Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-Hamilton 1997 8-Hour Ozone Nonattainment Area to Attainment

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve a request submitted on January 29, 2010, from the Commonwealth of Kentucky, through the Kentucky Energy and Environment Cabinet, Division for Air Quality (DAQ), to redesignate the Kentucky portion of the tri-state Cincinnati-Hamilton 8-hour ozone nonattainment area (hereafter referred to as “the Cincinnati-Hamilton Area”) to attainment for the 1997 8-hour ozone national ambient air quality standards (NAAQS). The Cincinnati-Hamilton Area is comprised of Boone, Campbell and Kenton Counties in Kentucky (hereafter also referred to as “Northern Kentucky”); Butler, Clermont, Clinton, Hamilton and Warren Counties in Ohio; and a portion of Dearborn County in Indiana. EPA's approval of the redesignation request is based on the determination that Northern Kentucky has met the criteria for redesignation to attainment set forth in the Clean Air Act (CAA), including the determination that the Cincinnati-Hamilton Area has attained the 1997 8-hour ozone NAAQS. Additionally, EPA is approving a revision to the Kentucky State Implementation Plan (SIP) including the 1997 8-hour ozone maintenance plan for Northern Kentucky that contains the new 2015 and 2020 motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO_X) and volatile organic compounds (VOC) for Northern Kentucky. This action also approves the emissions inventory submitted with the maintenance plan. EPA has previously approved, in a separate rulemaking, similar redesignation requests submitted by the States of Ohio and Indiana for their portions of this 1997 8-hour ozone area.

DATES:

Effective Date: This rule will be effective August 5, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2010-0134. 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 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 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. 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 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Jane Spann, 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. Jane Spann may be reached by phone at (404) 562-9029 or via electronic mail at spann.jane@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Is the Background for the Actions?

II. What Actions Is EPA Taking?

III. Why Is EPA Taking These Actions?

IV. What Are the Effects of These Actions?

V. Response to Comments

VI. Final Action

VII. Statutory and Executive Order Reviews

I. What Is the Background for the Actions?

On January 29, 2010, the Commonwealth of Kentucky, through DAQ, submitted a request to redesignate Northern Kentucky (as a portion of the Cincinnati-Hamilton Area) to attainment for the 1997 8-hour ozone NAAQS, and for EPA approval of the Kentucky SIP revision containing a maintenance plan for Northern Kentucky. In an action published on May 12, 2010 (75 FR 26685), EPA proposed to approve the redesignation of Northern Kentucky to attainment. EPA also proposed approval as a SIP revision of Kentucky's plan for maintaining the 1997 8-hour NAAQS, including the emissions inventory submitted pursuant to CAA section 172(c)(3); and the NOX and VOC MVEBs for Northern Kentucky contained in the maintenance plan. The background for these rulemakings is set forth in detail in EPA's May 12, 2010 proposal.

The MVEBs included in the maintenance plan are as follows:

In its May 12, 2010, proposed action, EPA stated that the adequacy public comment period on these MVEBs (as contained in Kentucky's submittal) began on February 3, 2010, and closed on March 5, 2010. No comments were received during this public comment period, and therefore, EPA deems the new MVEBs for Northern Kentucky adequate for the purposes of transportation conformity. In a separate action, EPA previously found adequate and approved the MVEB's for the Ohio and Indiana portions of the Cincinnati-Hamilton Area (75 FR 26118, May 11, 2010).

As we stated in the May 12, 2010, proposal, this redesignation addresses Northern Kentucky's status solely with respect to the 1997 8-hour ozone NAAQS, for which designations were finalized on April 30, 2004 (69 FR 23857). In 2008, EPA issued a revised 8-hour ozone NAAQS, which is currently under reconsideration. Today's rulemaking concerns only the 1997 8-hour ozone NAAQS, and does not address or affect the 2008 or any subsequently revised and promulgated ozone NAAQS.

In this final rulemaking, EPA is noting a correction for the site identification numbers listed in EPA's May 12, 2010 (75 FR 26685), proposed approval. Specifically, the air quality monitor site identification number (ID) listed in Table 2 (Annual 4th Max High and Design Value Concentration for 8-Hour Ozone for the Cincinnati-Hamilton OH-KY-IN Area (parts per million)) of EPA's May 12, 2010 proposed rulemaking, column 3 labeled “Monitor” were incorrect for the Boone and Campbell County, Kentucky entries. The site monitor IDs should read: Boone County—KY 338 & Lower River Road 21-015-0003 and Campbell County—Highland Heights 21-037-3002. Please see below for the corrected table.

II. What Actions Is EPA Taking?

In today's rulemaking, EPA is finalizing several related actions. EPA is approving: (1) Kentucky's redesignation request to change the legal designation of the Northern Kentucky portion of the Cincinnati-Hamilton Area from nonattainment to attainment for the 1997 8-hour ozone NAAQS; (2) Kentucky's 1997 8-hour ozone maintenance plan for Northern Kentucky, including MVEB's (such approval being one of the CAA criteria for redesignation to attainment status); and (3) Kentucky's emissions inventory which was submitted pursuant to CAA section 172(c)(3). The maintenance plan is designed to help keep the Cincinnati-Hamilton Area in attainment for the 1997 8-hour ozone NAAQS through 2020. EPA's approval of the redesignation request is based on EPA's determination that Northern Kentucky meets the criteria for redesignation set forth in CAA, sections 107(d)(3)(E) and 175A, including EPA's determination that the Cincinnati-Hamilton Area has attained the 1997 8-hour ozone NAAQS. EPA's analyses of Kentucky's redesignation request, emissions inventory, and maintenance plan are described in detail in the May 12, 2010 proposed rule (75 FR 26685).

Consistent with the CAA, the maintenance plan that EPA is approving also includes 2015 and 2020 MVEBs for NO_X and VOC for Northern Kentucky. In this action, EPA is approving these NO_X and VOC MVEBs for the purposes of transportation conformity. For regional emission analysis years that involve the year 2015, and any year between 2015 and 2020, the new 2015 MVEBs are the applicable budgets (for the purpose of conducting transportation conformity analyses). For regional emission analysis years that involve the year 2020 and beyond, the applicable budgets, for the purpose of conducting transportation conformity analyses, are the new 2020 MVEBs.

III. Why Is EPA Taking These Actions?

EPA has determined that the Cincinnati-Hamilton Area has attained the 1997 8-hour ozone NAAQS and has also determined that all other criteria for the redesignation of Northern Kentucky (as part of the Cincinnati-Hamilton Area) from nonattainment to attainment of the 1997 8-hour ozone NAAQS have been met. See section 107(d)(3)(E) of the CAA. EPA is also taking final action to approve the maintenance plan for Northern Kentucky as meeting the requirements of sections 175A and 107(d)(3)(E) of the CAA, and the emissions inventory as meeting the requirements of section 172(c)(3) of the CAA. Furthermore, EPA is approving the new NO_X and VOC MVEBs for the years 2015 and 2020 as contained in Kentucky's maintenance plan for Northern Kentucky because these MVEBs are consistent with maintenance for the Cincinnati-Hamilton Area. In the May 12, 2010, proposal to redesignate Northern Kentucky, EPA described the applicable criteria for redesignation to attainment and its analysis of how those criteria have been met. The bases and rationale for EPA's findings and actions are set forth in the proposed rulemaking, and in the responses to comments and other discussion in this final rulemaking.

IV. What Are the Effects of These Actions?

Approval of the redesignation request changes the legal designation of Boone, Campbell and Kenton Counties in Kentucky (the Kentucky portion of the Cincinnati-Hamilton Area) from nonattainment to attainment for the 1997 8-hour ozone NAAQS. 40 CFR part 81. EPA is also approving as a revision to the Kentucky SIP, Kentucky's plan for maintaining the 1997 8-hour ozone NAAQS in the Cincinnati-Hamilton Area through 2020. The maintenance plan includes contingency measures to remedy possible future violations of the 1997 8-hour ozone NAAQS, and establishes NO_X and VOC MVEBs for the years 2015 and 2020 for Northern Kentucky. Additionally, this action approves the emissions inventory for Northern Kentucky pursuant to section 172(c)(3) of the CAA.

V. Response to Comments

EPA received one set of comments from the Allegheny County Health Department on EPA's proposal. The comment received addresses minor arithmetic errors in tabulating totals in some maintenance plan emissions inventories. EPA's response to the comment is provided below.

Comment: The Commenter, the Allegheny County Health Department states: “In Table 3 of the proposed approval Federal Register the nonroad total for 2018 VOC should be 7.43 tons per day (tpd) not 7.68 tpd and the 2018 VOC total for all sources should be 40.10 tpd when the nonroad total is corrected.”

Response: EPA acknowledges the Commentor's correction for the total nonroad VOC and also notes that there were additional typographical errors in the proposed rule with regard to some of the totaled emission categories. See Table 3 and 4 below for the corrected VOC and NO_X emissions totals. The corrected numbers are underlined. None of these corrections changes the downward trend of total Northern Kentucky VOC and NO_X emissions from 2008 to 2020, and in some cases the revisions reflect lower emissions totals than were indicated in EPA's proposed rule. With these corrections, as in EPA's original proposal, Kentucky's plan for Northern Kentucky continues to demonstrate maintenance for the initial maintenance period with a total of 3.89 tpd reduction in VOC emissions, and 14.48 tpd reduction in NO_X emissions from the 2008 baseline to the 2020 outyear.

EPA has determined that the Commonwealth's redesignation request meets all of the CAA redesignation criteria for the 1997 8-hour ozone NAAQS. EPA's May 12, 2010, proposed rulemaking, as supplemented by today's notice, specifically addresses each of the criteria and provides detailed analysis of how they are met.

VI. Final Action

After evaluating Kentucky's redesignation request and comments received, EPA is taking final action to approve the redesignation and change the legal designation of Boone, Campbell and Kenton Counties in Kentucky (as part of the Cincinnati-Hamilton Area) from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA has already taken final action to approve the redesignation requests, emission inventories and maintenance plans for the Ohio and Indiana portions of this Area in a separate but coordinated action. See 75 FR 26118. Through this action, EPA is also approving into the Kentucky SIP, the 1997 8-hour ozone maintenance plan for Northern Kentucky, which includes the new NOx MVEBs of 14.40 tpd for 2015, and 13.27 tpd for 2020; and new VOC MVEBs of 9.76 tpd for 2015, and 10.07 tpd for 2020. Additionally, EPA is approving the emissions inventory for Northern Kentucky pursuant to section 172(c)(3) of the CAA. Finally, EPA is finding the new Northern Kentucky MVEBs are adequate for the purposes of transportation conformity. Within 24 months from the effective date of EPA's adequacy finding for the MVEBs, the transportation partners will need to demonstrate conformity to the new NOx and VOC MVEBs pursuant to 40 CFR 93.104(e).

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which after publication it provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 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.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the Commonwealth of various requirements for the Northern Kentucky Area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

VII. 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. 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 Order 12866 (58 FR 51735, October 4, 1993);
• 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, 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 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 October 4, 2010. 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Intergovernmental relations, and Volatile organic compounds

40 CFR Part 81

• Environmental protection and Air pollution control

Accordingly, 40 CFR parts 52 and 81 are amended as follows:

PART 52—[AMENDED]

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

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

Subpart S—Kentucky

2. Section 52.920(e) is amended by adding a new entry at the end of the table for “Northern Kentucky 8-Hour Ozone Maintenance Plan” to read as follows:

PART 81—[AMENDED]

3. The authority citation for part 81 continues to read as follows:

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

4. In § 81.318, the table entitled “Kentucky-Ozone (8-Hour Standard)” is amended under “Cincinnati-Hamilton, OH-KY-IN” by revising the entries for “Boone County,” “Campbell County,” and “Kenton County” to read as follows: