[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95041-95043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31023]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2016-0526; FRL-9957-39-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 ``Area'').

DATES: This rule will be effective January 26, 2017.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2016-0526. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information may not be publicly available, i.e., 
Confidential Business Information 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 www.regulations.gov or in hard 
copy at the 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. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., 
excluding federal holidays.

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

SUPPLEMENTARY INFORMATION:

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 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.
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    \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].
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    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,

[[Page 95042]]

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.
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    \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.
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    In a notice of proposed rulemaking (NPRM) published on October 21, 
2016 (81 FR 72755), EPA proposed to conclude that Kentucky's Subpart 1 
RACM determination meets the requirements of CAA section 172(c)(1) and 
to incorporate this RACM determination into the SIP. The details of 
Kentucky's SIP revision and the rationale for EPA's action are 
explained in the NPRM. Comments on the proposed rulemaking were due on 
or before November 21, 2016. EPA did not receive any adverse comments 
on the proposed action.

II. Final Action

    EPA is approving Kentucky's August 9, 2016, SIP revision addressing 
RACM requirements for the 1997 Annual PM2.5 NAAQS for the 
Kentucky portion of the bi-state Louisville Area. EPA has concluded 
that Kentucky's Subpart 1 RACM determination meets the requirements of 
CAA section 172(c)(1) and is incorporating this RACM determination into 
the SIP.

III. 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 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this 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 Clean Air Act; 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.
    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 action 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 27, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule 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. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: December 15, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.


0
40 CFR part 52 is amended as follows:

PART 52--[APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS]

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

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

Subpart S--Kentucky

0
2. Section 52.920(e) is amended by adding a new entry for ``RACM for 
the Kentucky portion of Louisville, KY-IN

[[Page 95043]]

Area for the 1997 Annual PM2.5 NAAQS'' at the end of the 
table to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-Regulatory Provisions
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                                                             State
    Name of non-regulatory SIP          Applicable      submittal date/
            provision                 geographic or        effective     EPA approval date       Explanations
                                    nonattainment area       date
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                                                  * * * * * * *
RACM for the Kentucky portion of   Bullitt and              08/09/2016  12/27/2016, [Insert
 Louisville, KY-IN Area for the     Jefferson Counties.                  citation of
 1997 Annual PM2.5 NAAQS.                                                publication].
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[FR Doc. 2016-31023 Filed 12-23-16; 8:45 am]
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