[Federal Register Volume 81, Number 204 (Friday, October 21, 2016)]
[Proposed Rules]
[Pages 72755-72757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25433]



40 CFR Part 52

[EPA-R04-OAR-2016-0526; FRL-9954-34-Region 4]

Air Plan Approval; KY; RACM Determination for the KY Portion of 
the Louisville Area 1997 Annual PM2.5

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
Commonwealth of Kentucky, through the Kentucky Division for Air Quality 
(KDAQ) on August 9, 2016, that addresses reasonably available control 
measures (RACM) for the Kentucky portion of the Louisville, KY-IN, 
nonattainment area for the 1997 Annual fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS) 
(hereinafter referred to as the ``bi-state Louisville Area'' or 

DATES: Comments must be received on or before November 21, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2016-0526 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Madolyn Sanchez, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Sanchez can be reached by telephone at (404) 562-9644 
or via electronic mail at [email protected].


I. Background

    In 1997, EPA promulgated the first air quality standards for 
PM2.5. EPA promulgated an annual standard at a level of 15 
micrograms per cubic meter ([mu]g/m\3\) (based on a 3-year average of 
annual mean PM2.5 concentrations) and a 24-hour standard of 
65 [mu]g/m\3\ (based on a 3-year average of the 98th percentile of 24-
hour concentrations). See 62 FR 38652 (July 18, 1997). On January 5, 
2005 (70 FR 944), and supplemented on April 14, 2005 (70 FR 19844), EPA 
designated the bi-state Louisville Area as nonattainment for the 1997 
Annual PM2.5 NAAQS. In that

[[Page 72756]]

action, EPA defined the bi-state Louisville Area to include Bullitt and 
Jefferson Counties in Kentucky as well as Clark and Floyd Counties and 
a portion of Jefferson County (Madison Township) in Indiana. 
Designation of an area as nonattainment for PM2.5 starts the 
process for a state to develop and submit to EPA a SIP revision under 
title I, part D of the Clean Air Act (CAA or Act). This SIP revision 
must include, among other elements, a demonstration of how the NAAQS 
will be attained in the nonattainment area as expeditiously as 
practicable, but no later than the attainment date required by the CAA.
    Originally, EPA designated all 1997 PM2.5 NAAQS areas 
under title I, part D, subpart 1 (hereinafter ``Subpart 1''). Subpart 
1, comprised of CAA sections 171-179B, sets forth the basic 
nonattainment requirements applicable to all nonattainment areas. 
Section 172(c) contains the general SIP requirements for these areas, 
including RACM requirements under section 172(c)(1). On April 25, 2007 
(72 FR 20586), EPA promulgated a rule, codified at 40 CFR part 51, 
subpart Z, to implement the 1997 PM2.5 NAAQS under Subpart 1 
(hereinafter referred to as the ``1997 PM2.5 Implementation 
Rule'').\1\ On December 3, 2008, Kentucky submitted an attainment 
demonstration SIP revision for the Area that addressed RACM and certain 
other section 172(c) elements including a reasonable further progress 
(RFP) plan, base-year and attainment-year emissions inventories, and 
contingency measures for the Area. This SIP revision included a section 
172(c)(1) RACM determination that there were no potential emissions 
control measures that, if considered collectively, would advance the 
attainment date by one year or more.

    \1\ On January 4, 2013, in Natural Resources Defense Council v. 
EPA, 706 F.3d 428 (D.C. Cir. 2013), the United State Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) found 
that EPA erred in implementing the 1997 PM2.5 NAAQS 
pursuant solely to the general implementation provisions of Subpart 
1 rather than the particulate matter-specific provisions in title I, 
part D, subpart 4. The court remanded both the 1997 PM2.5 
Implementation Rule and the final rule entitled ``Implementation of 
the New Source Review (NSR) Program for Particulate Matter Less than 
2.5 Micrometers (PM2.5)'' (73 FR 28321, May 16, 2008) to 
EPA to address this error. In 2014, EPA finalized a rule classifying 
areas previously designated nonattainment for the 1997 and/or 2006 
fine particle pollution standards under Subpart 1, including the bi-
state Louisville Area, as ``Moderate'' nonattainment areas under 
subpart 4 and setting deadlines for SIP submissions addressing the 
requirements of subpart 4. See 79 FR 31566 (June 2, 2014) 
[hereinafter 2014 Rule].

    In 2011, EPA determined that the bi-state Louisville Area had 
attained the 1997 Annual PM2.5 NAAQS based upon complete, 
quality-assured, and certified ambient air monitoring data for the 
2007-2009 period. See 76 FR 55544 (September 7, 2011); 40 CFR 
52.929(b). As a result of this determination and in accordance with 40 
CFR 51.1004(c), the requirements for the Area to submit attainment 
demonstrations and associated RACM, RFP plans, contingency measures, 
and other planning SIP revisions related to attainment of the 1997 
Annual PM2.5 NAAQS are suspended for so long as: The area is 
redesignated to attainment, at which time the requirements no longer 
apply; or EPA determines that the area has violated the 
PM2.5 NAAQS, at which time the area is again required to 
submit such plans. Therefore, Kentucky withdrew the aforementioned 
PM2.5 attainment demonstration SIP revision except for the 
portion addressing emissions inventory requirements under section 
172(c)(3). EPA later approved Kentucky's 2002 base-year emissions 
inventory for the Louisville Area pursuant to section 172(c)(3) on 
August 2, 2012 (77 FR 45956).
    On March 5, 2012, Kentucky submitted a request to redesignate the 
Kentucky portion of the bi-state Louisville Area to attainment for the 
1997 Annual PM2.5 NAAQS.\2\ As the result of a 2015 decision 
from the United States Court of Appeals for the Sixth Circuit (Sixth 
Circuit) in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015) requiring 
a SIP-approved Subpart 1 RACM determination prior to the redesignation 
of a 1997 Annual PM2.5 NAAQS nonattainment area, Kentucky 
submitted a SIP revision on August 9, 2016, to address the section 
172(c)(1) RACM requirements and to support the Commonwealth's March 5, 
2012, redesignation request. In that SIP revision, the Commonwealth 
determined that no additional control measures are necessary in the 
Area to satisfy the CAA section 172(c)(1) RACM requirements. Kentucky's 
determination and the Sixth Circuit's decision are discussed in further 
detail below.

    \2\ Kentucky submitted its redesignation request prior to the 
aforementioned ruling in Natural Resources Defense Council v. EPA. 
As discussed in the 2014 Rule, EPA's position is that this ruling 
does not apply retroactively. See 79 FR at 31568.

II. What action is EPA proposing to take?

    EPA is proposing to determine that Kentucky's Subpart 1 RACM 
determination meets the requirements of section 172(c)(1) of the CAA 
and is proposing to approve this RACM determination into the SIP for 
the reasons discussed in Section III below.

III. What is EPA's analysis of the Commonwealth's RACM submittal?

A. Relationship Between Subpart I RACM and Redesignation Criteria

    EPA does not believe that Subpart 1 nonattainment planning 
requirements designed to provide for attainment, including RACM, are 
``applicable'' for purposes of CAA section 107(d)(3)(E)(ii) once an 
area is attaining the NAAQS and, therefore, does not believe that these 
planning requirements must be approved before EPA can redesignate an 
area to attainment. See, e.g., 57 FR 13498, 13564 (April 16, 1992); 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division (September 4, 1992). However, the aforementioned 
Sixth Circuit decision in Sierra Club v. EPA is inconsistent with this 
longstanding interpretation regarding section 107(d)(3)(E)(ii). In its 
decision, the Court vacated EPA's redesignation of the Indiana and Ohio 
portions of the Cincinnati-Hamilton nonattainment area to attainment 
for the 1997 PM2.5 NAAQS because EPA had not yet approved 
Subpart 1 RACM for the Cincinnati Area into the Indiana and Ohio SIPs. 
The Court concluded that ``a State seeking redesignation `shall provide 
for the implementation' of RACM/RACT [reasonably available control 
technology], even if those measures are not strictly necessary to 
demonstrate attainment with the PM2.5 NAAQS. . . . If the 
State has not done so, EPA cannot `fully approve' the area's SIP, and 
redesignation to attainment status is improper.'' Sierra Club, 793 F.3d 
at 670.
    EPA is bound by the Sixth Circuit's decision in Sierra Club v. EPA 
within the Court's jurisdiction.\3\ Although EPA continues to believe 
that Subpart 1 RACM is not an applicable requirement under section 
107(d)(3)(E) for an area that has already attained the 1997 Annual 
PM2.5 NAAQS, EPA is proposing to approve Kentucky's RACM 
determination into the SIP pursuant to the Court's decision.\4\

    \3\ The states of Kentucky, Michigan, Ohio, and Tennessee are 
located within the Sixth Circuit's jurisdiction.
    \4\ The EPA Region 4 Regional Administrator signed a memorandum 
on July 20, 2015, seeking concurrence from the Director of EPA's Air 
Quality Policy Division (AQPD) in the Office of Air Quality Planning 
and Standards to act inconsistent with EPA's interpretation of CAA 
sections 107(d)(3)(E) and 172(c)(1) when taking action on pending 
and future redesignation requests in Kentucky and Tennessee because 
the Region is bound by the Sixth Circuit's decision in Sierra Club 
v. EPA. The AQPD Director issued her concurrence on July 22, 2015. 
This memorandum is not required to satisfy EPA's regional 
consistency regulations. See 40 CFR 56.5(b)(1); 81 FR 51102 (August 
3, 2016).


[[Page 72757]]

B. Subpart 1 RACM Requirements

    Subpart 1 requires that each attainment plan ``provide for the 
implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emission 
from the existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available control technology), 
and shall provide for attainment of the national primary ambient air 
quality standards.'' See CAA section 172(c)(1). EPA has consistently 
interpreted this provision to require only implementation of potential 
RACM measures that could advance attainment.\5\ Thus, when an area is 
already attaining the standard, no additional RACM measures are 
required. EPA's interpretation that Subpart 1 requires only the 
implementation of RACM measures that would advance attainment was 
upheld by the United States Court of Appeals in the Fifth Circuit \6\ 
and by the United States Court of Appeals for the D.C. Circuit.\7\

    \5\ This interpretation was adopted in the General Preamble, see 
57 FR 13498 (April 16, 1992), and has been upheld as applied to the 
Clean Data Policy, as well as to nonattainment SIP submissions. See 
NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 
F.3d 155 (D.C. Cir. 2002).
    \6\ Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002).
    \7\ Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002); 
NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009).

C. Proposed Action

    In its August 9, 2016, SIP submission, the Commonwealth determined 
that no additional control measures are necessary in the Area to 
satisfy the CAA section 172(c)(1) RACM requirement because the Area has 
attained the 1997 Annual PM2.5 NAAQS. As noted above, EPA 
has determined that the Area attained the standard by the April 5, 
2010, attainment date and that no additional measures are required to 
satisfy Subpart 1 RACM when an area is attaining the standard. 
Therefore, EPA proposes to agree with the Commonwealth's analysis, to 
approve Kentucky's SIP revision, and to incorporate the section 
172(c)(1) RACM determination into the SIP.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: October 11, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-25433 Filed 10-20-16; 8:45 am]