national ambient air quality standard (NAAQS). As a result, the 
Cincinnati-Northern Kentucky area no longer meets the statutory 
criteria for redesignation to attainment of the ozone NAAQS.

EFFECTIVE DATE: September 27, 1996.

ADDRESSES: Copies of the documents relative to this action are 
available for public inspection during normal business hours at the 
following locations. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.
    Air and Radiation Docket and Information Center (Air Docket 6102), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
    Environmental Protection Agency, Region 4 Air Planning Branch, 100 
Alabama Street, SW, Atlanta, Georgia 30303-3104.
    Division of Air Quality, Department for Environmental Protection, 
Natural Resources and Environmental Protection Cabinet, 803 Schenkel 
Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur, Regulatory Planning 
and Development Section, Air Programs Branch, Air, Pesticides & Toxics 
Management Division, Region 4 Environmental Protection Agency, 345 
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is 
404/562-9035. Reference file KY-081-1-9638.

SUPPLEMENTARY INFORMATION: On November 11, 1994, the Cabinet submitted 
a request to EPA to redesignate the Kentucky portion of the Cincinnati-
Northern Kentucky moderate interstate ozone nonattainment area from 
nonattainment to attainment. On that date, the Cabinet also submitted a 
maintenance plan for the area as a revision to the Kentucky SIP.
    According to section 107(d)(3)(E) of the Clean Air Act (CAA), 42 
U.S.C. 7407(d)(3)(E), redesignation requests must meet five specific 
criteria in order for EPA to redesignate an area from nonattainment to 
attainment:
    1. The Administrator determines that the area has attained the 
ozone 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 implementation plan and 
applicable Federal air pollution 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.
    All five criteria must be satisfied in order for EPA to redesignate 
an area from nonattainment to attainment. Under the first criteria, the 
Administrator of EPA is prohibited from redesignating an area to 
attainment when that area has not attained the NAAQS. The CAA requires 
the area to be in attainment at the time of the final action on the 
redesignation. If a violation occurs prior to EPA's final action, the 
area is no longer in attainment and EPA cannot redesignate the area to 
attainment status.
    At the time of the Commonwealth's redesignation submittal in 1994, 
the Cincinnati-Northern Kentucky area appeared to have attained the 
NAAQS, based on air quality data monitored from 1992 through 1994. 
However, during EPA's review of the redesignation request, ambient air 
quality data indicated that the area had registered a violation of the 
ozone NAAQS in 1995. This ambient data has been quality assured 
according to established procedures for validating such monitoring 
data. The Cabinet does not contest that the area violated the NAAQS for 
ozone during the 1995 ozone season. As a result, the Cincinnati-
Northern Kentucky area does not meet the statutory criteria for 
redesignation to attainment of the ozone NAAQS found in section 
107(d)(3)(E)(i) of the CAA.
    The maintenance plan SIP revision is not approvable because its 
demonstration is based on a level of ozone precursor emissions in the 
ambient air thought to represent an inventory of emissions that would 
provide for attainment and maintenance. That underlying basis of the 
maintenance plan's demonstration is no longer valid due to the 
violation of the NAAQS that occurred during the 1995 ozone season.

Request for Comments

    EPA published a document on April 17, 1996, (61 FR 16738) proposing 
disapproval of the maintenance plan and redesignation request and 
soliciting comment on the disapproval and relevant issues. EPA received 
a number of comments on the proposal. Those comments and the response 
thereto are summarized below.
    Comment #1--The violation of the ozone standard which occurred 
subsequent to the submission of the request cannot be considered 
evidence that the area did not achieve the ozone standard, by the very 
definition of the standard as set forth in the Act and the regulations. 
The continued designation of the area as nonattainment not only fails 
to serve a useful purpose, but actually inhibits the broader view of 
urban ozone pollution that will be necessary to improve air quality. 
Public acceptance of control implementation may be enhanced under an 
attainment area contingency plan strategy. This is an additional factor 
which should not be overlooked as EPA and the states struggle to gain 
public acceptance of new air quality improvement plans.
    Response--The CAA authorizes EPA up to 18 months from submittal to 
act on a state's request to redesignate. If a violation occurs during 
the pendency of EPA's review, EPA cannot approve the request since the 
area would not have remained in attainment. Since only a

[[Page 50719]]

final rulemaking can change an area's designation, the area must 
continue to meet attainment criteria until the final rulemaking is 
published. In addition, EPA is obligated to consider all relevant data 
available to it at the time of its decision-making. This means that if 
EPA has valid data indicating a violation of the ozone standard for the 
Cincinnati-Northern Kentucky area prior to final rulemaking, it must 
consider that data in determining whether the area is in attainment. 
The CAA prohibits a redesignation to attainment if the area is not, in 
fact, attaining the NAAQS at the time of final rulemaking.
    The violation of the ozone standard which occurred after submittal 
of the Kentucky redesignation request for the Cincinnati-Northern 
Kentucky area is properly considered data on attainment status. 
Therefore, EPA is disapproving the redesignation request.
    Comment  #2--A redesignation to attainment should not be 
interpreted to mean more than the satisfaction of those provisions 
mandated in the CAA for the request to be granted.
    Response--EPA is not requiring more for a redesignation to 
attainment than that required by the CAA. Section 107(d)(3)(E)(i) of 
the CAA states, ``The Administrator may not promulgate a redesignation 
of a nonattainment area (or portion thereof) to attainment unless the 
Administrator determines that the area has attained the national 
ambient air quality standard.'' Once the violation occurred, the 
Cincinnati-Northern Kentucky area no longer met the statutory criteria 
for redesignation to attainment of the ozone NAAQS. Therefore, EPA is 
disapproving the redesignation request.
    Comment  #3--The approval of the requests will do nothing to 
inhibit the immediate implementation of emission control programs 
within the nonattainment area.
    Response--Approving the request to redesignate the area to 
attainment would not guarantee that the area would achieve the NAAQS. 
Conversely, disapproving the redesignation request in no way prohibits 
the implementation of emission control programs within the 
nonattainment area. In fact, disapproval would require the area to meet 
all the CAA measures for moderate ozone nonattainment areas.
    Comment  #4--The violation was due to a single exceedance that 
occurred at a monitoring site in Ohio and should not affect the 
redesignation of the Kentucky portion of the nonattainment area.
    Response--Ozone is a pollutant that is not directly emitted, but is 
formed from a photochemical reaction between volatile organic compounds 
(VOCs) and oxides of nitrogen (NOX) in the presence of sunlight. 
Ozone may be formed as much as 20 miles from where the VOCs and 
NOX are emitted and transported even farther. This makes ozone an 
area-wide problem. The ozone NAAQS is 0.12 parts per million as stated 
in 40 CFR 50.9. To be considered a violation, a single monitor must 
exceed this value four times in a three year period. The NAAQS was 
exceeded for the fourth time in two years at the Lebanon, Ohio site in 
Warren County Ohio. The fourth exceedance caused the violation, 
however, two sites in Northern Kentucky also exceeded the standard in 
this time period. In addition, as indicated above, the CAA states that 
EPA ``may not promulgate a redesignation of a nonattainment area (or 
portion thereof) to attainment unless * * * the area has'' attained the 
standard. Although a violation did not occur in the Kentucky portion of 
the nonattainment area, a request to redesignate a portion of an area 
to attainment may not be approved if the entire area does not meet the 
redesignation requirements.
    Comment  #5--Before the CAA Amendments of 1990, the U.S. EPA could 
redesignate an area only after a request by the governor of the state 
in which it was located. The 1990 amendments provided EPA with the 
authority to act unilaterally to propose redesignation. This authority 
will allow the federal agency to respond much more quickly if a state 
is recalcitrant in implementing or enforcing contingency measures.
    Response--The revised CAA does allow EPA to act more quickly to 
redesignate to nonattainment, however, the Cincinnati-Northern Kentucky 
area no longer meets the statutory criteria for redesignation to 
attainment of the ozone NAAQS. The Agency cannot redesignate an area 
that violates the standard prior to final action on a redesignation 
request. Therefore, EPA is disapproving the redesignation request.

Final Action

    EPA disapproves the Commonwealth's November 11, 1994 redesignation 
request and maintenance plan SIP revision. The agency has reviewed this 
request for revision of the Federally-approved SIP for conformance with 
the provisions of the CAA. The Agency has determined that this action 
does not conform with the statute as amended and should be disapproved.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    EPA's denial of the State's redesignation request under section 
107(d)(3)(E) does not affect any existing requirements applicable to 
small entities nor does it impose new requirements. The area retains 
its current designation status and will continue to be subject to the 
same statutory requirements. To the extent that the area must adopt 
regulations, based on its nonattainment status, EPA will review the 
effect of those actions on small entities at the time the state submits 
those regulations. Therefore, I certify that denial of the 
redesignation request will not affect a substantial number of small 
entities.

Unfunded Mandates

    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the

[[Page 50720]]

program provided for under Section 110 of the CAA. These rules may bind 
State, local and tribal governments to perform certain actions and also 
require the private sector to perform certain duties. EPA has examined 
whether the rules being disapproved by this action would impose any new 
requirements. Since such sources are already subject to these 
regulations under State law, no new requirements are imposed by this 
disapproval. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action, 
and therefore there will be no significant impact on a substantial 
number of small entities.
    Under 5 U.S.C. 801(a)(1)(A) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, EPA submitted a report containing 
this rule and other required information to the U.S. Senate, the U.S. 
House of Representatives and the Comptroller General of the General 
Accounting Office prior to publication of the rule in today's Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 27, 1996. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Air pollution control, Hydrocarbons, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: August 15, 1996.
R. F. McGhee,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42.U.S.C. 7401-7671q.

Subpart S--Kentucky

    2. Section 52.930 is amended by adding paragraph (c) to read as 
follows:


Sec. 52.930  Control strategy: Ozone.

* * * * *
    (c) The redesignation request submitted by the Commonwealth of 
Kentucky, on November 11, 1994, for the Kentucky portion of the 
Cincinnati-Northern Kentucky moderate interstate ozone nonattainment 
area from nonattainment to attainment was disapproved on September 27, 
1996.

[FR Doc. 96-24858 Filed 9-26-96; 8:45 am]
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