UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 4 

ATLANTA FEDERAL CENTER 

61 FORSYTH STREET 

ATLANTA, GEORGIA 30303-8960 

JUL 2 0 2015 

MEMORANDUM 

SUBJECT: 

FROM: 

TO: 

Regional Consistency Concurrence RequestRedesignation Actions in Kentucky and Tennesr/ _, 1 / 

Region4 

Heather McTeer Toney, Regional Administr~~~ 

Anna Marie Wood, Director 

Air Quality Policy Division 

Office of Air Quality Planning and Standards 

Pursuant to 40 C.F.R. § 56.5(b), Region 4 is requesting concurrence from the Office of Air Quality 

Planning and Standards (OAQPS) to act on pending and future redesignation requests from Kentucky 

and Tennessee in light of the March 18, 2015, opinion of the United States Court of Appeals for the 

Sixth Circuit (Sixth Circuit) in Sierra Club v. EPA (Nos. 12"3169, 12-3182, and 12-3420). In that 

decision, the Court held that the U. S. Environmental Protection Agency's redesignation of the Indiana 

and Ohio portions of the Cincinnati-Hamilton nonattainment area to attainment for the 1997 PM2..s 

National Ambient Air Quality Standards (NAAQS) was not in accordance with the Clean Air Act 

(CAA) because the Court found that section 172(c)(l) of the 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 of Ohio and a number of Ohio utility 

companies, have filed petitions for rehearing en bane of this decision in the 6th Circuit, and a decision 

on those petitions is pending. The EPA's longstanding interpretation of the CAA is that, for an area 

attaining the NAAQS, the CAA section 172(c)(l) RACMIRACT requirement is not "applicable" for 

purposes of redesignation 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 of the above and in accordance with 40 C.F.R. § 56.5(b), we seek your concurrence to act 

inconsistent with the EPA's interpretation of CAA 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 Further Progress, 

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 Ambient Air Quality Standards" (Dec. 14, 2004). 

Internet Address (URL) • hUp://www epa.gov 

Recycled/Recyclable • Printed wilh Vegetable 011 Based Inks on Recycled Paper (Minimum 30% Postconsumer) 
To expedite processing of this request, I am writing to you as the Director of the Division within the 

Office of Air and Radiation (OAR) that is tasked with ensuring consistency of CAA redesignation 

requests. It is my understanding that you will coordinate with the OAR Assistant Administrator as 

appropriate, if there are concerns with this request, and ask that you immediately notify Beverly Banister 

of the Air, Pesticides and Taxies Management Division, if any such concerns arise. 

Please contact me or Beverly H. Banister if you have any questions regarding this request. 

concur 

_ I do not concur 

~&rr ~ Date 

Air Quality Policy Division 

Office of Air Quality Planning and Standards