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[Federal Register Volume 76, Number 241 (Thursday, December 15, 2011)]
[Rules and Regulations]
[Pages 77903-77909]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32058]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2010-0937-201164; FRL-9506-3]

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, OH-KY-IN 1997 Annual 
Fine Particulate Matter Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a request submitted on 
January 27, 2011, from the Commonwealth of Kentucky, through the 
Kentucky Energy and Environment Cabinet, Division for Air Quality 
(DAQ), to redesignate the Kentucky portion of the Cincinnati-Hamilton, 
Ohio-Kentucky-Indiana (hereafter referred to as the ``Tri-state 
Cincinnati-Hamilton Area'') fine particulate matter (PM2.5) 
nonattainment area to attainment for the 1997 Annual PM2.5 
National Ambient Air Quality Standards (NAAQS). The Tri-state 
Cincinnati-Hamilton Area is comprised of Boone, Campbell, and Kenton 
Counties in Kentucky (hereafter referred to as the ``Northern Kentucky 
Area'' or ``Area''); Butler, Clermont, 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 Kentucky 
has met the criteria for redesignation to attainment set forth in the 
Clean Air Act (CAA or Act). Additionally, EPA is approving a revision 
to the Kentucky State Implementation Plan (SIP) to include the 1997 
Annual PM2.5 maintenance plan for the Northern Kentucky Area 
that contains the new 2015 and 2021 motor vehicle emission budgets 
(MVEBs) for nitrogen oxides (NOX) and PM2.5 for 
that Area. On December 9, 2010, and January 25, 2011, respectively, 
Ohio and Indiana submitted requests to redesignate their portion of the 
Tri-state Cincinnati-Hamilton Area to attainment for the 1997 
PM2.5 NAAQS. EPA is taking

[[Page 77904]]

action on the requests from Ohio and Indiana in an action separate from 
this final action. This action also approves the emissions inventory 
submitted with the maintenance plan. Additionally, EPA is responding to 
comments received on EPA's October 21, 2011, proposed rulemaking.

DATES: Effective Date: This rule will be effective December 15, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0937. All documents in the docket 
are listed on the 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: Madolyn Dominy or Joel Huey, 
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. Madolyn 
Dominy may be reached by phone at (404) 562-9644 or via electronic mail 
at dominy.madolyn@epa.gov. Joel Huey may be reached by phone at (404) 
562-9104 or via electronic mail at huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for the actions?
II. What are the actions EPA is taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. What are the effects of these actions?
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What is the background for the actions?

    On January 27, 2011, Kentucky, through DAQ, submitted a request to 
redesignate the Northern Kentucky Area to attainment for the 1997 
Annual PM2.5 NAAQS and for EPA approval of the Kentucky SIP 
revision containing a maintenance plan for the Area. In an action 
published on October 21, 2011 (76 FR 65458), EPA proposed approval of 
Kentucky's plan for maintaining the 1997 Annual PM2.5 NAAQS, 
including the emissions inventory submitted pursuant to CAA section 
172(c)(3); and the NOX and PM2.5 MVEBs for the 
Northern Kentucky Area as contained in the maintenance plan. At that 
time, EPA also proposed to approve the redesignation of the Northern 
Kentucky Area to attainment.\1\ Additional background for today's 
action is set forth in EPA's October 21, 2011, proposal.
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    \1\ On September 29, 2011, at 76 FR 60373, EPA determined that 
the Tri-state Cincinnati-Hamilton Area attained the 1997 
PM2.5 NAAQS by its applicable attainment date of April 5, 
2010, and that the Area was continuing to attain the 
PM2.5 standard with monitoring data that was currently 
available.
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    The MVEBs, specified in tons per year (tpy), included in the 
maintenance plan are as follows:

                  Table 1--Northern Kentucky Area MVEBs
                                  [tpy]
------------------------------------------------------------------------
                                               PM2.5            NOX
------------------------------------------------------------------------
2015 Mobile Emissions...................          371.11        6,996.22
  2015 Safety Margin Allocation.........           18.56        1,049.43
                                         -------------------------------
    2015 Total Mobile Budget............          389.67        8,045.65
2021 Mobile Emissions...................          275.38        6,421.15
  2021 Safety Margin Allocation.........           27.54          963.17
                                         -------------------------------
    2021 Total Mobile Budget............          302.92        7,384.32
------------------------------------------------------------------------

    In its October 21, 2011, proposed action, EPA noted that the 
adequacy public comment period on these MVEBs (as contained in 
Kentucky's submittal) began on February 14, 2011, and closed on March 
16, 2011. No comments were received during the public comment period. 
In today's action, EPA is concluding the adequacy process by finding 
the new MVEBs for the Northern Kentucky Area adequate for the purposes 
of transportation conformity.
    As stated in the October 21, 2011, proposal, this redesignation 
addresses the Northern Kentucky Area's status solely with respect to 
the 1997 Annual PM2.5 NAAQS, for which designations were 
finalized on January 5, 2005 (70 FR 944), and as supplemented on April 
14, 2005 (70 FR 19844).
    EPA reviewed PM2.5 monitoring data from ambient 
PM2.5 monitoring stations in the Cincinnati-Hamilton Area 
from 2007-2010. These data have been quality-assured and are recorded 
in Air Quality System (AQS). The annual arithmetic mean 
PM2.5 concentrations for 2007-2010 and the 3-year averages 
of these values (i.e., design values) for 2007-2009 and 2008-2010 are 
summarized in Table 2. The design values demonstrate that the Northern 
Kentucky Area (as part of the Cincinnati-Hamilton Area) continues to 
meet the PM2.5 NAAQS and that the ambient concentrations of 
PM2.5 are continuing to decrease in the Area. EPA has also 
reviewed preliminary monitoring data for 2011, which indicate that the 
Cincinnati-Hamilton Area continues to attain the 1997 PM2.5 
NAAQS. These preliminary data are available in the Docket for today's 
action although it is not yet certified.

[[Page 77905]]

              Table 2--Design Value Concentrations for the Tri-State Cincinnati-Hamilton Area for the 1997 Annual PM2.5 NAAQS ([mu]g/m\3\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Annual mean concentrations       3-Year design values
                  Location                                County                Monitor ID   -----------------------------------------------------------
                                                                                                2007     2008     2009     2010    2007-2009   2008-2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
John Hill...................................  Campbell, KY..................     21-037-3002    14.36    11.83    11.34     11.8       12.3        11.6
Dixie.......................................  Kenton, KY....................     21-117-0007    14.20    11.99    11.04   * 12.1       12.4        11.5
Bonita & St John............................  Butler, OH....................     39-017-0003    15.40    13.80    12.83     13.6       13.9        13.4
Nilles......................................  Butler, OH....................     39-017-0016    14.94    13.75    13.08     13.5       13.8        13.4
Hook Field..................................  Butler, OH....................     39-017-1004    14.62      n/a      n/a      n/a       14.6         n/a
Clermont Center.............................  Clermont, OH..................     39-025-0022    14.01    11.75    11.01     12.0       12.2        11.6
Grooms......................................  Hamilton, OH..................     39-061-0006    14.63    12.48    12.11   * 12.7       13.1        12.4
Seymour & Vine..............................  Hamilton, OH..................     39-061-0014    16.59    15.06    13.38     14.8       15.0        14.4
WM. Howard Taft.............................  Hamilton, OH..................     39-061-0040    15.09    12.62    12.73     13.3       13.4        12.9
W. 8th......................................  Hamilton, OH..................     36-061-0042    15.90    14.40    13.71     14.5       14.6        14.2
E. Kemper...................................  Hamilton, OH..................     36-061-0043    14.85    13.32      n/a      n/a       14.1         n/a
Sherman.....................................  Hamilton, OH..................     39-061-7001    15.09    13.74    12.97     14.1       14.0        13.6
Murray......................................  Hamilton, OH..................     39-016-8001    16.07    14.40    13.40   * 17.6       14.6         n/a
Southeast...................................  Warren, OH....................     39-165-0007    13.98    11.92    11.70     11.9       12.4        11.8
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* Design value does not meet data completeness requirements due to closure or start-up of the monitoring stations.

II. What are the actions EPA is taking?

    In today's rulemaking, EPA is approving: (1) Kentucky's emissions 
inventory, which was submitted pursuant to CAA section 172(c)(3); (2) 
Kentucky's 1997 Annual PM2.5 maintenance plan (such approval 
being one of the CAA criteria for redesignation to attainment status) 
for the Northern Kentucky Area, including MVEBs; and, (3) Kentucky's 
redesignation request to change the legal designation of Boone, 
Campbell and Kenton Counties in their entireties from nonattainment to 
attainment for the 1997 Annual PM2.5 NAAQS. The maintenance 
plan is designed to demonstrate that the Northern Kentucky Area will 
continue to attain the 1997 Annual PM2.5 NAAQS through 2021. 
EPA's approval of the redesignation request is based on EPA's 
determination that the Northern Kentucky Area meets the criteria for 
redesignation set forth in CAA, sections 107(d)(3)(E) and 175A, 
including EPA's determination that the Northern Kentucky Area has 
attained the 1997 Annual PM2.5 NAAQS. EPA's analyses of 
Kentucky's redesignation request, emissions inventory, and maintenance 
plan are described in detail in the October 21, 2011, proposed rule (76 
FR 65458).
    Consistent with the CAA, the maintenance plan that EPA is approving 
also includes 2015 and 2021 MVEBs for NOX and 
PM2.5 for the Northern Kentucky Area. In this action, EPA is 
approving these NOX and PM2.5 MVEBs for the 
purposes of transportation conformity. For required regional emissions 
analysis years involving 2015 and prior to 2021, the applicable budgets 
will be the new 2015 MVEBs. For required regional emissions analysis 
years that involve 2021 or beyond, the applicable budgets will be the 
new 2021 MVEBs.

III. What is EPA's response to comments?

    EPA received one set of comments on the October 21, 2011, proposed 
actions associated with the redesignation of the Northern Kentucky Area 
for the 1997 Annual PM2.5 NAAQS. A summary of the comments 
and EPA's responses are provided below.
    Comment 1: The Commenter states ``EPA has failed to conduct an 
adequate analysis under Clean Air Act Section 110(l) on what effect 
redesignation will have on the 2006 24 hour PM2.5 NAAQS, the 
1-hour NOX NAAQS, the 1-hour SO2 [sulfur dioxide] 
NAAQS and the 2008 75 parts per billion ozone NAAQS.''
    Response 1: Section 110(l) provides in part: ``[t]he Administrator 
shall not approve a revision of a plan if the revision would interfere 
with any applicable requirement concerning attainment and reasonable 
further progress * * *, or any other applicable requirement of this 
chapter.'' EPA disagrees with the Commenter's assertion that EPA did 
not consider 110(l) in terms of the October 21, 2011, proposed action. 
As a general matter, EPA must and does consider section 110(l) 
requirements with action on each SIP revision, although EPA does not 
interpret section 110(l) as requiring a full attainment demonstration 
for every SIP revision. See, e.g., 70 FR 53, 57 (January 3, 2005); 70 
FR 17029, 17033 (April 4, 2005); 70 FR 28429, 28431 (May 18, 2005); and 
70 FR 58119, 58134 (October 5, 2005). However, the redesignation does 
not relax any existing control requirements, nor does it alter any 
existing control requirements. On that basis, EPA concludes that this 
redesignation will not interfere with attainment or maintenance of any 
of these air quality standards. The Commenter does not provide any 
information in its comment to indicate that approval of Kentucky's 
redesignation would have any impact on the Area's ability to comply 
with on the 2006 24-hour PM2.5 NAAQS, the 1-hour 
NOX NAAQS, the 1-hour SO2 NAAQS or the 2008 75 
parts per billion ozone NAAQS. Kentucky's January 27, 2011, 
redesignation request and maintenance plan for the 1997 annual 
PM2.5 NAAQS does not revise or remove any existing emissions 
limit for any NAAQS, or any other existing substantive SIP provisions. 
In fact, the maintenance plan provided with the Commonwealth's 
submission demonstrates a decline in the direct PM2.5 and 
PM2.5 precursor (e.g., NOX and SO2) 
emissions over the timeframe of the initial maintenance period.\2\ For 
these reasons, EPA disagrees that the Commenter has identified a 
rationale on which EPA could disapprove of the SIP revision at issue.
---------------------------------------------------------------------------

    \2\ EPA notes that the Cincinnati/Northern Kentucky Area does 
not have violating monitors for the 2006 24-hour PM2.5 
NAAQS, the 1-hour NOX NAAQS, or the 1-hour SO2 
NAAQS, and that this Area has never been designated nonattainment 
for 2006 24-hour PM2.5 NAAQS, the 1-hour NOX 
NAAQS, or the 1-hour SO2 NAAQS.
---------------------------------------------------------------------------

    Comment 2: The Commenter states that ``EPA has not established that 
any of the emission reductions did not come from the NOX SIP 
Call, CAIR [Clean Air Interstate Rule] and CSAPR [Cross State Air 
Pollution Rule]. Emission

[[Page 77906]]

reductions pursuant to these programs are not permanent and enforceable 
because these programs are cap and trade programs. Any source which 
reduced its actual emissions pursuant to one of these trading programs 
could at any time in the future choose to increase their emissions by 
purchasing emission credits.'' The Commenter further opines that 
``[t]his problem is worsened by EPA's recent proposal to all[ow] 
increased trading under CSAPR until 2014.''
    Response 2: Contrary to the Commenter's statement, EPA did 
establish in the proposal notice that at least part of the emission 
reductions that helped the area achieve attainment came from programs 
other than the NOX SIP Call, CAIR and CSAPR. The notice 
lists several permanent and enforceable reductions in emissions 
resulting from implementation of the Kentucky SIP, applicable Federal 
air pollution control regulations, and other reductions that are not 
``cap and trade'' programs. Those programs include Tier 2 vehicle 
standards, heavy-duty gasoline and diesel highway vehicle standards, 
nonroad spark-ignition engines and recreational engines standards, 
large nonroad diesel engine standards, open burning bans, and fugitive 
emissions standards. See 76 FR 65465.
    Further, EPA disagrees with the Commenter's conclusion that 
emission reductions associated with trading programs such as the 
NOX SIP Call, CAIR, and CSAPR are not permanent and 
enforceable simply because the underlying program is an emissions 
trading program. The Commenter appears to be arguing that these 
reductions cannot be considered permanent and enforceable within the 
meaning of section 107(d)(3)(E)(iii) of the CAA. Section 
107(d)(3)(E)(iii) requires that, in order to redesignate an area to 
attainment, the Administrator must determine that ``the improvement in 
air quality is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable SIP and applicable 
federal air pollutant control regulations and other permanent and 
enforceable reductions.'' EPA disagrees with the Commenter's conclusion 
that reductions from trading programs cannot be considered permanent 
and enforceable because these programs allow individual sources to 
choose between purchasing emission credits and reducing emissions.
    The final CSAPR allows sources to trade allowances with other 
sources in the same or different states while firmly constraining any 
emissions shifting that may occur by requiring a strict emission 
ceiling in each state (the budget plus variability limit). As explained 
in EPA's proposed redesignation notice for the Northern Kentucky Area, 
the emission reduction requirements of CAIR are enforceable through the 
2011 control period, and because CSAPR has now been promulgated to 
address the requirements previously addressed by CAIR and gets similar 
or greater reductions in the relevant areas in 2012 and beyond, EPA 
considers the emission reductions that led to attainment in the 
Northern Kentucky Area to be permanent and enforceable. The emission 
ceilings within each state are a permanent requirement of the CSAPR and 
are made enforceable through the associated Federal Implementation 
Plans.
    EPA responded to a similar comment in its ``Approval and 
Promulgation of Air Quality Implementation Plans; Redesignation of the 
Evansville area to attainment of the Fine Particulate Matter 
Standard.'' 76 FR 59527, 59529, September 27, 2011. In that notice, EPA 
discusses several factors which support EPA's determination that the 
SO2 reductions in the Evansville area are permanent and 
enforceable and which also apply to the Northern Kentucky Area. First, 
given the mandates under CSAPR, any utility that has already spent the 
hundreds of millions of dollars to install scrubbers will find 
continued effective operation of those controls to be far more cost-
effective than disregarding this investment and either expending 
similar capital installing replacement scrubbers elsewhere or 
purchasing credits at a price equivalent to that capital already spent. 
In short, any utility in a state covered by CSAPR provisions related to 
PM2.5 that has installed scrubbers is almost certain under 
CSAPR to retain the scrubbers and operate them effectively. Second, any 
action by a utility that increases its emissions, requiring the 
purchase of allowances, necessitates a corresponding reduction by the 
utility that sells the allowances. Given the regional nature of 
particulate matter, this corresponding emission reduction will have an 
air quality benefit that will compensate at least in part for the 
impact of any emission increase from utility companies outside Kentucky 
but near the Kentucky area. Third, in response to the opinion of the 
Court of Appeals for the District of Columbia Circuit, CSAPR includes 
assurance provisions to ensure that the necessary emission reductions 
occur within each covered state.
    The recent proposed rule revision referenced by the Commenter would 
amend the CSAPR assurance penalty provisions for all states within the 
program so they start in 2014 instead of 2012. 76 FR 63860 (October 14, 
2011). As explained in the proposal, which was subject to public review 
and comment, this revision would promote the development of allowance 
market liquidity, thereby smoothing the transition from the CAIR 
programs to the CSAPR programs in 2012. As further explained in the 
proposal, the proposed revisions:

    Would not affect, in any way, the requirements of the rule in 
2014 and beyond. EPA is proposing only a short postponement of the 
assurance penalty provisions to ensure a smooth transition from CAIR 
to the Transport Rule programs. EPA believes that, notwithstanding 
postponement of the assurance penalty provisions, the states covered 
by the Transport Rule programs will still achieve the emission 
reductions in 2012 and 2013 necessary to eliminate each state's 
significant contribution to nonattainment and interference with 
maintenance identified in the final Transport Rule (with the 
revisions included in this proposal). The highly detailed state-
specific bases on which individual state budgets were determined 
using the approach and methodologies developed in the final 
Transport Rule, and included in the record for the Transport Rule, 
together with the derivation of the variability limits from historic 
data reflecting state-level year-to-year variation in power sector 
emissions, support EPA's belief. See 76 FR at 63871.

    Further, Kentucky's maintenance plan provides for verification of 
continued attainment by performing future reviews of triennial 
emissions inventories and also for contingency measures to ensure that 
the NAAQS is maintained into the future if monitored increases in 
ambient PM2.5 concentrations occur. See 76 FR 65469. For 
this and the above reasons, EPA disagrees that the Commenter has 
identified a basis on which EPA should disapprove this SIP revision.
    Comment 3: The Commenter states that Kentucky does not have fully 
approved adequate SIPs due to what the Commenter characterizes as an 
``exemption'' for excess emissions due to malfunction and shutdown in 
the discretion of the director. The Commenter cites to a number of 
different provisions to support the conclusion that Kentucky's 
regulations should be revised to ``clearly comply'' with the CAA and 
EPA guidance (citations also provided) such that all excess emissions 
are violations and to preserve the authority of EPA and citizens to 
enforce the SIP standards and limitations.
    Response 3: The CAA sets forth the general criteria for 
redesignation of an area from nonattainment to attainment in Section 
107(d)(3)(E). Specifically, that section identifies five main criteria

[[Page 77907]]

including that ``the Administrator has fully approved the applicable 
implementation plan for the area under section 7410(k) of this title.'' 
42 U.S.C. 7407(d)(3)(E)(ii). Although the Commenter does not 
specifically cite to section 107(d)(3)(E)(ii), the language used in the 
comment (``fully approved adequate SIP'') appears to derive from this 
section of the CAA (and the Commenter does later cite to 107(d)(3)(E) 
in the concluding paragraph of the comment letter. As a preliminary 
matter, the issue before EPA in the current rulemaking action is a 
redesignation for the Kentucky portion of the Tri-state Cincinnati-
Hamilton Area to attainment for the 1997 PM2.5 standard, 
including the maintenance plan. The SIP provisions identified in the 
Commenter's letter are not currently being proposed for revision as 
part of the redesignation submittal. Thus, EPA's review here is limited 
to whether the already approved provisions affect any of the 
requirements for redesignation in a manner that would preclude EPA from 
approving the redesignation request. Because the rules cited by the 
Commenter are not pending before EPA and/or are not the subject of this 
rulemaking action, EPA did not undertake a full SIP review of the 
individual provisions. It has long been established that EPA may rely 
on prior SIP approvals in approving a redesignation request plus any 
additional measures it may approve in conjunction with a redesignation 
action. See e.g., page 3 of the September 4, 1992, John Calcagni 
Memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 
F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 
2001); 68 FR 25413, 25426 (May 12, 2003).
    Additionally, in the comment the word ``adequate'' was inserted 
into the statement ``fully approved SIP'' (which is the language of 
Section 107(d)(3)(E)(ii)) such that the Commenter stated that Kentucky 
must have a ``fully approved adequate SIP.'' The word ``adequate'' is 
not included in Section 107(d)(3)(E)(ii), and its inclusion alters the 
plain text of the CAA for that particular provision. Furthermore, while 
the Commenter opines that the eight cited-to provisions of the Kentucky 
rules result in a ``regulatory structure that is inconsistent with the 
fundamental requirement that all excess emissions be considered 
violations,'' the Commenter does not link this concern with 
deficiencies in Kentucky's redesignation submittal for the Northern 
Kentucky Area. There is no information provided indicating that 
Kentucky has excused violations and that such actions result in 
Kentucky failing to meet a requirement for redesignation. Furthermore, 
there is no information provided indicating that even if Kentucky were 
to excuse such violations that the violations would not be actionable 
by EPA or citizens.
    To the contrary, on November 4, 2011, Kentucky's Energy and 
Environment Cabinet, Department for Environmental Protection, Division 
for Air Quality, explained in a letter to EPA Region 4 that ``The 
Division would like to make clear that no provision in 401 KAR 50:055 
prohibits the Director from taking enforcement action for excess 
emissions resulting from startup, shutdown, and malfunction events.'' 
The letter further states that ``EPA's enforcement authorities are 
established pursuant to Section 113 of the CAA, and a determination by 
the Director does not limit EPA's authority to take enforcement action. 
Similarly, Section 304 of the CAA provides enforcement authority 
requirements to citizens and is not limited by the Director's 
determination.'' EPA understands that the Commenter has other concerns; 
however, with regard to this issue on enforcement authorities, 
Kentucky's November 4, 2011, correspondence addresses the Commenter's 
apparent misconception.\3\
---------------------------------------------------------------------------

    \3\ Although EPA interprets the SIP as indicated by the 
Commonwealth in its letter, EPA recognizes that the citations 
identified by the commenter may not be as clear as would be ideal. 
EPA encourages the Commonwealth to clarify the language in any 
future revisions to these provisions of the SIP.
---------------------------------------------------------------------------

    Notably, on June 30, 2011, Sierra Club filed a Petition to Find 
Inadequate and Correct Several State Implementation Plans under Section 
110 of the Clean Air Act Due to Startup, Shutdown, Malfunction, and/or 
Maintenance Provisions. EPA has agreed to respond to this petition by 
August 31, 2012, as part of settlement of a lawsuit. See Sierra Club et 
al. v. Jackson, No. 3:10-cv-04060-CRB (N.D. Cal). The comments 
regarding start up, shut down and malfunctions submitted on this 
redesignation action are identical to the Kentucky-specific portion of 
the above-referenced Petition (at pages 39-40). EPA intends to review 
those provisions consistent with its review of the Petition. At this 
time, with regard to the redesignation of the Kentucky portion of the 
Tri-state Cincinnati-Hamilton Area, Kentucky has a fully approved SIP 
consistent with applicable requirements and EPA does not agree that the 
Commenter has raised a basis on which EPA could disapprove of the 
redesignation request at issue.

IV. Why is EPA taking these actions?

    EPA has determined that the Northern Kentucky Area (as part of the 
Tri-state Cincinnati-Hamilton Area) has attained the 1997 Annual 
PM2.5 NAAQS and has also determined that all other criteria 
for the redesignation of the Northern Kentucky Area from nonattainment 
to attainment of the 1997 Annual PM2.5 NAAQS have been met. 
See CAA section 107(d)(3)(E). One of those requirements is that the 
Northern Kentucky Area has an approved plan demonstrating maintenance 
of the 1997 Annual PM2.5 NAAQS. EPA is also taking final 
action to approve the maintenance plan for the Northern Kentucky Area 
as meeting the requirements of sections 175A and 107(d)(3)(E) of the 
CAA. In addition, EPA is approving the emissions inventory as meeting 
the requirements of section 172(c)(3) of the CAA. Finally, EPA is 
approving the new NOX and PM2.5 MVEBs for the 
years 2015 and 2021 as contained in Kentucky's maintenance plan for the 
Northern Kentucky Area because these MVEBs are consistent with 
maintenance of the 1997 Annual PM2.5 standard in the Area. 
The detailed rationale for EPA's findings and actions are set forth in 
the proposed rulemaking and in other discussion in this final 
rulemaking.

V. What are the effects of these actions?

    Approval of the redesignation request changes the legal designation 
of Boone, Campbell and Kenton Counties in their entireties from 
nonattainment to attainment for the 1997 Annual PM2.5 NAAQS. 
EPA is modifying the regulatory table in 40 CFR 81.318 to reflect a 
designation of attainment for these counties. EPA is also approving, as 
a revision to the Kentucky SIP, the Commonwealth's plan for maintaining 
the 1997 Annual PM2.5 NAAQS in the Northern Kentucky Area 
through 2021. The maintenance plan includes contingency measures to 
remedy possible future violations of the 1997 Annual PM2.5 
NAAQS, and establishes NOX and PM2.5 MVEBs for 
the years 2015 and 2021 for the Northern Kentucky Area. Additionally, 
this action approves the emissions inventory for the Northern Kentucky 
Area pursuant to section 172(c)(3) of the CAA.

VI. Final Action

    EPA is taking final action to approve the redesignation and change 
the legal designation of Boone, Campbell, and Kenton Counties in their 
entireties from nonattainment to attainment for the 1997 Annual 
PM2.5 NAAQS. Through this action, EPA is also approving into

[[Page 77908]]

the Kentucky SIP the 1997Annual PM2.5 maintenance plan for 
the Northern Kentucky Area, which includes for this Area the new MVEBs 
of 8,045.65 tpy of NOX and 389.67 tpy of PM2.5 
for 2015 and 7,384.32 tpy of NOX and 302.92 tpy of 
PM2.5 for 2021.
    Additionally, EPA is approving the 2008 emissions inventory for the 
Northern Kentucky Area pursuant to section 172(c)(3) of the CAA. In 
today's action, EPA is concluding the adequacy process by finding the 
new MVEBs for the Northern Kentucky Area adequate for the purposes of 
transportation conformity. Within 24 months from the date of 
publication for this final action, the transportation partners are 
required to demonstrate conformity to the new PM2.5 and 
NOX 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 
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, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the status of a geographical area 
and do not impose any additional regulatory requirements on sources 
beyond those required by state law. A redesignation to attainment does 
not in and of itself impose any new requirements, but rather results in 
the application of requirements contained in the CAA for areas that 
have been redesignated to attainment. Moreover, 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 these reasons, these actions:
     Are 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);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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,
     Do 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 final 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 Commonwealth, 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 February 13, 2012. 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, Intergovernmental relations, Reporting and recordkeeping 
requirements, and Particulate matter.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks.

    Dated: December 7, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.

    40 CFR parts 52 and 81 are 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 S--Kentucky

0
2. Section 52.920(e) is amended by adding a new entry ``1997 Annual 
PM2.5

[[Page 77909]]

Maintenance Plan for the Northern Kentucky Area'' at the end of the 
table to read as follows:

Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                        Applicable           State
    Name of non-regulatory SIP        geographic or     submittal date/  EPA approval date       Explanations
            provision               nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1997 Annual PM2.5 Maintenance      Boone, Campbell and         1/27/11  12/15/2011. [Insert  For the 1997 Annual
 Plan for the Northern Kentucky     Kenton Counties                      citation of          PM2.5 NAAQS.
 Area.                              (Kentucky portion                    publication].
                                    of the Cincinnati-
                                    Hamilton OH-KY-IN
                                    Area).
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

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

0
4. In Sec.  81.318, the table entitled ``Kentucky--PM2.5 
(Annual NAAQS)'' is amended under ``Cincinnati-Hamilton, OH-KY-IN'' by 
revising the entries for ``Boone County,'' ``Campbell County,'' and 
``Kenton County'' to read as follows:

Sec.  81.318  Kentucky.

* * * * *

                             Kentucky--PM2.5
                             [Annual NAAQS]
------------------------------------------------------------------------
                                             Designation \a\
        Designated area        -----------------------------------------
                                       Date \1\               Type
------------------------------------------------------------------------
Cincinnati-Hamilton, OH-KY-IN:
------------------------------------------------------------------------
    Boone County..............  This action is         Attainment.
                                 effective December
                                 15, 2011
    Campbell County...........  This action is         Attainment.
                                 effective December
                                 15, 2011
    Kenton County.............  This action is         Attainment.
                                 effective December
                                 15, 2011
 
                              * * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
  otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.

* * * * *
[FR Doc. 2011-32058 Filed 12-14-11; 8:45 am]
BILLING CODE 6560-50-P
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