[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Rules and Regulations]
[Pages 49600-49606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19324]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY-116; KY-119-200214(d); FRL-7252-8]


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: Final rule.

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SUMMARY: The EPA is finalizing the reinstatement of the redesignation 
to attainment for the 1-hour ozone National Ambient Air Quality 
Standard (NAAQS) for the Kentucky portion of the Cincinnati-Hamilton 
area. This final rule addresses these comments made on EPA direct final 
rulemaking previously published for this action.

DATES: This final rule is effective August 30, 2002.

ADDRESSES: Copies of the Commonwealth of Kentucky's original 
redesignation request, the Court's ruling and other information are 
available for inspection during normal business hours at EPA Region 4, 
Air Planning Branch, 61 Forsyth Street, Atlanta, Georgia 30303-8960; 
Persons wishing to examine these documents should make an appointment 
at least 24 hours before the visiting day and reference file KY-116.
    Copies of the Commonwealth of Kentucky's original redesignation 
request are also available at Commonwealth of Kentucky, Division for 
Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-1403.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni at the EPA Region 4 
address listed above or 404-562-9031 (phone) or 
[email protected] (e-mail).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Comment and Response
IV. Final Action
V. Administrative Requirements

I. Today's Action

    In this final rulemaking, EPA is responding to comments received 
regarding a direct final and proposed rule to reinstate the 
redesignation to attainment for the 1-hour ozone NAAQS for the Kentucky 
portion of the Cincinnati-Hamilton area.

II. Background

    On June 19, 2000, EPA issued a final rule determining that the 
Cincinnati-Hamilton area had attained the one-hour ozone NAAQS, and 
redesignating both the Ohio and Kentucky portions of the area to 
attainment. 65 FR 37879. A petition for review resulted in the U.S. 
Court of Appeals for the Sixth Circuit vacating EPA's action in 
redesignating the area to attainment, and remanding to EPA for further 
proceedings consistent with the Court's opinion.
    On February 12, 2002, the EPA published a proposed rule (67 FR 
6459) and a direct final rule (67 FR 6411) to reinstate the attainment 
redesignation of the Kentucky portion of the Cincinnati-Hamilton 
moderate 1-hour ozone nonattainment area (Cincinnati-Hamilton area), 
which comprises the Ohio Counties of Hamilton, Butler, Clermont, and 
Warren and the Kentucky Counties of Boone, Campbell, and Kenton. 
Further background is set forth in the direct final rulemaking. 67 FR 
6411. The EPA withdrew the direct final rule on April 8, 2002 (67 FR 
16646), because adverse comments were received. This final rule 
addresses the comments.

III. Comment and Response

What Comments Did We (EPA?) Receive and What Are Our Responses?

    EPA received two sets of adverse comments, one submitted by David 
Baron on behalf of the Sierra Club, Brian Scott, Pasko, and Ron 
Colwell, and the other submitted by Hank Gaddy on behalf of the 
Cumberland, KY Chapter of the Sierra Club. A summary of the adverse 
comments and EPA's responses to them are provided below.
    Comment 1: A commentor contends that section 107(d)(3)(E) of the 
Clean Air Act (the ``Act'') unambiguously prohibits redesignation of 
any portion of a nonattainment area to attainment unless all of the 
requirements set forth in section 107(d)(3)(E) are met for the entire 
nonattainment area. Since the Court in Wall v. EPA, 265 F.3d 426 (6th 
Cir. 2001) determined that there was a deficiency in the Ohio 
Reasonably Available Control Technology (RACT) rules that must be 
remedied before EPA could find that Ohio met the requirements for 
redesignation, then this also prevents EPA from reinstating the 
redesignation of the Kentucky portion which the Court had upheld in all 
respects.
    Response 1: The Wall Court did not vacate EPA's approval of the 
maintenance plan for either portion of the area. Therefore the 
maintenance plan for the entire area is approved. The

[[Page 49601]]

Court also did not vacate EPA's determination of attainment for the 
entire area. Therefore the determination remains in effect. In 
addition, the area has continued to remain in attainment through July 
31, 2002. Moreover, the Wall Court upheld EPA's action with respect to 
all aspects of the redesignation of the Kentucky portion of the 
Cincinnati area. For the reasons set forth more fully below, EPA 
believes that the Kentucky portion may be redesignated separately from 
the Ohio portion, and the deficiency in the Ohio RACT rule in no way 
prevents EPA from reinstating its redesignation of Kentucky, which the 
Court has validated in all respects. The Court's ruling on the Ohio 
RACT rules affects only the requirements relating to the Ohio State 
Implementation Plan (SIP), which are not relevant to whether Kentucky 
fulfilled all its requirements under the Clean Air Act regarding the 
area. 67 FR 6411-6413 (February 12, 2002) (See also responses to 
Comments 2, 3, and 4.)
    Comment 2: In section 182(j) of the Act, Congress provided for 
relief from certain Clean Air Act sanctions for a state in a multi-
state ozone nonattainment area, where continued nonattainment is due to 
the failure of one or more other states in which other portions of the 
area are located to commit to implementation of required measures. 
Significantly, Congress did not provide for any sort of similar relief 
from the Act's redesignation requirements for a state within a multi-
state ozone nonattainment area.
    Response 2: The language of section 107(d)(3)(E) itself provides 
that a portion of a nonattainment area can be redesignated if the 
requirements for redesignation are met: ``The Administrator may not 
promulgate a redesignation of a nonattainment area (or portion thereof) 
to attainment unless * * *'' Similarly, section 107(d)(3)(D) provides: 
``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 * * *''
    Other subparts of section 107(d)(3) also refer to redesignation of 
an area or portion thereof. See sections 107(d)(3)(A), (B), and (C).
    Thus, the Act clearly contemplates the possibility of redesignating 
a portion of a nonattainment area. The remaining subparts must be read 
in the context of whether an area or a portion of an area is being 
redesignated. If it is a portion of a multi-state area that is being 
redesignated, then the word ``area'' as subsequently used in the 
subpart must refer to that portion of the multi-state area that is 
being redesignated. This interpretation is borne out by the express 
terms of the subparts of 107(d)(3)(E). (See response to Comment 3 
below.) In general, EPA issues simultaneous redesignations for joint 
portions of multistate ozone areas. In a few instances, however, where 
separate portions of a multistate area have been unable to successfully 
coordinate their redesignation efforts and one state has met all the 
requirements for redesignation, EPA has applied section 107(d)(3)(E) to 
implement Congressional intent to allow redesignation of a portion of 
the multi-state area where that portion meets the statutory 
requirements and where the entire area is attaining the standard.
    In section 182(j), Congress similarly expressed its intent to allow 
EPA to treat portions of multi-state areas separately so as not to 
penalize one portion of a multi-state nonattainment area simply because 
the state controlling the other portion had not fully discharged its 
regulatory responsibilities. In that section, even where the entire 
area remains nonattainment, Congress provided for separate recognition 
and treatment for the state that had fulfilled its statutory 
obligations. Similarly, in section 107(d), Congress expressly provided 
that a portion of a multi-state nonattainment area that met the 
requirements for redesignation should not be penalized by a failure of 
a state controlling an adjoining portion. In section 107, Congress 
distinguished between the air quality in the region and the control 
regime, and clearly intended that, where air quality met the standard 
in the area, the state with authority over a portion of the area that 
has met all the remaining requirements should not be penalized by 
having to remain labeled nonattainment. Thus under appropriate 
circumstances, EPA has implemented this intent by allowing 
redesignation of a portion of a multi-state area.
    Comment 3: EPA's approach would undermine Congressional intent to 
ensure that nonattainment areas would completely comply with the Act's 
requirements prior to redesignation, and to not allow an area to evade 
adoption of required controls, be redesignated, and fall back into 
nonattainment.
    Response 3: EPA's approach does not undermine Congressional intent. 
In fact, redesignating the Kentucky portion of Cincinnati implements 
the intent of Congress as expressed in the redesignation provisions of 
the statute. First, the entire area is attaining the one-hour ozone 
standard, and EPA's attainment determination remains in effect, and has 
never been challenged. Second, the maintenance plans for the entire 
area were approved by EPA, reviewed by the Sixth Circuit, and upheld. 
The Ohio and Kentucky maintenance plans remain in place, and were never 
vacated. Third, Kentucky has met all of the requirements for 
redesignation. In its June 2000 rulemaking, EPA reviewed and approved 
the redesignation based on its findings that Kentucky met these 
requirements, and the Sixth Circuit has reviewed and upheld EPA's 
actions in their entirety with respect to the Kentucky portion of the 
area. Fourth, all aspects of the Ohio portion of the Cincinnati area 
were reviewed and upheld by the Sixth Circuit, with the sole exception 
of some RACT rules which the Court agreed were not necessary for 
attainment or maintenance. Commitments to adopt these rules are already 
included as contingency measures in the approved maintenance plan for 
Ohio. Finally, Ohio is in the process of revising its RACT rules so 
that it can resubmit its redesignation request in accordance with the 
Court's decision in the Wall case, so that it is likely that processing 
of the redesignation of the Ohio portion of the area will take place in 
close proximity to the reinstatement of the redesignation, for the 
Kentucky portion. EPA believes that this type of coordination will 
further insure that the redesignation efforts will be kept in balance 
in both portions of the area.
    There is thus no legal impediment to redesignation and no 
environmental benefit in favor of holding the Kentucky portion of the 
area hostage. To force Kentucky to reconstruct and resubmit work 
already reviewed and upheld, and to compel EPA to reevaluate 
rulemakings that this Court has already reviewed and approved, would 
result in a waste of state, EPA, and judicial resources, and to defeat 
the intent of Congress. This Court has upheld the principle that where 
EPA has already approved state rulemakings as meeting Clean Air Act 
requirements, it need not re-do this work for purposes of finding that 
requirements are met for a redesignation action. See Calcagni memo\1\, 
which advises that ``an EPA action on a redesignation request does not 
mean that earlier issues with regard to the SIP will be reopened'', and 
SPGA v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998), Wall v. EPA, 265 
F.3d 426, 438 (6th Cir. 2001)
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    \1\ Memorandum from John Calcagni, Director of the EPA Air 
Quality Management Division, dated September 4, 1992, entitled 
``Procedures for Processing Requests to Redesignate Area to 
Attainment.''

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[[Page 49602]]

    In the case of Cincinnati, the entire area is attaining the one-
hour ozone standard, the Kentucky portion has completely complied with 
the remainder of the Act's requirements prior to being redesignated, 
and the entire area, including both the Ohio and Kentucky portions, has 
approved maintenance plans in effect. There is fulfillment, and not 
evasion of Congressional intent. The introductory sentence in section 
107(d)(3)(E) clearly and expressly provides the Administrator with the 
option of redesignating a portion of a nonattainment area. If a portion 
of a nonattainment area is the subject of the redesignation, the 
reference to
    ``area'' in the subsequent subparts of section 107(d)(3)(E), must 
be read to apply to the portion being redesignated. In fact, when one 
state's portion of a multi-state area is being redesignated, that is 
the only meaningful way to read subparts (ii) through (v) of section 
107(d)(3)(E), since they refer to the control requirements and plans 
for the state that contains the portion of the area.
    Where a portion of an area is requesting redesignation, subpart (i) 
requires the Administrator to determine its attainment status. Because 
ozone is an area pollutant, EPA has concluded that the determination of 
whether a portion of a multistate ozone area has attained includes 
consideration of the attainment status of the area as a whole. By 
contrast, subparts (ii) through (v) refer to implementation plan 
requirements for the area being redesignated, and each plan applies 
only to that portion over which the state requesting redesignation has 
authority. Subpart (ii) states that ``the Administrator has fully 
approved the applicable implementation plan for the area under section 
110(k)''. Where only one state's portion of the area is the subject of 
the redesignation action, this subsection, written in the singular, 
applies to that state's plan for the area--that is, to its portion of 
the larger nonattainment area. Similarly, subpart (iii) requires the 
Administrator to determine that there are permanent and enforceable 
reductions in emissions ``resulting from implementation of the 
applicable implementation plan * * *'', which means, in the case of a 
portion of a multi-state area, the implementation plan applicable to 
that portion of the area being redesignated.
    Subpart (iv) states that the Administrator must fully approve ``a 
maintenance plan for the area as meeting the requirements of section 
175A''. Here again, the only maintenance plan for the area being 
redesignated is for that portion over which the state requesting 
redesignation has authority. No other maintenance plan is subject to 
approval. Section 175A itself reinforces this reading. It provides:

    Each state which submits a request under section 107(d) for 
redesignation of a nonattainment area for any air pollutant as an 
area which has attained the national primary ambient air quality 
standard for that air pollutant shall also submit a revision of the 
applicable State implementation plan to provide for the maintenance 
of the national primary ambient air quality standard for such air 
pollutant in the area concerned for at least 10 years after the 
redesignation.

    It is clear that the maintenance plan for ``the area concerned'' 
and for which the Commonwealth of Kentucky has submitted a request is 
for a portion of the Cincinnati nonattainment area, and that is the 
only part of the area for which it has power to make a request and to 
promulgate planning and control requirements. Moreover, section 175A 
clearly treats each state's maintenance plan responsibilities as 
discrete obligations of that state over the area within its 
jurisdiction. (See also responses to Comments 2 and 4 above.) Section 
107(d)(3)(v) provides, as a prerequisite to redesignation, that: ``The 
State containing such area has met all requirements applicable to the 
area under section 110 and part D.'' This section plainly shows that 
Congress meant for EPA to evaluate whether the State requesting 
redesignation of an area has met the applicable requirements for that 
area, and that this requirement applies in the context of the State 
containing the area whose redesignation is under consideration. In a 
multistate area, where only one state's portion of the area is being 
considered for redesignation, Congress did not intend to require that 
state to demonstrate, or EPA to evaluate, a separate and distinct set 
of a different state's requirements applicable to the portion not 
contained in the state submitting a redesignation request.
    Comment 4: EPA's approach also undermines the Act's maintenance 
plan and contingency measure requirements. Section 107(d)(3)(E)(iv) 
requires that prior to redesignation, EPA must have fully approved a 
maintenance plan ``for the area'' under section 175A. The maintenance 
plan must contain contingency provisions that require implementation of 
any measures in the pre-redesignation SIP. The lack of adequate RACT 
measures in the SIP means that the entire area lacks an adequate 
continency plan as well. The RACT deficiency threatens the health of 
people throughout the nonattainment area -not just in Ohio.
    Response 4: Pursuant to section 107(d)(3) and section 175A, the 
maintenance plan requirements are separate for each state's portion of 
the area to be redesignated. Section 107 provides that the 
Administrator must fully approve ``a maintenance plan for the area as 
meeting the requirements of section 175A''. The use of the singular ``a 
maintenance plan for the area'' indicates that this provision is 
applicable separately to each portion of a multi-state area. Moreover, 
section 175A, whose requirements are incorporated by 107(d)(3)(iv), 
reinforces this reading by providing that:

    Each State which submits a request under section 107(d) for 
redesignation of a nonattainment area * * * shall also submit a 
revision of the applicable State implementation plan to provide for 
the maintenance of the national primary ambient air quality standard 
for such pollutant in the area concerned for at least 10 years after 
the redesignation. The plan shall contain such additional measures, 
if any as may be necessary to ensure such maintenance.

    Section 175A(d) provides that the maintenance plan must also 
include such enforcement 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.''
    Thus each state separately submits a redesignation request for the 
area under its jurisdiction, and each state has authority only to adopt 
and submit for approval a maintenance plan and a revision of its state 
implementation plan that are applicable to its territory. Since each 
state's obligation under section 107(d) and 175A applies solely to each 
state's implementation plan and each state's separate portion of a 
multi-state nonattainment area, EPA's reading of section 107 is 
consistent with the text, plain meaning, and logic of the redesignation 
and maintenance provisions. In any event, even assuming, contrary to 
the language of the statute, that approval of one state's maintenance 
plan revisions were dependent on the approvability of another state's 
maintenance plan, in the case of Cincinnati both the Ohio and Kentucky 
maintenance plans have been approved by EPA, and those approvals have 
been upheld by the Sixth Circuit. The Sixth Circuit in Wall expressly 
stated: ``We therefore uphold the EPA's approval of the two states' 
clean air maintenance plans for the Cincinnati metropolitan area.'' 
Wall v. EPA, 265 F.3d 426, 437, 438.

[[Page 49603]]

    Any corrections to the Ohio RACT rules do not undermine the 
Kentucky maintenance plan, nor do they undermine the approvability of 
Ohio's plan. The RACT rules at issue were concededly never implemented 
and not necessary for attainment or maintenance, although a commitment 
to adopt them was contained in the contingency measures in the Ohio 
maintenance plan. Plainly no threat to the health of the people of Ohio 
or the rest of the region is posed by redesignation of the Kentucky 
portion of the Cincinnati area.
    Comment 5: Even if EPA could redesignate just a portion of the 
nonattainment area, it cannot do so here, because the states have not 
shown maintenance of the standard for at least 10 years, as is required 
by section 107(d)(3)(E)(iv) and 175A of the Act. Although EPA's prior 
approval of a maintenance plan was upheld by the Wall court, that plan 
addressed only the 10-year period subsequent to the date of the prior 
redesignation. Because EPA is proposing a new redesignation, the states 
must demonstrate maintenance for at least 10 years from the date of 
approval of the new redesignation--something that they have not done 
here.
    Response 5: EPA is not proposing a new redesignation, but rather 
reinstating the redesignation of the Kentucky portion of the Cincinnati 
nonattainment area, based on the Sixth Circuit having upheld all of 
EPA's actions with respect to that redesignation. Moreover, the Court 
upheld the maintenance plan that accompanied that redesignation. Given 
that no deficiencies were found after extensive review by the Sixth 
Circuit, EPA believes that the proper response on remand is 
reinstatement of the redesignation, rather than having the state and 
EPA re-do work as to which no defects were found. Commentors seek to 
have EPA and Kentucky go back to re-do actions that were upheld in 
their entirety by the Court. No legal or public policy purpose is 
served by such waste of resources.
    Comment 6: New information that was not available at the time of 
public comment on EPA's previous redesignation shows that the 
maintenance plan does not in fact assure maintenance of the standard 
for at least 10 years. Modeling conducted by EPA in connection with the 
heavy-duty diesel vehicle and diesel fuel rule shows that the 
Cincinnati area will again violate the ozone standard by 2007, and that 
these violations will continue through 2030 even with emission 
reductions from the diesel rule. This modeling takes into account 
monitoring data through 1999. In its prior redesignation, EPA 
discounted the modeling results of the Agency's Tier 2 rulemaking on 
the ground that it did not consider 1999 monitoring data. Yet EPA's 
diesel rule does consider this data and predicts ozone violations that 
EPA should not ignore or discount. Although the diesel rule Regulatory 
Impact Analysis (RIA) asserts that ``the risk of future exceedances 
occurring in the Cincinnati-Hamilton area is most prevalent after the 
end date of Cincinnati's proposed 10-year maintenance plan (i.e. after 
2010)'', the commentor sees nothing that supports this assertion, and 
asks EPA to explain it. The commentor further requests EPA to explain 
how prevalent the RIA shows the risk of exceedances to be in or before 
and after 2010, and before and after 2012, which the commentor contends 
is the end of the new maintenance period, and how EPA judges such risk. 
The commentor also argues that regardless of whether the risk is more 
prevalent in later years, the RIA still predicts violations prior to 
2010.
    Response 6: The information provided in the heavy-duty diesel rule 
discussed by the commentor does not show that the Cincinnati area will 
again violate the ozone standard by 2007. First, as with the Tier 2 
rule, the focus of the heavy duty rule was not to evaluate the 
attainment or nonattainment of the Cincinnati metropolitan area, but 
rather to reduce emissions from heavy duty trucks nationally.
    As the Court found in Wall, the heavy duty diesel rule, like the 
findings in the Tier 2 rulemaking proceeding, are not applicable here. 
The Wall Court observed that:

    The focus of the Tier 2 proceeding was not specifically to 
evaluate the attainment or nonattainment to the Cincinnati 
metropolitan area, but rather to develop a `major program designed 
to significantly reduce the emissions from new passenger cars and 
light trucks, including pickup trucks, vans, minivans, and sport-
utility vehicles', vehicles whose emissions contribute heavily to 
the generation of ground-level ozone. 65 FR 6698 265 F.3d at 437.

    Similarly, the focus of the heavy duty diesel rule was a national 
program to reduce emissions from heavy duty diesel trucks throughout 
the United States. EPA based its decision to regulate such sources on 
the national need for emission reductions, not on the need of any 
particular area. One of the pieces of information EPA used in its 
review of the need for these reductions was regional photochemical 
ozone modeling performed by EPA for the diesel rule. However, EPA also 
took into consideration other modeling studies developed for SIPs. EPA 
noted that:

    * * * [t]he ozone modeling in the SIP revisions has the 
advantage of using emission inventories that are more specific to 
the area being modeled, and of using meteorological conditions 
selected specifically for each area. Also, the SIP revisions 
included other evidence and analysis, such as analysis of air 
quality and emissions trends, observation-based models that make use 
of data on ozone precursors, alternative rollback analyses, and 
information on the responsiveness of the air quality model. For some 
areas we decided that the predictions of 1-hour ozone exceedences 
from our modeling were less reliable than conclusions that could be 
drawn from this additional evidence and analysis...Thus, these local 
analyses are considered to be more extensive than our own modeling 
for estimating whether there would be NAAQS nonattainment without 
further emission reductions, where interpreted by a weight of 
evidence method which meets our guidance for such modeling. 66 FR 
5013.\2\
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    \2\ As we noted in our previous approval for this nonattainment 
area, with respect to ozone modeling performed for the tier 2 rule 
``we used a regional ozone modeling system to predict ozone in many 
cities, as part of an interpretative process to characterize the 
risk of nonattainment in a large and geographically broad number of 
areas. While ozone predictions and the characterization of the risk 
of nonattainment in individual areas was a step toward reaching a 
conclusion about risks across the group of areas, that 
characterization was not an Agency finding of violations for any 
specific ares.'' 65 FR 37882.

    We reviewed 45 areas with some history of ozone nonattainment to 
determine whether there was a broad need for further emission 
reductions. Based on all of the evidence presented, we determined that 
there is a significant risk that an appreciable number of the 45 areas 
will violate the 1-hour ozone standard between 2007 and 2030. Id at 
5015. We made no determination that any area would violate the ozone 
standard during that time.
    We divided the areas into three sets of areas, based on time of 
attainment demonstration under the Act and recent history regarding 
exceedences. Cincinnati was in the third group, where available ozone 
modeling and other information was ``less clear regarding the need for 
additional reductions.'' In particular, these areas did not have recent 
exceedences, but did have recent data indicating levels within 10 
percent of the ozone NAAQS. Id. at 5015-16.
    With regard to Cincinnati specifically, EPA stated in our RIA for 
the diesel rule:

    The Agency recently redesignated Cincinnati-Hamilton, OH-KY-IN 
to attainment on June 19, 2000. This determination is based on four 
years of clean air quality monitoring data from 1996 to 1999 (1999 
data was not considered in the Tier 2 air quality analysis or the 
proposal for this

[[Page 49604]]

rulemaking), and a downward emissions trend. In today's action, 
Cincinnati-Hamilton is considered to have some risk of registering 
exceedances of the 1-hour ozone standard during the time period when 
the HD vehicle standards would take effect. This determination is 
based on air quality monitoring analysis and 1999 data with 
concentrations within 10 percent of the standard. Given these 
circumstances, the risk of future exceedances occurring in the 
Cincinnati-Hamilton area is most prevalent in the time period beyond 
the end date of Cincinnati's proposed 10-year maintenance plan 
(i.e., after 2010). As discussed in more detail in the relevant 
portions of the response to comment document for the Cincinnati-
Hamilton attainment determination, any emissions and ozone modeling 
system used to predict future ozone involves approximations and 
uncertainties, and are best treated as indicators of risk rather 
than absolute forecasts. Thus a determination made in this rule that 
there is some risk of future exceedances during the relevant time 
period is not inconsistent with EPA approval of Cincinnati's 
redesignation to attainment, and its approval of Cincinnati's 10-
year maintenance plan (citing to Technical Memorandum to EPA Air 
Docket A-99-06, April 20, 2000, Cincinnati Redesignation in 
Attainment and Approval of 10-Year Maintenance Plan). Diesel Rule 
RIA at II-15.

    As this information from the diesel rule shows, EPA believes that 
the modeling performed for the diesel rule was only one factor, and not 
necessarily the most important factor, in determining whether, and to 
what extent, Cincinnati was at risk of nonattainment. It is therefore 
not inconsistent with EPA's action in today's final rule.
    Regarding the commentor's question on the prevalence of risk for 
future exceedences, as EPA's model used in the diesel rule broadly 
predicts a decrease in vehicle-based emissions until 2007, a relative 
leveling off between 2007 and 2020, and an increase after 2020, it 
presumes that without further reductions, emissions and resulting ozone 
concentrations would increase in later years compared to the years 2010 
or 2012. Diesel Rule RIA at II-12 to 13.
    Comment 7: A commentor contends that EPA has not proposed to find 
compliance with the other prerequisites for redesignation in section 
107(d)(3)(E). It is not enough that EPA found compliance with these 
requirements in its July 2000 redesignation rulemaking. EPA itself has 
taken the position that redesignation is precluded if the area violates 
the NAAQS anytime prior to final action on a proposed redesignation. 
Kentucky v. EPA, No. 96-4274 (6th Cir. Sept. 2, 1998). Under the 
statute, EPA must make a determination that all of the statutory 
prerequisites are met at the time of final action on a proposed 
redesignation.
    Response 7: EPA is not re-creating or reproposing a redesignation 
ab initio. EPA is simply reinstating on remand from the Court a 
rulemaking that the Court has upheld in all respects. In this 
rulemaking, EPA found, and the Court agreed, that the Commonwealth of 
Kentucky had met all the requirements for redesignation at the time of 
redesignation. In a separate and discrete rulemaking action 
accompanying the redesignation action, EPA found that the area had 
attained the standard, and issued a formal determination that the area 
had attained the one-hour ozone standard. This determination of 
attainment, which continues in effect to this date, has never been 
withdrawn or even challenged. EPA also approved, and this Court upheld, 
maintenance plans for both portions of the area, which plans continue 
in effect to this date. Under these circumstances, reinstatement of the 
rulemaking is the proper procedure on remand. All other requirements 
that EPA had previously found to satisfy the redesignation criteria 
also remain in effect. EPA is not required to make new findings to 
support EPA actions that have already been taken with respect to 
Kentucky and which the Court has upheld after judicial review.
    Comment 8: Even if EPA could redesignate a portion of the 
nonattainment area, it has no authority to make that redesignation 
retroactive. Section 175A(c) expressly provides that the nonattainment 
area requirements continue to apply ``[u]ntil'' the area is 
redesignated to attainment and a maintenance plan is approved. Here, 
where the Wall court vacated the prior redesignation, that 
redesignation is a nullity. Any subsequent redesignation can be 
prospective only.
    Response 8: EPA is not engaging in retroactive rulemaking. It is 
merely reinstating a rulemaking that the Sixth Circuit did not 
invalidate. While the Sixth Circuit did vacate the redesignation, it 
did so only because of a defect--the lack of implemented RACT rules--
that applies solely to that portion of the Cincinnati ozone 
nonattainment area that lies within the State of Ohio. The court found 
no such defects in the portions of the area situated within Kentucky. 
Moreover, the Clean Air Act specifically provides that EPA may 
redesignate a portion of an area, such as the portion of the Cincinnati 
area that lies within Kentucky, when that portion qualifies for 
redesignation. 42 U.S.C. 7407(d)(3). Because the statute's authority 
extends to partial redesignations, because EPA previously found that 
the area (including the portion within Kentucky) qualifies for 
redesignation, and because the court did not find any defects in 
Kentucky's showing that it was entitled to redesignation, EPA does not 
believe that it is engaged in retroactive rulemaking in reinstating the 
redesignation of the Cincinnati ozone nonattainment area only insofar 
as it applies to the Kentucky portion.
    Comment 9: Sierra Club asks for a public hearing on the proposal. 
They question whether EPA can lawfully finalize its proposal without a 
hearing, when no public hearing was held at the state level. Section 
7410(a)(1),(2).
    Response 9: Since EPA is merely reinstating its action after all 
state proceedings, Federal notice and comment requirements, and 
judicial review have taken place, it does not see any legal or policy 
reason to hold another hearing on requirements that have already been 
determined at all three levels to have been met.
    Comment 10: EPA itself has taken the position that it cannot 
redesignate a portion of the Cincinnati area to attainment unless the 
requirements of section 107(d)(3)(E) have been met throughout the 
entire nonattainment area. In 1996 the Agency expressly rejected an 
argument that the Kentucky portion of the nonattainment area should be 
redesignated to attainment where the only violations of the standard 
being recorded were at monitors in the Ohio portion. EPA stated 
unequivocally that ``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.'' 61 FR 50718, 50719
    Response 10: When EPA in its prior rulemaking disapproved the 
redesignation request for the Cincinnati area, it was because the area 
was not attaining the standard. EPA has consistently required an ozone 
nonattainment area with a single airshed to attain the standard as a 
whole in order to be redesignated. The quoted statement was made in the 
context of that requirement. But EPA has also consistently allowed a 
portion of a multi-state area, where the entire area is attaining the 
standard, to be redesignated, provided the state with authority over 
that portion has met all the control regime requirements for that 
portion. Prior rulemakings applying this interpretation include:

CT portion of the CT-northern NJ-NY CMSA to attainment for carbon 
monoxide. 65 FR 12005-12015 (March 10, 1999) (Direct final rulemaking)

[[Page 49605]]

Huntington, WVA portion of Huntington-Ashland KY ozone nonattainment 
area. 59 FR 65719 (December 21, 1994)
Particulate matter redesignation of Ohio portion of the Steubenville 
area. 65 FR 77308 (December 11, 2000).

    Comment 11: A commentor challenges the public policy and scientific 
basis for treating the Kentucky portion of the Cincinnati-Northern 
Kentucky area as a single airshed. EPA's attempt to bifurcate the Ohio 
and Kentucky portions of the area lacks any rational basis and does not 
comport with research on transport in the Ohio River Valley. EPA's 
action is an unwise departure from treating the area as a single 
airshed.
    Response 11: EPA is not treating the Kentucky portion of Cincinnati 
as a separate airshed. To the contrary, EPA has determined that the 
entire Cincinnati area is attaining the one-hour ozone standard, and 
this is a sine qua non for redesignation. Moreover, the maintenance 
plans for both portions of the area have been approved and EPA's 
approvals upheld by the Sixth Circuit. EPA's action is also in keeping 
with its long-standing policy, once a multi-state area has attained the 
standard, to evaluate separately the control regime requirements for 
each state's portion of the area. See rulemakings listed above and 
response to Comment 10. EPA believes that both the law and public 
policy support its position that once one portion of the area has met 
all the requirements for redesignation, EPA should not hold that 
portion's redesignation hostage until a separate state fulfills the 
control regime requirements for its portion.
    Comment 12: The area is not in compliance with the proposed eight-
hour ozone standard. In May, 2001, the three Northern Kentucky counties 
at issue received a grade of F for their air quality, based on the 
number of days from 1997 to 1999 with ozone readings greater than .085 
ppm. These data do not support the conclusion that the air quality in 
Northern Kentucky is improving.
    Response 12: The area is being redesignated to attainment for the 
one-hour ozone standard, and therefore its status with regard to the 8-
hour ozone standard is not relevant to this proceeding. EPA has 
determined that the area has met the one-hour ozone standard and that 
finding has not been challenged. The Cincinnati area has been in 
continuous attainment for the one-hour standard since 1998. Maintenance 
plans designed to maintain the one-hour ozone standard for both the 
Kentucky and Ohio portions have been approved by EPA, and those 
approvals have been upheld by the Sixth Circuit.
    Comment 13: To justify redesignation, changes must be due to 
permanent and enforceable reductions in emissions. Kentucky's treatment 
of minor and synthetic minor sources for purposes of prevention of 
significant deterioration (PSD) and new source review means that there 
is no limit on these types of changes while the area is designated 
attainment.
    Response 13: EPA is not proposing a new redesignation, but rather 
reinstating the redesignation of the Kentucky portion of the Cincinnati 
nonattainment area, based on the Sixth Circuit having upheld all of 
EPA's actions with respect to that redesignation. EPA's initial 
redesignation to attainment contained a determination that attainment 
was due to permanent and enforceable reductions in emissions. 
Kentucky's treatment of minor and synthetic minor sources for purposes 
of PSD and new source review is consistent with the PSD requirements 
for ozone areas. The Court upheld EPA's approval of the area's 
maintenance demonstration which was premised on PSD being in place.
    Comment 14: Inadequate staffing at Kentucky's Department of Air 
Quality means that changes are not permanently enforceable.
    Response 14: EPA doe not agree with the commentor that the 
Kentucky's Department of Air Quality has inadequate staffing. EPA has 
already determined that the changes in emissions and subsequent ambient 
air quality improvements are due to permanent and enforceable measures. 
The Sixth Circuit did uphold EPA's previous determination. The Court 
also upheld EPA's approval of Kentucky's and Ohio's resource and 
enforcement commitments. Wall v. EPA. 265 F.3d 438.

IV. Final Action

    The EPA is reinstating the attainment redesignation of the one-hour 
ozone NAAQS for the Kentucky portion of the Cincinnati-Hamilton area.

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 approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
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 rule approves pre-existing requirements under state law and 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 approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule 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 Clean Air Act. 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 Clean Air Act. 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

[[Page 49606]]

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. 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. 
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 30, 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

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

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

    Dated: July 19, 2002.
A. Stanley Meiburg,
Acting Regional, Administrator, Region 4.
[FR Doc. 02-19324 Filed 7-30-02; 8:45 am]
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