[Federal Register Volume 67, Number 29 (Tuesday, February 12, 2002)]
[Rules and Regulations]
[Pages 6411-6413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3357]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY-116; KY-119-200214a; FRL-7141-9]


Approval and Promulgation of Implementation Plans Reinstatement 
of Redesignation of Area for Air Quality Planning Purposes; Kentucky 
Portion of the Cincinnati-Hamilton Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Cincinnati-Hamilton moderate 1-hour ozone nonattainment 
area (Cincinnati-Hamilton area) includes the Ohio Counties of Hamilton, 
Butler, Clermont, and Warren and the Kentucky Counties of Boone, 
Campbell, and Kenton. In a Federal Register notice published June 19, 
2000, the Cincinnati-Hamilton area was redesignated to attainment for 
the 1-hour ozone National Ambient Air Quality Standard (NAAQS) 
effective July 5, 2000. On September 11, 2001, the United States Court 
of Appeals for the 6th Circuit vacated EPA's redesignation of the 
Cincinnati-Hamilton area, after concluding that EPA erred in one 
respect that pertained solely to the Ohio portion of the area. Wall v. 
EPA, 265 F.3d 426 (6th Cir. 2001). Therefore, in response to the 
Court's findings, this rulemaking action reinstates EPA's redesignation 
to attainment for the 1-hour ozone NAAQS for the Kentucky portion of 
the Cincinnati-Hamilton area, to become effective as of the effective 
date of the original redesignation action. EPA is addressing the remand 
relating to the Ohio portion of the Cincinnati-Hamilton area in a 
separate rulemaking action.

DATES: This direct final rule is effective April 15, 2002, without 
further notice, unless EPA receives adverse comment by March 14, 2002. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Raymond Gregory, 
Regulatory Development Section, Air Planning Branch, U.S. Environmental 
Protection Agency Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 
30303.
    Copies of the Cabinet's original redesignation request, the Court's 
ruling and other information are available for inspection during normal 
business hours at the following locations: U.S. Environmental 
Protection Agency, Region 4, Air Planning Branch, Regulatory 
Development Section, 61 Forsyth Street, SW, Atlanta, Georgia 30303; 
Commonwealth of Kentucky, Division for Air Quality, 803 Schenkel Lane, 
Frankfort, Kentucky 40601-1403. Persons wishing to examine these 
documents should make an appointment at least 24 hours before the 
visiting day and reference file KY-116.

FOR FURTHER INFORMATION CONTACT: Raymond Gregory, Environmental 
Scientist, Regulatory Development Section, Air Planning Branch, U.S. 
Environmental Protection Agency Region 4, 61 Forsyth Street, SW, 
Atlanta, Georgia 30303, (404) 562-9116, ([email protected]).

SUPPLEMENTARY INFORMATION:

[[Page 6412]]

Table of Contents

I. What action are we taking?
II. What is the background for this action?
III. Why are we taking this action?
IV. What is the effect of this action?
V. Administrative requirements.

I. What Action Are We Taking?

    In this direct final rulemaking, EPA is reinstating the 
redesignation to attainment for the Kentucky portion of the Cincinnati-
Hamilton area for the 1-hour ozone NAAQS. The Cincinnati-Hamilton area, 
which includes the Ohio Counties of Hamilton, Butler, Clermont, and 
Warren and the Kentucky Counties of Boone, Campbell, and Kenton; was 
redesignated to attainment for the 1-hour ozone NAAQS (65 FR 37879, 
June 19, 2000), effective July 5, 2000.
    EPA is taking this action in response to the Court decision in Wall 
v. EPA, 265 F.3d 426 (6th Cir. 2001) which vacated EPA's redesignation 
of the Cincinnati-Hamilton area to attainment and remanded to EPA for 
further proceedings consistent with the Court's opinion. The Court in 
Wall v. EPA considered a number of challenges to EPA's redesignation 
action, but upheld EPA's redesignation action in all respects with 
regard to the Kentucky portion of the Cincinnati-Hamilton area. The 
Court also concluded that EPA erred only on one element that pertained 
solely to the Ohio portion of the Cincinnati-Hamilton area. EPA is 
addressing the remand relating to the Ohio portion of the Cincinnati-
Hamilton area in a separate rulemaking action.

II. What Is the Background for This Action?

    Under section 107(d) of the Clean Air Act (CAA) as amended in 1977, 
all counties in the Cincinnati-Hamilton area were designated as an 
ozone nonattainment area in March 1978 (43 FR 8962). On November 6, 
1991 (56 FR 56694), pursuant to section 107(d)(4)(A) of the CAA as 
amended in 1990, the Ohio Counties of Butler, Clermont, Hamilton, and 
Warren and the Kentucky Counties of Boone, Campbell, and Kenton were 
designated as the Cincinnati-Hamilton moderate ozone nonattainment 
area, due to monitored violations of the 1-hour ozone NAAQS that 
occurred during the 1987-1989 time frame.
    For the 1996-1998 ozone seasons, Kentucky and Ohio recorded three 
years of complete, quality-assured, ambient air monitoring data for the 
Cincinnati-Hamilton area that demonstrated attainment with the 1-hour 
ozone NAAQS, making the area eligible for redesignation. Quality-
assured ozone monitoring data for the 1999 and 2000 ozone seasons, and 
preliminary ozone monitoring data for the 2001 ozone season, show that 
the area continues to attain the 1-hour ozone NAAQS.
    The Commonwealth of Kentucky Natural Resources and Environmental 
Protection Cabinet (Cabinet) and the State of Ohio Environmental 
Protection Agency (OEPA) submitted separate requests to redesignate the 
Kentucky and Ohio portions of the Cincinnati-Hamilton area from 
nonattainment to attainment for the 1-hour ozone NAAQS. On October 28, 
1999, the Cabinet submitted a prehearing redesignation request and 
requested that EPA parallel process this submittal. The Cabinet 
submitted the final redesignation request, including public hearing 
results, on December 13, 1999. On July 2, 1999, EPA received a proposed 
redesignation request from OEPA. OEPA submitted additional supporting 
information on August 16, 1999, and completed the submittal by 
providing public hearing results on December 22, 1999.
    On January 24, 2000 (65 FR 3630) EPA proposed approval of the above 
requests. This rulemaking also proposed to determine that the 
Cincinnati-Hamilton area attained the 1-hour ozone NAAQS by its 
extended attainment date, and proposed to approve an exemption for the 
area from nitrogen oxides requirements as provided for in section 
182(f) of the CAA. After taking and considering comments, EPA issued a 
final rulemaking (65 FR 37879, June 19, 2000), effective July 5, 2000, 
determining that the Cincinnati-Hamilton area had attained the 1-hour 
ozone NAAQS. This rulemaking also approved the Cabinet's and OEPA's 
redesignation requests, including their plans for maintaining the 1-
hour ozone NAAQS.
    On August 17, 2000, two Ohio residents and the Ohio chapter of the 
Sierra Club petitioned the Court for review of EPA's redesignation of 
the Cincinnati-Hamilton area. The petitioners urged the Court to find 
that EPA erred in a number of respects, but the Court upheld EPA's 
actions with respect to all requirements for redesignation that relate 
to Kentucky. The Court also rejected all of the petitioners' challenges 
with respect to the Ohio portion of the Cincinnati-Hamilton area, with 
the sole exception of EPA's finding that it could approve Ohio's 
redesignation request before Ohio had fully adopted all of the 
Reasonably Available Control Technology (RACT) rules of part D, subpart 
2. Specifically, the Court rejected challenges to, and upheld EPA's 
approvals of, the Kentucky and Ohio maintenance plans and EPA's 
conclusions with respect to transportation conformity requirements. The 
Court concluded that EPA exceeded its discretion by determining that 
Ohio did not need to fully adopt all of the RACT rules of part D, 
subpart 2 before being redesignated. The Court vacated ``EPA's action 
in redesignating Cincinnati-Hamilton area to attainment status for 
ground level ozone'' and ``remanded for further proceedings consistent 
with this opinion.''

III. Why Are We Taking This Action?

    In response to the Court's vacatur and remand, EPA believes that it 
is consistent with the Court's opinion to reinstate the redesignation 
of the Kentucky portion of the Cincinnati-Hamilton area, to become 
effective as of the original effective date of this redesignation 
action. The grounds for reinstatement are as follows: (1) EPA has 
issued a final redesignation action for the Kentucky portion of the 
area, after notice and comment rulemaking; (2) the Court, after 
reviewing EPA's actions, has upheld EPA's determination of attainment 
for the entire Cincinnati-Hamilton area (both the Ohio and Kentucky 
portions), EPA's approval of the maintenance plans for both the 
Kentucky and Ohio portions of the area, and EPA's action approving 
Kentucky's request for redesignation of the Kentucky portion of the 
Cincinnati-Hamilton area. Thus, both EPA and the Court concur that 
Kentucky has fully met the requirements for redesignation of the 
Kentucky portion of the Cincinnati-Hamilton area, the entire area was 
determined to be in attainment for the 1-hour ozone NAAQS, and both 
portions of the area have fully-approved maintenance plans that have 
withstood challenges after judicial review. The Court left intact all 
of EPA's determinations with respect to attainment and maintenance for 
the entire area, as well as all the remaining requirements for 
redesignation of the Kentucky portion of the Cincinnati-Hamilton area.
    The CAA expressly provides for designation and redesignation of 
portions of nonattainment areas. See, for example section 107(3)(D): 
``The Governor of any State may, on the Governor's own motion, submit 
to the Administrator a revised designation of any area or portion 
thereof within the State * * *.'' Similarly, section 107(d)(3)(E) 
provides that: ``The Administrator may not promulgate a redesignation 
of a nonattainment area (or portion thereof) to attainment unless--* * 
*.''

[[Page 6413]]

    EPA has in the past approved redesignation requests for a portion 
of an area in a multi-state nonattainment area that had attained the 
standard. See, for example, the June 29, 1995, redesignation of the 
Huntington, West Virginia, portion of the Huntington-Ashland, Kentucky, 
ozone nonattainment area to attainment and approval of that area's 
maintenance plan (60 FR 33748).
    Under these circumstances, EPA has the authority to redesignate the 
Kentucky portion of the area, independent of whether Ohio has met all 
the requirements for a fully approved State Implementation Plan (SIP) 
for the Ohio portion of the area.

IV. What Is the Effect of This Action?

    When it takes effect, the reinstatement of EPA's redesignation for 
the Kentucky portion of the Cincinnati-Hamilton area will be effective 
as of the original effective date of EPA's June 19, 2000, redesignation 
action. Thus, the official designation of the Kentucky Counties of 
Boone, Campbell, and Kenton, as identified in 40 CFR 81.318 will 
continue to read attainment as of July 5, 2000. This direct final 
rulemaking has no impact on the official designation of the Ohio 
Counties of Butler, Warren, Clermont, and Hamilton. The attainment 
status of the Ohio portion of the Cincinnati-Hamilton area is being 
addressed in a separate rulemaking action.
    Other EPA actions taken in the June 19, 2000, redesignation 
rulemaking for the Cincinnati-Hamilton area and upheld by the Court are 
unaffected by today's rulemaking. EPA's approvals of Kentucky's and 
Ohio's maintenance plans have remained in place, since the Court upheld 
our approval of these plans. Similarly, EPA's determination of 
attainment for the area has remained in place. Thus the requirements of 
section 172(c)(1), 182(b)(1) and 182(j) concerning the submission of 
the ozone attainment demonstration and the requirements of section 
172(c)(9) concerning contingency measures for reasonable further 
progress or attainment continue to remain inapplicable to the area. 
Since the NOX exemption was not affected by the Court's 
ruling, the area also remains exempt from section 182(f) NOX 
requirements for moderate ozone nonattainment areas.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely reinstates a previous redesignation to attainment, an action 
that affects the attainment status of a geographical area. 
Redesignation of an area to attainment under section 107(d)(3)(E) of 
the CAA does not impose any new requirements on sources, including 
small entities. Accordingly, the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Because this rulemaking does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial 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, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely reinstates a previous 
action redesignating an area to attainment--an action which affects the 
attainment status of a geographical area. It does not impose any new 
requirements on sources, or allow a state to avoid adopting or 
implementing other requirements. Nor does it alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this action. This action also is not subject to Executive Order 
13045 ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not 
economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. The current action merely 
reinstates a previous action that was taken based on review of a 
Kentucky SIP submittal that satisfied all CAA provisions. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 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 
rule 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. 
section 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 April 15, 2002. 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 81

    Air pollution control, National parks, Wilderness areas.

    Dated: January 22, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 02-3357 Filed 2-11-02; 8:45 am]
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