[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Rules and Regulations]
[Pages 12860-12862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5214]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0210; FRL-9277-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Kentucky; Louisville Nonattainment Area; Determination of 
Attainment of the 1997 Annual Fine Particle Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is determining that the bi-state Louisville (Indiana and 
Kentucky) fine particle (PM2.5) nonattainment area has 
attained the 1997 annual average PM2.5 National Ambient Air 
Quality Standard (NAAQS). This determination 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 
annual PM2.5 NAAQS. Preliminary data for 2010 available to 
date are consistent with continued attainment. As a result of this 
determination, 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 standards shall be suspended for so long as the area 
continues to attain the annual PM2.5 NAAQS.

DATES: This final rule is effective on March 9, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2010-0210. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Environmental Protection Agency, Region 5 office, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604, or in 
Region 4 at the Environmental Protection Agency, Air, Pesticides and 
Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia. 
These facilities are open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding Federal holidays. We recommend that you telephone 
John Summerhays, Environmental Scientist, at (312) 886-6067 before 
visiting the Region 5 office or Joel Huey, Environmental Scientist, at 
(404) 562-9104 before visiting the Region 4 office.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067, 
[email protected]. In Region 4, contact Joel Huey, Environmental 
Scientist, 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, (404) 562-9104, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    This SUPPLEMENTARY INFORMATION section is arranged as follows:

I. What action is EPA taking?
II. What is the background for this action?
III. What did EPA propose?
IV. What does the most recent monitoring data show?
V. What is the effect of this action?
VI. When is this action effective?
VII. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is determining that the Louisville PM2.5 annual 
NAAQS nonattainment area (which includes Jefferson and Bullitt Counties 
in Kentucky and Clark and Floyd Counties and the Madison Township of 
Jefferson County in Indiana) has attained the 1997 annual 
PM2.5 NAAQS. This determination is based upon complete, 
quality-assured, and certified ambient air monitoring data for the 
2007-2009 monitoring period that show that the area has monitored 
attainment of the 1997 annual PM2.5 NAAQS. Preliminary data 
available for 2010 are consistent with continued attainment.

II. What is the background for this action?

    On July 18, 1997 (62 FR 36852), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/

[[Page 12861]]

m\3\) based on a three-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour standard 
of 65 [mu]g/m\3\ (today's action does not address the 24-hour 
standard). See 40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA 
published its air quality designations and classifications for the 1997 
PM2.5 NAAQS based upon air quality monitoring data from 
those monitors for calendar years 2001-2003. These designations became 
effective on April 5, 2005. The Louisville area was designated 
nonattainment for the 1997 PM2.5 NAAQS. See 40 CFR 81.315 
(Indiana) and 40 CFR 81.318 (Kentucky).
    On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual 
PM2.5 NAAQS at 15.0 [mu]g/m\3\ based on a three-year average 
of annual mean PM2.5 concentrations, and promulgated a 24-
hour standard of 35 [mu]g/m\3\ based on a three-year average of the 
98th percentile of 24-hour concentrations. On November 13, 2009, EPA 
designated the Louisville area as attainment for the 2006 24-hour 
standard (74 FR 58688). In that action, EPA also clarified the 
designations for the NAAQS promulgated in 1997, stating that the 
Louisville area was designated as nonattainment for the annual 
standards but attainment for the 24-hour standards. Thus, today's 
action does not address attainment of either the 1997 or the 2006 24-
hour standards.
    In response to legal challenges of the annual standards promulgated 
in 2006, the U.S. Court of Appeals for the District of Columbia Circuit 
(DC Circuit) remanded these standards 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 standards are essentially identical, 
attainment of the 1997 annual standards would also indicate attainment 
of the remanded 2006 annual standards.
    On April 25, 2007 (72 FR 20664), EPA promulgated its 
PM2.5 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 PM2.5 standards. This rule, at 
40 CFR 51.1004(c), specifies some of the regulatory consequences of 
attaining the standards, as discussed below.

III. What did EPA propose?

    EPA proposed that the Louisville area (including portions in 
Indiana and Kentucky) has attained the 1997 PM2.5 NAAQS. EPA 
published this proposed determination on September 14, 2010, at 75 FR 
55725. Further details regarding the proposal are available in the 
proposed rule. EPA's proposed action provided a 30-day public comment 
period. We did not receive any comments.

IV. What does the most recent monitoring data show?

    EPA examined monitoring data for 2010 that are available to date in 
the EPA Air Quality System (AQS) database, but not yet certified. While 
these data are insufficient to represent full year average 
concentrations, all sites within the area average below 15.0 [mu]g/m\3\ 
and thus the available data suggest that this area continues to attain 
the 1997 annual PM2.5 NAAQS.

V. What is the effect of this action?

    On the basis of this review, EPA has determined that the Louisville 
area has attained the 1997 annual PM2.5 NAAQS based on 
complete, quality-assured and certified 2007-2009 data. Data available 
for 2010 that are in the EPA AQS database but not yet certified suggest 
that the area continues to attain the 1997 annual PM2.5 
NAAQS. As a result of this determination, under the provisions of EPA's 
PM2.5 implementation rule (see 40 CFR 51.1004(c)), the 
requirements for Indiana and Kentucky to submit attainment 
demonstrations and associated RACM, RFP plans, contingency measures, 
and any other planning SIPs related to attainment of the 1997 annual 
PM2.5 NAAQS for the Louisville PM2.5 
nonattainment area are suspended for so long as the area continues to 
attain the 1997 annual PM2.5 NAAQS. This suspension will 
continue until such time, if any, that EPA subsequently determines that 
the area has violated the 1997 annual PM2.5 NAAQS.
    If EPA subsequently determines, after notice-and-comment rulemaking 
in the Federal Register, that the area has violated the 1997 annual 
PM2.5 NAAQS, the basis for the suspension of the specific 
requirements, set forth at 40 CFR 51.1004(c), would no longer exist for 
the pertinent area, and EPA would take action to withdraw the 
determination and direct the pertinent area to address the suspended 
requirements.
    The determination that the air quality data show attainment of the 
1997 annual PM2.5 NAAQS is not equivalent to the 
redesignation of the area to attainment for the 1997 annual 
PM2.5 NAAQS under section 107(d)(3) of the Clean Air Act 
(CAA). Further, finalizing this action does not involve approving 
maintenance plans for the area as required under section 175A of the 
CAA, nor does it involve a determination that the area has met all 
requirements for a redesignation. The designation status of the area 
will remain nonattainment for the 1997 annual PM2.5 NAAQS 
until such time as EPA determines that the area meets the CAA 
requirements for redesignation to attainment for that standard.

VI. When is this action effective?

    EPA finds that there is good cause for this determination to become 
effective on the date of publication of this action in the Federal 
Register, because a delayed effective date is unnecessary due to the 
nature of the action. The expedited effective date for this action is 
authorized under both 5 U.S.C. 553(d)(1), which provides that rule 
actions may become effective less than 30 days after publication if the 
rule ``grants or recognizes an exemption or relieves a restriction,'' 
and 5 U.S.C. 553(d)(3), which allows an effective date less than 30 
days after publication ``as otherwise provided by the agency for good 
cause found and published with the rule.'' As noted above, this 
determination of attainment will result in a suspension of the 
requirements for the Louisville area to submit an attainment 
demonstration, a RFP plan, section 172(c)(9) contingency measures, and 
any other planning SIPs related to attainment of the 1997 annual 
PM2.5 NAAQS for so long as the area continues to attain the 
PM2.5 NAAQS. The suspension of these requirements is 
sufficient reason to allow an expedited effective date of this rule 
under 5 U.S.C. 553(d)(1). In addition, the suspension of the 
obligations of Indiana and Kentucky to make submissions for these 
requirements provides good cause to make this rule effective on the 
date of publication of this action in the Federal Register, pursuant to 
5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed 
in 5 U.S.C. 553(d) is to give affected parties a reasonable time to 
adjust their behavior and prepare before the final rule takes effect. 
Where, as here, the final rule suspends requirements rather than 
imposing obligations, affected parties, such as the Louisville area, do 
not need time to adjust and prepare before the rule takes effect.

VII. Statutory and Executive Order Reviews

    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 not subject to

[[Page 12862]]

Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action makes a determination based on air 
quality data and results in the suspension of certain Federal 
requirements. 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 makes a determination based on air quality 
data, and results in the suspension of certain Federal requirements, it 
does 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).
    This rule also does not have tribal applications 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), because it merely makes a determination 
based on air quality data and results in the suspension of certain 
Federal requirements, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
rule also is not subject to Executive Order 13045 ``Protection of 
Children from Environmental Health Risks'' (62 FR 19885, April 23, 
1997) because it determines that air quality in the affected area is 
meeting Federal standards.
    The requirements of 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply because it 
would be inconsistent with applicable law for EPA, when determining the 
attainment status of an area, to use voluntary consensus standards in 
place of promulgated air quality standards and monitoring procedures to 
otherwise satisfy the provisions of the CAA. This rule does not impose 
an information collection burden under the provisions of the Paper 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    Under Executive Order 12898, EPA finds that this rule, pertaining 
to the determination of attainment of the fine particle standards for 
the Louisville (Indiana and Kentucky) area, involves determination of 
attainment based on air quality data and will not have 
disproportionately high and adverse human health or environmental 
effects on any communities in the area, including minority and low-
income communities.
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because there is no federally recognized Indian country located in the 
states, and EPA notes that it will not impose substantial direct costs 
on tribal governments or preempt tribal law.
    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 these actions 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 rules in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. These actions are not ``major rules'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of these actions must be filed in the United States Court of Appeals 
for the appropriate circuit by May 9, 2011. Filing a petition for 
reconsideration by the Administrator of these final rules does not 
affect the finality of this action 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. These actions may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter, Intergovernmental relations, Reporting 
and recordkeeping requirements.

    Dated: January 12, 2011.
Susan Hedman,
Regional Administrator, Region 5.
    Dated: February 25, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart P--Indiana

0
2. Section 52.776 is amended by adding paragraph (t) to read as 
follows:


Sec.  52.776  Control strategy: Particulate matter.

* * * * *
    (t) Determination of Attainment. EPA has determined, as of March 9, 
2011, that the Louisville, IN-KY PM2.5 nonattainment area 
has attained the 1997 PM2.5 NAAQS. These determinations, in 
accordance with 40 CFR 51.1004(c), suspend the requirements for this 
area to submit an attainment demonstration, associated reasonably 
available control measures, reasonable further progress, contingency 
measures, and other plan elements related to attainment of the 
standards for as long as the area continues to meet the 1997 
PM2.5 NAAQS.

Subpart S--Kentucky

0
3. Section 52.933 is amended by designating the existing text as 
paragraph (a) and by adding paragraph (b) to read as follows:


Sec.  52.933  Control strategy: Sulfur oxides and particulate matter.

* * * * *
    (b) Determination of Attainment. EPA has determined, as of March 9, 
2011, that the Louisville, IN-KY PM2.5 nonattainment area 
has attained the 1997 PM2.5 NAAQS. These determinations, in 
accordance with 40 CFR 51.1004(c), suspend the requirements for this 
area to submit an attainment demonstration, associated reasonably 
available control measures, reasonable further progress, contingency 
measures, and other plan elements related to attainment of the 
standards for as long as the area continues to meet the 1997 
PM2.5 NAAQS.

[FR Doc. 2011-5214 Filed 3-8-11; 8:45 am]
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