UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 4 ATLANTA FEDERAL CENTER 61 FORSYTH STREET ATLANTA, GEORGIA 30303-8960 

### JUL 20 2015

MEMORANDUM SUBJECT:

FROM:



### TO: Regional Consistency Concurrence RequestRedesignation Actions inKentucky and Tennesr/ _, 1 /
HeatherMcTeerToney, Regional

# Administr~~**~** Region4
Anna Marie Wood, Director Air Quality Policy Division Office ofAir Quality Planning and Standards
Pursuant to 40 C.F.R. § 56.5(b), Region 4 is requesting concurrence from the Office ofAir Quality Planning and Standards (OAQPS) to act on pending and future redesignation requests from Kentucky and Tennessee in light ofthe March 18, 2015, opinion ofthe United States Court ofAppeals for the Sixth Circuit (Sixth Circuit) in Sierra Club v. EPA (Nos. 12"3169, 12-3182, and 12-3420). In that decision, the Courtheld that the U. S. Environmental Protection Agency's redesignation ofthe Indiana and Ohio portions ofthe Cincinnati-Hamilton nonattainment area to attainment for the 1997 PM2..s National Ambient Air Quality Standards (NAAQS) was not in accordance with the Clean AirAct (CAA) because the Court found that section 172(c)(l) ofthe Act required the EPA to approve reasonable available control measures, including reasonably available control technology (RACMIRACT), into the Indiana and Ohio State Implementation Plans (SIPs) prior to the attainment redesignation. The EPA and the intervenors in that case, the State ofOhio and a number ofOhio utility companies, have filed petitions for rehearing enbane ofthis decision in the 6th Circuit, and adecision on those petitions is pending. The EPA's longstanding interpretation ofthe CAA is that, for an area attaining the NAAQS, the CAA section 172(c)(l) RACMIRACT requirement is not "applicable" for purposes ofredesignation pursuant to section 107(d)(3)(E), and therefore such control requirements need not be established and approved into the SIP prior to redesignation. 1
In light ofthe above and in accordance with 40 C.F.R. § 56.5(b), we seek your concurrence to act inconsistent with the EPA's interpretation ofCAA sections 107(d)(3)(E) and 172(c)(l) when taking action on pending and future redesignation requests in Kentucky and Tennessee because we are bound by the Sixth Circuit's decision.

1

### See, e.g., 40 C.F.R. §§ 51.1118 and 51.1004{c); 57 Fed. Reg. 13,498, 13564 (Aprill6, 1992); 60 Fed. Reg. 36,723 (July 18, 1995); Memorandum from JohnS. Seitz, "Reasonable FurtherProgress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standards" (May 10, 1995); Memorandum from Stephen D. Page, "Clean Data Policy for the Fine Particle National AmbientAir Quality Standards" (Dec. 14, 2004). Internet Address (URL) • hUp://wwwepa.gov Recycled/Recyclable • Printed wilh Vegetable 011 Based Inks on Recycled Paper (Minimum 30% Postconsumer)

### To expedite processing ofthis request, I am 

### writing to you 

### as the Directorofthe Division within the Office ofAir and Radiation (OAR) that is 

### tasked with ensuring consistency ofCAA

### redesignation requests. It is my understanding that you will coordinate with the 

### OAR AssistantAdministrator 

### as appropriate, if

### there are concerns with this request, and ask that you immediately notify Beverly Banister ofthe Air, Pesticides and Taxies ManagementDivision, ifany such concerns arise. Please contact me or Beverly H. 

### Banister ifyou have any questions regarding this request.

# concur

_ I 

### do not concur

# ~&**rr ~**  Date Air Quality Policy Division Office ofAir Quality Planning and Standards