Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 26685 

abuse, Foreign relations, Government 

contracts, Grant programs—health, 

Grant programs—veterans, Health care, 

Health facilities, Health professions, 

Health records, Homeless, Medical and 

dental schools, Medical devices, 

Medical research, Mental health 

programs, Nursing homes, Philippines, 

Reporting and recordkeeping 

requirements, Scholarships and 

fellowships, Travel and transportation 

expenses, Veterans. 

Dated: May 6, 2010. 

Robert C. McFetridge, 

Director, Regulation Policy and Management, 

Office of the General Counsel. 

For the reasons stated in the 

preamble, VA proposes to amend 38 

CFR part 17 as follows: 

PART 17—MEDICAL 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 38 U.S.C. 501, 1721, and as 

noted in specific sections. 

2. Amend § 17.38 by revising 

paragraph (c)(5) to read as follows: 

§ 17.38 Medical benefits package. 

* * * * * 

(c) * * * 

(5) Hospital and outpatient care for a 

veteran who is either a patient or inmate 

in an institution of another government 

agency if that agency has a duty to give 

the care or services. This exclusion does 

not apply to veterans who are released 

from incarceration in a prison or jail 

into a temporary housing program (such 

as a community residential re-entry 

center or halfway house). 

* * * * * 

[FR Doc. 2010–11177 Filed 5–11–10; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R04–OAR–2010–0134–201007; FRL– 

9150–1] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Kentucky; Redesignation of 

the Kentucky Portion of the CincinnatiHamilton 1997 8-Hour Ozone 

Nonattainment Area to Attainment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On January 29, 2010, the 

Commonwealth of Kentucky, through 

the Kentucky Energy and Environment 

Cabinet, Division for Air Quality (DAQ), 

submitted a request to redesignate the 

Kentucky portion of the tri-state 

Cincinnati-Hamilton 8-hour ozone 

nonattainment area (the ‘‘tri-state 

Cincinnati-Hamilton Area’’) to 

attainment for the 1997 8-hour ozone 

national ambient air quality standards 

(NAAQS); and to approve the state 

implementation plan (SIP) revision 

containing a maintenance plan for the 

Kentucky portion of the tri-state 

Cincinnati-Hamilton Area. The tri-state 

Cincinnati-Hamilton 1997 8-hour ozone 

nonattainment area is composed 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. In this action, EPA 

is proposing to: Determine that the tristate Cincinnati-Hamilton Area has 

attained the 1997 8-hour ozone NAAQS; 

approve Kentucky’s redesignation 

request for Boone, Campbell and Kenton 

Counties in Kentucky as part of the tristate Cincinnati Area; approve the 1997 

8-hour ozone maintenance plan for 

Northern Kentucky, including the motor 

vehicle emission budgets (MVEBs) for 

nitrogen oxides (NOX) and volatile 

organic compounds (VOC) for the years 

2015 and 2020; and approve the 2008 

emissions inventory for Northern 

Kentucky as meeting the requirements 

of the Clean Air Act (CAA). EPA’s 

proposed approval of Kentucky’s 

redesignation request is based on the 

belief that Kentucky’s request meets the 

criteria for redesignation to attainment 

specified in the CAA, including the 

determination that the entire tri-state 

Cincinnati-Hamilton ozone 

nonattainment area has attained the 

1997 8-hour ozone NAAQS. In a 

separate rulemaking action, EPA has 

proposed to approve redesignation 

requests and maintenance plans 

submitted by Ohio and Indiana for their 

respective portions of this 1997 8-hour 

ozone area. 

In this action, EPA is also notifying 

the public of the status of EPA’s 

adequacy determination for the new 

2015 and 2020 MVEBs that are 

contained in the 1997–8-hour ozone 

maintenance plan for Northern 

Kentucky. MVEBs for the Ohio and 

Indiana portions of this Area are 

included in the Ohio and Indiana 

submittals, and are being addressed 

through EPA’s separate action for those 

submissions. EPA is also in the process 

of rulemaking on a new 8-hour ozone 

NAAQS. Today’s actions, however, 

relate only to the 1997 8-hour ozone 

NAAQS. 

DATES: Comments must be received on 

or before June 11, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2010–0134, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: benjamin.lynorae@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: EPA–R04–OAR–2010–0134, 

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. 

5. Hand Delivery or Courier: Ms. 

Lynorae Benjamin, Chief, 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. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding Federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2010– 

0134. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or e-mail, 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

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26686 Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI 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 in 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: Ms. 

Jane Spann or Mr. Zuri Farngalo of the 

Regulatory Development Section, in the 

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. The telephone 

number for Mr. Farngalo is (404) 562– 

9152, and the electronic mail is 

farngalo.zuri@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What proposed actions is EPA taking? 

II. What is the background for EPA’s 

proposed actions? 

III. What are the criteria for redesignation? 

IV. Why is EPA proposing these actions? 

V. What is the effect of EPA’s proposed 

actions? 

VI. What is EPA’s analysis of the request? 

VII. What is EPA’s analysis of Kentucky’s 

proposed NOX and VOC MVEBs for Northern 

Kentucky? 

VIII. What is the status of EPA’s adequacy 

determination for the Proposed NOX and 

VOC MVEBs for the years 2015 and 2020 for 

Northern Kentucky? 

IX. What is EPA’s analysis of the proposed 

2008 base year emissions inventory for 

Northern Kentucky? 

X. What are EPA’s proposed actions? 

XI. Statutory and Executive Order Reviews 

I. What proposed actions is EPA taking? 

EPA is proposing several related 

actions, which are summarized below 

and described in greater detail 

throughout this notice of rulemaking: (1) 

To determine that the tri-state 

Cincinnati-Hamilton Area has attained 

the 1997 8-hour ozone NAAQS; (2) to 

approve the Commonwealth of 

Kentucky’s request to redesignate the 

Kentucky portion of the tri-state 

Cincinnati-Hamilton 1997 8-hour ozone 

nonattainment area (Boone, Campbell 

and Kenton Counties in Kentucky) to 

attainment for the 1997 8-hour ozone 

NAAQS under section 107(d)(3)(E) of 

the CAA; (3) to approve under section 

172(c)(3) the emissions inventory 

submitted with the maintenance plan; 

and (4) to approve under section 175A 

Kentucky’s 1997 8-hour ozone NAAQS 

maintenance plan into the Kentucky 

SIP, including the associated MVEBs. 

These proposed actions will be 

revisions to the Kentucky SIP pursuant 

to section 110 of the CAA. In addition, 

and related to today’s actions, EPA is 

also notifying the public of the status of 

EPA’s adequacy determination for the 

Northern Kentucky MVEBs. 

First, EPA is proposing to determine 

that the tri-state Cincinnati-Hamilton 

Area has attained the 1997 8-hour ozone 

NAAQS, based on the most recent three 

years of complete, quality assured 

monitoring data. EPA further proposes 

to determine that the Area has met the 

requirements for redesignation under 

section 107(d)(3)(E) of the CAA if EPA’s 

proposed approval of the emissions 

inventory for Northern Kentucky is 

finalized. In a separate action, EPA has 

proposed approval of the redesignation 

requests and maintenance plans for the 

Ohio and Indiana portions of the tristate Cincinnati-Hamilton Area (75 FR 

8871, February 26, 2010). In this action, 

EPA is now proposing to approve a 

request to redesignate the Kentucky 

portion of the Area and to change the 

legal designation of Boone, Campbell 

and Kenton Counties in Kentucky from 

nonattainment to attainment for the 

1997 8-hour ozone NAAQS. 

Second, EPA is proposing to approve 

under section 172(c)(3) Kentucky’s 2008 

emissions inventory included in the 

maintenance plan for Northern 

Kentucky as meeting the requirements 

of that section. In coordination with 

Ohio and Indiana, Kentucky selected 

2008 as ‘‘the attainment year’’ for the tristate Cincinnati-Hamilton Area for the 

purpose of demonstrating attainment of 

the 1997 8-hour ozone NAAQS. This 

emissions inventory identifies the level 

of emissions in the Area, which is 

sufficient to attain the 1997 8-hour 

ozone NAAQS. Please see section IX of 

this rulemaking for more detail on 

Kentucky’s 2008 emission inventory. 

Third, EPA is proposing to approve 

Kentucky’s 1997 8-hour ozone NAAQS 

maintenance plan for Northern 

Kentucky as meeting the requirements 

of section 175A of the CAA, such 

approval being one of the CAA criteria 

for redesignation to attainment. The 

maintenance plan is designed to help 

keep the tri-state Cincinnati-Hamilton 

Area in attainment of the 1997 8-hour 

ozone NAAQS through 2020. Consistent 

with the CAA, the maintenance plan 

that EPA is proposing to approve today 

also includes 2015 and 2020 NOX and 

VOC MVEBs. EPA is proposing to 

approve (into the Kentucky’s SIP) the 

2015 and 2020 MVEBs that are included 

as part of Kentucky’s maintenance plan 

for the 1997 8-hour ozone NAAQS. The 

adequacy comment period for these 

MVEBs closed on March 5, 2010, and 

EPA did not receive any comments. (See 

section VIII of this proposed 

rulemaking.) Notably, these MVEBs 

apply only to Northern Kentucky. 

MVEBs contained in the Ohio’s and 

Indiana’s submittals for the remainder 

of the tri-state Cincinnati Area were 

addressed in a separate action (75 FR 

8871, February 26, 2010). 

EPA is also notifying the public of the 

status of EPA’s adequacy process for the 

newly-established 2015 and 2020 NOX

and VOC MVEBs for Northern 

Kentucky. The MVEBs for the Ohio and 

Indiana portions of this 1997 8-hour 

ozone area are being addressed in a 

separate action. The Adequacy comment 

period for the Northern Kentucky 2015 

and 2020 MVEBs began on February 3, 

2010, with EPA’s posting of the 

availability of this submittal on EPA’s 

Adequacy Web site (http:// 

www.epa.gov/otaq/stateresources/ 

transconf/currsips.htm). The adequacy 

comment period for these MVEBs closed 

on March 5, 2010. EPA did not receive 

any adverse comments or requests for 

Kentucky’s submission. Please see 

section VIII of this proposed rulemaking 

for further explanation of this process, 

and for more details on the MVEBs 

determination. 

Today’s notice of proposed 

rulemaking is in response to Kentucky’s 

January 29, 2010, SIP submittal 

requesting the redesignation of Boone, 

Campbell and Kenton Counties in 

Kentucky as part of the tri-state 

Cincinnati-Hamilton 1997 8-hour ozone 

area, and includes SIP revisions 

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Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 26687 

addressing the specific issues 

summarized above and the necessary 

elements for redesignation described in 

sections 107(d)(3)(E) and 175A of the 

CAA. 

II. What is the background for EPA’s 

proposed actions? 

Ground-level ozone is not emitted 

directly by sources. Rather, emissions of 

NOX and VOC react in the presence of 

sunlight to form ground-level ozone. 

NOX and VOC are referred to as 

precursors of ozone. The CAA 

establishes a process for air quality 

management through the NAAQS. 

On July 18, 1997, EPA promulgated a 

revised 8-hour ozone standard of 0.08 

parts per million (ppm). This standard 

is more stringent than the previous 1- 

hour ozone standard. Under EPA 

regulations at 40 CFR part 50, the 1997 

8-hour ozone standard is attained when 

the 3-year average of the annual fourthhighest daily maximum 8-hour average 

ambient air quality ozone 

concentrations is less than or equal to 

0.08 ppm (0.084 ppm when rounding is 

considered). (See 69 FR 23857 (April 30, 

2004) for further information.) Ambient 

air quality monitoring data for the 3- 

year period must meet a data 

completeness requirement. The ambient 

air quality monitoring data 

completeness requirement is met when 

the average percent of days with valid 

ambient monitoring data is greater than 

90 percent, and no single year has less 

than 75 percent data completeness as 

determined in Appendix I of part 50. 

Specifically, section 2.3 of 40 CFR part 

50, Appendix I, ‘‘Comparisons with the 

Primary and Secondary Ozone 

Standards’’ states: 

‘‘The primary and secondary ozone 

ambient air quality standards are met at 

an ambient air quality monitoring site 

when the 3-year average of the annual 

fourth-highest daily maximum 8-hour 

average ozone concentration is less than 

or equal to 0.08 ppm. The number of 

significant figures in the level of the 

standard dictates the rounding 

convention for comparing the computed 

3-year average annual fourth-highest 

daily maximum 8-hour average ozone 

concentration with the level of the 

standard. The third decimal place of the 

computed value is rounded, with values 

equal to or greater than 5 rounding up. 

Thus, a computed 3-year average ozone 

concentration of 0.085 ppm is the 

smallest value that is greater than 0.08 

ppm.’’ 

The CAA required EPA to designate 

as nonattainment any area that was 

violating the 1997 8-hour ozone NAAQS 

based on the three most recent years of 

ambient air quality data. The tri-state 

Cincinnati-Hamilton 1997 8-hour ozone 

nonattainment area was initially 

designated nonattainment for the 1997 

8-hour ozone standard using 2001–2003 

ambient air quality data. EPA published 

a final designations rulemaking for the 

NAAQS on April 30, 2004 (69 FR 

23857). 

Title I, Part D of the CAA contains 

two sets of provisions—subpart 1 and 

subpart 2—that address planning and 

control requirements for ozone 

nonattainment areas. Subpart 1 (which 

EPA refers to as ‘‘basic’’ nonattainment) 

contains general, less prescriptive, 

requirements for nonattainment areas 

for any pollutant—including ozone— 

governed by a NAAQS. Subpart 2 

(which EPA refers to as ‘‘classified’’ 

nonattainment) provides more specific 

requirements for certain ozone 

nonattainment areas. Some 1997 8-hour 

ozone nonattainment areas were subject 

only to the provisions of subpart 1. 

Other 1997 8-hour ozone nonattainment 

areas were classified as subpart 2 areas 

and were subject to the provisions of 

subpart 2 in addition to subpart 1. 

Under EPA’s Phase I 8-Hour Ozone 

Implementation Rule (69 FR 23857) 

(Phase I Rule), signed on April 15, 2004, 

and published April 30, 2004, an area 

was classified under subpart 2 based on 

its 8-hour ozone design value (i.e., the 

3-year average of the annual fourth 

highest daily maximum 8-hour average 

ozone concentrations), if it had a 1-hour 

design value at or above 0.121 ppm (the 

lowest 1-hour design value in Table 1 of 

subpart 2). All other areas were covered 

under subpart 1, based upon their 8- 

hour ambient air quality design values. 

Northern Kentucky (as part of the bistate Cincinnati-Hamilton Area) was 

originally designated as a moderate 

nonattainment area for the 1-hour ozone 

NAAQS on November 6, 1991 (56 FR 

56694). On June 19, 2000 (65 FR 37879), 

the Kentucky portion of the CincinnatiHamilton 1-hour nonattainment area 

was redesignated as attainment for the 

1-hour ozone NAAQS, and was 

considered to be a maintenance area 

subject to a CAA section 175A 

maintenance plan for the 1-hour 

NAAQS. On April 30, 2004, EPA 

designated the tri-state CincinnatiHamilton Area (which then included 

Boone, Campbell and Kenton Counties 

in Kentucky; Butler, Clermont, Clinton, 

Hamilton and Warren Counties in Ohio; 

and a portion of Dearborn County in 

Indiana) under subpart 1 as a ‘‘basic’’ 

1997 8-hour ozone NAAQS 

nonattainment area (69 FR 23857, April 

30, 2004). 

As part of the 2004 designations, EPA 

also promulgated an implementation 

rule—the Phase I Rule. Various aspects 

of EPA’s Phase I Rule were challenged 

in court. On December 22, 2006, the 

U.S. Court of Appeals for the District of 

Columbia Circuit (DC Circuit Court) 

vacated EPA’s Phase I Rule (69 FR 

23951, April 30, 2004). South Coast Air 

Quality Management Dist. (SCAQMD) v. 

EPA, 472 F.3d 882 (DC Cir. 2006). On 

June 8, 2007, in response to several 

petitions for rehearing, the DC Circuit 

Court clarified that the Phase I Rule was 

vacated only with regard to those parts 

of the Rule that had been successfully 

challenged. The Phase I Rule provisions 

related to classifications for areas 

currently classified under subpart 2 of 

title I, part D of the CAA as 1997 8-hour 

ozone NAAQS nonattainment areas, the 

1997 8-hour ozone NAAQS attainment 

dates and the timing for emissions 

reductions needed for attainment of the 

1997 8-hour ozone NAAQS remain 

effective. The June 8th decision left 

intact the Court’s rejection of EPA’s 

reasons for implementing the 1997 8- 

hour standard in certain nonattainment 

areas under subpart 1 in lieu of subpart 

2. By limiting the vacatur, the Court let 

stand EPA’s revocation of the 1-hour 

standard and those anti-backsliding 

provisions of the Phase I Rule that had 

not been successfully challenged. The 

June 8th decision affirmed the 

December 22, 2006, decision that EPA 

had improperly failed to retain 

measures required for 1-hour 

nonattainment areas under the antibacksliding provisions of the 

regulations: (1) Nonattainment area New 

Source Review (NSR) requirements 

based on an area’s 1-hour nonattainment 

classification; (2) Section 185 penalty 

fees for 1-hour severe or extreme 

nonattainment areas; and (3) measures 

to be implemented pursuant to section 

172(c)(9) or 182(c)(9) of the CAA, on the 

contingency of an area not making 

reasonable further progress toward 

attainment of the 1-hour NAAQS, or for 

failure to attain that NAAQS. The June 

8th decision clarified that the Court’s 

reference to conformity requirements for 

anti-backsliding purposes was limited to 

requiring the continued use of 1-hour 

motor vehicle emissions budgets until 

1997 8-hour ozone NAAQS budgets 

were available for 8-hour ozone 

conformity determinations, which is 

already required under EPA’s 

conformity regulations. The Court thus 

clarified that 1-hour ozone conformity 

determinations are not required for antibacksliding purposes. 

For the reasons set forth below, EPA 

does not believe that the Court’s rulings 

alter any requirements relevant to this 

redesignation action so as to preclude 

redesignation, nor does EPA believe the 

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26688 Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 

Court’s ruling prevents EPA from 

proposing or ultimately finalizing this 

redesignation. EPA believes that the 

Court’s December 22, 2006, and June 8, 

2007, decisions impose no impediment 

to moving forward with redesignation of 

Northern Kentucky to attainment, 

because even in light of the Court’s 

decision, redesignation is appropriate 

under the relevant redesignation 

provisions of the CAA and longstanding 

policies regarding redesignation 

requests. 

With respect to the 1997 8-hour ozone 

NAAQS, the Court’s ruling rejected 

EPA’s reasons for classifying areas 

under subpart 1 for the 1997 8-hour 

ozone NAAQS, and remanded that 

matter back to the Agency. In its January 

16, 2009, proposed rulemaking in 

response to the SCAQMD decision, EPA 

has proposed to classify the tri-state 

Cincinnati-Hamilton Area (of which 

Northern Kentucky is a part) under 

subpart 2 as a moderate area (74 FR 

2936). If EPA finalizes this rulemaking, 

the requirements under subpart 2 will 

become applicable when they are due. 

EPA proposed a deadline for submission 

of these requirements of one year after 

the effective date of the final rulemaking 

classifying this and other areas (74 FR 

2940–2941). Although a future final 

decision by EPA to classify this Area 

under subpart 2 would trigger 

additional future requirements for the 

Area, EPA believes that this does not 

preclude this redesignation from being 

approved. This belief is based upon: (1) 

EPA’s longstanding policy of evaluating 

requirements in accordance with the 

requirements due at the time 

redesignation request is submitted; and 

(2) consideration of the inequity of 

applying retroactively any requirements 

that might in the future be applied. 

First, at the time the redesignation 

request was submitted, the tri-state 

Cincinnati-Hamilton Area was not 

classified under subpart 2, nor were 

subpart 2 requirements yet due for this 

Area. Under EPA’s longstanding 

interpretation of section 107(d)(3)(E) of 

the CAA, to qualify for redesignation, 

states requesting redesignation to 

attainment must meet only the relevant 

SIP requirements that came due prior to 

the submittal of a complete 

redesignation request. September 4, 

1992, Calcagni Memorandum 

(‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’ 

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division). See also Michael Shapiro 

Memorandum, September 17, 1993, and 

60 FR 12459, 12465–66 (March 7, 1995) 

(Redesignation of Detroit-Ann Arbor, 

Michigan); Sierra Club v EPA, 375 F.3d 

537 (7th Cir. 2004) (upholding this 

interpretation); 68 FR 25418, 25424, 

25427 (May 12, 2003) (redesignation of 

St. Louis, Missouri). 

Moreover, it would be inequitable to 

retroactively apply any new SIP 

requirements that were not applicable at 

the time the request was submitted. The 

DC Circuit Court has recognized the 

inequity in such retroactive rulemaking 

(see Sierra Club v. Whitman 285 F.3d 63 

(DC Cir. 2002)), in which the Court 

upheld a district court’s ruling refusing 

to make retroactive an EPA 

determination of nonattainment that 

was past the statutory due date. Such a 

determination would have resulted in 

the imposition of additional 

requirements on the area. The Court 

stated, ‘‘[a]lthough EPA failed to make 

the nonattainment determination within 

the statutory frame, Sierra Club’s 

proposed solution only makes the 

situation worse. Retroactive relief would 

likely impose large costs on the states, 

which would face fines and suits for not 

implementing air pollution prevention 

plans in 1997, even though they were 

not on notice at the time.’’ Id. at 68. 

Similarly here, it would be unfair to 

penalize the area by applying to it for 

purpose of redesignation, additional SIP 

requirements under subpart 2 that were 

not in effect or yet due at the time it 

submitted its redesignation request, or 

the time that the tri-state CincinnatiHamilton Area attained the standard. 

With respect to the requirements 

under the 1-hour ozone NAAQS, 

Northern Kentucky had been 

redesignated attainment subject to a 

maintenance plan under section 175A. 

The DC Circuit Court’s decisions do not 

impact redesignation requests for these 

types of areas, except to the extent that 

the Court, in its June 8th decision, 

clarified that for those areas with 1-hour 

MVEBs in their maintenance plans, antibacksliding requires that those 1-hour 

budgets must be used for 8-hour 

conformity determinations until they 

are replaced by 1997 8-hour budgets. To 

meet this requirement, conformity 

determinations in such areas must 

comply with the applicable 

requirements of EPA’s conformity 

regulations at 40 CFR part 93. 

With regard to the anti-backsliding 

provisions for the 1-hour NAAQS that 

the DC Circuit Court found were not 

properly retained, Northern Kentucky is 

an attainment area subject to a 

maintenance plan for the 1-hour 

NAAQS, and 1-hour anti-backsliding 

requirements no longer apply to an area 

that is redesignated to attainment of the 

1-hour ozone NAAQS. As a result, the 

decisions in SCAQMD should not alter 

any requirements that would preclude 

EPA from finalizing the redesignation of 

Northern Kentucky to attainment for the 

1997 8-hour ozone NAAQS. 

On January 29, 2010, Kentucky 

requested that EPA redesignate the 

Kentucky portion of the tri-state 

Cincinnati-Hamilton Area to attainment 

for the 1997 8-hour ozone NAAQS. The 

redesignation request included three 

years of complete, quality-assured 

ambient air quality data for the ozone 

seasons (March 1st through October 

31st) of 2007–2009, demonstrating that 

the 1997 8-hour ozone NAAQS has been 

achieved for the entire tri-state 

Cincinnati-Hamilton Area. Under the 

CAA, nonattainment areas may be 

redesignated to attainment if EPA 

determines that the most recent three 

years of complete, quality-assured data 

show that the Area has attained the 

standard, and the Area meets the other 

redesignation requirements set forth in 

CAA section 107(d)(3)(E). 

III. What are the Criteria for 

Redesignation? 

The CAA provides the requirements 

for redesignating a nonattainment area 

to attainment. Specifically, section 

107(d)(3)(E) of the CAA allows for 

redesignation providing that: (1) The 

Administrator determines that the area 

has attained the applicable NAAQS; (2) 

the Administrator has fully approved 

the applicable implementation plan for 

the area under section 110(k); (3) the 

Administrator determines 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; (4) the 

Administrator has fully approved a 

maintenance plan for the area as 

meeting the requirements of section 

175A; and (5) the state containing such 

area has met all requirements applicable 

to the area for purposes of redesignation 

under section 110 and part D of the 

CAA. 

EPA provided guidance on 

redesignation in the General Preamble 

for the Implementation of title I of the 

CAA Amendments of 1990, on April 16, 

1992 (57 FR 13498), and supplemented 

this guidance on April 28, 1992 (57 FR 

18070). EPA has provided further 

guidance on processing redesignation 

requests in the following documents: 

1. ‘‘Ozone and Carbon Monoxide 

Design Value Calculations,’’ 

Memorandum from Bill Laxton, 

Director, Technical Support Division, 

June 18,1990; 

2. ‘‘Maintenance Plans for 

Redesignation of Ozone and Carbon 

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Monoxide Nonattainment Areas,’’ 

Memorandum from G. T. Helms, Chief, 

Ozone/Carbon Monoxide Programs 

Branch, April 30, 1992; 

3. ‘‘Contingency Measures for Ozone 

and Carbon Monoxide (CO) 

Redesignations,’’ Memorandum from G. 

T. Helms, Chief, Ozone/Carbon 

Monoxide Programs Branch, June 1, 

1992; 

4. ‘‘Procedures for Processing Requests 

to Redesignate Areas to Attainment,’’ 

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, September 4, 1992 (hereafter 

referred to as the ‘‘Calcagni 

Memorandum’’); 

5. ‘‘State Implementation Plan (SIP) 

Actions Submitted in Response to Clean 

Air Act (CAA) Deadlines,’’ 

Memorandum from John Calcagni, 

Director, Air Quality Management 

Division, October 28, 1992; 

6. ‘‘Technical Support Documents 

(TSDs) for Redesignation of Ozone and 

Carbon Monoxide (CO) Nonattainment 

Areas,’’ Memorandum from G. T. Helms, 

Chief, Ozone/Carbon Monoxide 

Programs Branch, August 17, 1993; 

7. ‘‘State Implementation Plan (SIP) 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide (CO) National Ambient Air 

Quality Standards (NAAQS) On or After 

November 15, 1992,’’ Memorandum 

from Michael H. Shapiro, Acting 

Assistant Administrator for Air and 

Radiation, September 17, 1993; 

8. ‘‘Use of Actual Emissions in 

Maintenance Demonstrations for Ozone 

and CO Nonattainment Areas,’’ 

Memorandum from D. Kent Berry, 

Acting Director, Air Quality 

Management Division, November 30, 

1993; 

9. ‘‘Part D New Source Review (Part D 

NSR) Requirements for Areas 

Requesting Redesignation to 

Attainment,’’ Memorandum from Mary 

D. Nichols, Assistant Administrator for 

Air and Radiation, October 14, 1994; 

and 

10. ‘‘Reasonable Further Progress, 

Attainment Demonstration, and Related 

Requirements for Ozone Nonattainment 

Areas Meeting the Ozone National 

Ambient Air Quality Standard,’’ 

Memorandum from John S. Seitz, 

Director, Office of Air Quality Planning 

and Standards, May 10, 1995. 

IV. Why is EPA proposing these 

actions? 

On January 29, 2010, Kentucky 

requested redesignation of Northern 

Kentucky (as part of the tri-state 

Cincinnati-Hamilton 1997 8-hour ozone 

nonattainment area) to attainment for 

the 1997 8-hour ozone NAAQS. EPA’s 

preliminary evaluation indicates that 

the tri-state Cincinnati-Hamilton Area 

has attained the 1997 8-hour ozone 

NAAQS and that Northern Kentucky, 

upon final approval of its 2008 

emissions inventory, meets the 

requirements for redesignation set forth 

in section 107(d)(3)(E), including the 

maintenance plan requirements under 

section 175A of the CAA. EPA is also 

proposing to approve the 2008 baseline 

emission inventory because EPA 

believes that it satisfies the 

requirements of section 172(c)(3). EPA 

is finding that the 2015 and 2020 NOX

and VOC MVEBs which are included in 

the maintenance plan are adequate, and 

EPA is proposing to approve them along 

with the requested redesignation. 

V. What is the effect of EPA’s proposed 

actions? 

EPA’s proposed actions establish the 

basis upon which EPA may take final 

action on the issues being proposed for 

approval today. Approval of Kentucky’s 

redesignation request would change the 

legal designation of the Kentucky 

portion of the tri-state CincinnatiHamilton 1997 8-hour ozone 

nonattainment area (Boone, Campbell 

and Kenton Counties) from 

nonattainment to attainment for the 

1997 8-hour ozone NAAQS. 40 CFR part 

81. It would also incorporate into the 

Kentucky SIP a plan for Northern 

Kentucky to maintain the 1997 8-hour 

ozone NAAQS in the Area through 

2020. This maintenance plan includes 

contingency measures to remedy future 

violations of the 1997 8-hour ozone 

NAAQS. The maintenance plan also 

includes NOX and VOC MVEBs for 

Northern Kentucky, and final approval 

of the MVEB’s would establish them in 

the approved SIP. Table 1 identifies the 

state NOX and VOC MVEBs for the years 

2015 and 2020 for Northern Kentucky. 

TABLE 1—NORTHERN KENTUCKY 1997 8-HOUR OZONE NOX AND VOC MVEBS

[Summer season tons per day] 

2015 2020 

NOX .................................................................................................................................................................. 14.40 13.27 

VOC ................................................................................................................................................................. 9.76 10.07 

Approval of Kentucky’s maintenance 

plan would also result in approval of 

the NOX and VOC MVEBs. Additionally, 

EPA is notifying the public of the status 

of its adequacy determination for the 

2015 and 2020 NOX and VOC state 

MVEBs pursuant to 40 CFR 93.118(f)(1). 

A final approval of EPA’s proposed 

action with respect to the 2008 

emissions inventory would also result 

in approval of that inventory under 

section 172(c)(3). 

VI. What is EPA’s analysis of the 

request? 

EPA is proposing to make the 

determination that the tri-state 

Cincinnati-Hamilton 1997 8-hour ozone 

nonattainment area has attained the 

1997 8-hour ozone standard, and that all 

other redesignation criteria have been 

met for the Kentucky portion of the tristate Cincinnati-Hamilton Area. The 

basis for EPA’s determination for the 

Area is discussed in greater detail 

below. 

Criteria (1)—The Area has attained 

the 1997 8-hour ozone NAAQS. 

EPA is proposing to determine that 

the tri-state Cincinnati-Hamilton Area 

has attained the 1997 8-hour ozone 

NAAQS. An area may be considered to 

be attaining the 1997 8-hour ozone 

NAAQS if as determined in accordance 

with 40 CFR 50.10 and Appendix I of 

part 50, it meets the NAAQS based on 

three complete, consecutive calendar 

years of quality-assured air quality 

monitoring data. To attain the standard, 

the 3-year average of the fourth-highest 

daily maximum 8-hour average ozone 

concentrations measured at each 

monitor within an area over each year 

must not exceed 0.08 ppm. Based on the 

data handling and reporting convention 

described in 40 CFR part 50, Appendix 

I, the standard is attained if the design 

value is 0.084 ppm or below. The data 

must be collected and quality-assured in 

accordance with 40 CFR part 58, and 

recorded in the EPA Air Quality System 

(AQS). The monitors generally should 

have remained at the same location for 

the duration of the monitoring period 

required for demonstrating attainment. 

EPA reviewed data from the ambient 

ozone monitoring stations in the tri-state 

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Cincinnati-Hamilton Area for the ozone 

seasons from 2007–2009. These data 

have been quality-assured and certified, 

and are recorded in AQS. The fourthhighest 8-hour ozone average for 2007, 

2008 and 2009, and the 3-year average 

of these values (i.e., design values), are 

summarized in the following table: 

TABLE 2—ANNUAL 4TH MAX HIGH AND DESIGN VALUE CONCENTRATION FOR 8-HOUR OZONE FOR THE CINCINNATIHAMILTON OH–KY–IN AREA

[Parts per million] 

State* County Monitor 2007 

4th high (ppm) 

2008 

4th high (ppm) 

2009 

4th high (ppm) 

2007–2009 

average (ppm) 

Ohio ..................... Butler ................. Hamilton, 39–017–0004 ................. 0.091 0.071 0.073 0.078 

Middletown, 39–017–1004 ............. 0.091 0.079 0.076 0.082 

Clermont ............ Batavia, 39–025–0022 ................... 0.086 0.071 0.069 0.075 

Clinton ................ Wilmington, 39–027–1022 ............. 0.082 0.076 0.070 0.076 

Hamilton ............. Grooms Rd., Cincinnati, 39–061– 

0006.

0.089 0.086 0.072 0.082 

Cleves, 39–061–0010 .................... 0.086 0.077 0.065 0.076 

250 Wm. Howard Taft, Cincinnati, 

39–061–0040.

0.086 0.080 0.074 0.080 

Warren ............... Lebanon, 39–165–0007 ................. 0.088 0.082 0.077 0.082 

Kentucky ............. Boone ................ KY 338 & Lower River Road, 21– 

037–3002.

0.078 0.064 0.064 0.068 

Campbell ............ Highland Heights, 21–117–0007 ... 0.086 0.075 0.068 0.076 

Kenton ............... Covington, 21–117–0007 ............... 0.085 0.073 0.074 0.077 

* There is no monitor in the Indiana portion of this Area. 

As discussed above, the design value 

for an area is the highest 3-year average 

of the annual fourth-highest 8-hour 

ozone value recorded at any monitor in 

the Area. Therefore, the most recent 3- 

year design value (2007–2009) for the 

tri-state Cincinnati-Hamilton Area is 

0.082 ppm, which meets the standard as 

described above. Currently available 

data show that the Area continues to 

attain the NAAQS. If the Area does not 

continue to attain until EPA finalizes 

the redesignation, EPA will not go 

forward with the redesignation. As 

discussed in more detail below, 

Kentucky has committed to continue 

monitoring in this Area in accordance 

with 40 CFR part 58. EPA proposes to 

find that the tri-state CincinnatiHamilton Area has attained the 1997 8- 

hour ozone NAAQS. 

Criteria (2)—Kentucky has a fully 

approved SIP under section 110(k) for 

Northern Kentucky and Criteria (5)— 

Kentucky has met all Applicable 

Requirements under Section 110 and 

part D of the CAA. 

Below is a summary of how these two 

criteria were met. 

EPA proposes to find that Kentucky 

has met all applicable SIP requirements 

for Northern Kentucky under section 

110 of the CAA (general SIP 

requirements) for purposes of 

redesignation. EPA also proposes to find 

that, if EPA finalizes approval of the 

2008 emissions inventory submitted 

with the redesignation request, the 

Kentucky SIP satisfies the criterion that 

it meet applicable SIP requirements for 

purposes of redesignation under part D 

of title I of the CAA (requirements 

specific to subpart 1 nonattainment 

areas) in accordance with section 

107(d)(3)(E)(v). In addition, EPA 

proposes to determine that, upon final 

approval of the emissions inventory, the 

SIP is fully approved with respect to all 

requirements applicable for purposes of 

redesignation in accordance with 

section 107(d)(3)(E)(ii). In making these 

determinations, EPA ascertained which 

requirements are applicable to the Area 

and that if applicable, they are fully 

approved under section 110(k). SIPs 

must be fully approved only with 

respect to applicable requirements. As 

discussed more fully below, SIPs must 

be fully approved only with respect to 

requirements that became due prior to 

the submission of the redesignation 

request. 

a. Northern Kentucky has met all 

Applicable Requirements under section 

110 and part D of the CAA. 

The September 4, 1992, Calcagni 

Memorandum describes EPA’s 

interpretation of section 107(d)(3)(E). 

Under this interpretation, to qualify for 

redesignation, states requesting 

redesignation to attainment must meet 

only the relevant CAA requirements that 

come due prior to the submittal of a 

complete redesignation request. See also 

Michael Shapiro Memorandum, (‘‘SIP 

Requirements for Areas Submitting 

Requests for Redesignation to 

Attainment of the Ozone and Carbon 

Monoxide NAAQS On or After 

November 15, 1992,’’ September 17, 

1993); 60 FR 12459, 12465–66 (March 7, 

1995) (redesignation of Detroit-Ann 

Arbor, Michigan). Applicable 

requirements of the CAA that come due 

subsequent to the area’s submittal of a 

complete redesignation request remain 

applicable until a redesignation is 

approved, but are not required as a 

prerequisite to redesignation. See 

section 175A(c) of the CAA; Sierra Club, 

375 F.3d 537; see also 68 FR 25424, 

25427 (May 12, 2003) (redesignation of 

St. Louis, Missouri). 

If EPA’s proposed determination of 

attainment for the tri-state CincinnatiHamilton Area is finalized, under 40 

CFR 51.918, if that determination is 

finalized, the requirements to submit 

certain planning SIPs related to 

attainment, including attainment 

demonstration requirements (the RACM 

requirement of section 172(c)(1) of the 

CAA, the RFP and attainment 

demonstration requirements of sections 

172(c)(2) and (c)(6) of the CAA, and the 

requirement for contingency measures 

of section 172(c)(9) of the CAA) would 

not be applicable to the Area so long as 

it continues to attain the NAAQS and 

would cease to apply upon 

redesignation. In addition, in the 

context of redesignations, EPA has 

interpreted requirements related to 

attainment as not applicable for 

purposes of redesignations. For 

example, in the General Preamble, EPA 

stated that: 

[t]he section 172(c)(9) requirements are 

directed at ensuring RFP and attainment by 

the applicable date. These requirements no 

longer apply to an area that has attained the 

standard and is eligible for redesignation. 

Furthermore, section 175A for maintenance 

plans * * * provides specific requirements 

for contingency measures that effectively 

supersede the requirements of section 

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1On October 27, 1998 (63 FR 57356), EPA issued 

a NOX SIP Call requiring the District of Columbia 

and 22 states to reduce emissions of NOX in order 

to reduce the transport of ozone and ozone 

precursors. In compliance with EPA’s NOX SIP Call, 

Kentucky has developed rules governing the control 

of NOX emissions from Electric Generating Units 

(EGUs), major non-EGU industrial boilers, major 

cement kilns, and internal combustion engines. 

EPA approved Kentucky’s rules as fulfilling Phase 

I and Phase II of the NOX SIP Call on October 23, 

2009 (74 FR 54755). 

172(c)(9) for these areas. ‘‘General Preamble 

for the Interpretation of Title I of the Clean 

Air Act Amendments of 1990’’ (‘‘General 

Preamble’’), 57 FR 13498, 13564 (April 16, 

1992). 

See also Calcagni Memorandum at 

page 6 (‘‘The requirements for 

reasonable further progress and other 

measures for attainment will not apply 

for redesignations because they only 

have meaning for areas not attaining the 

standard’’). 

General SIP requirements. Section 

110(a)(2) of title I of the CAA delineates 

the general requirements for a SIP, 

which include enforceable emissions 

limitations and other control measures, 

means, or techniques, provisions for the 

establishment and operation of 

appropriate devices necessary to collect 

data on ambient air quality, and 

programs to enforce the limitations. 

General SIP elements and requirements 

are delineated in section 110(a)(2) of 

title I, part A of the CAA. These 

requirements include, but are not 

limited to, the following: submittal of a 

SIP that has been adopted by the state 

after reasonable public notice and 

hearing; provisions for establishment 

and operation of appropriate procedures 

needed to monitor ambient air quality; 

implementation of a source permit 

program; provisions for the 

implementation of part C requirements 

(Prevention of Significant Deterioration 

(PSD)) and provisions for the 

implementation of part D requirements 

(NSR permit programs); provisions for 

air pollution modeling; and provisions 

for public and local agency participation 

in planning and emission control rule 

development. 

Section 110(a)(2)(D) requires that SIPs 

contain certain measures to prevent 

sources in a state from significantly 

contributing to air quality problems in 

another state. To implement this 

provision, EPA has required certain 

states to establish programs to address 

the transport of air pollutants (NOX SIP 

Call 1 and Clean Air Interstate Rule 

(CAIR) (70 FR 25162, May 12, 2005)). 

However, the section 110(a)(2)(D) 

requirements for a state are not linked 

with a particular nonattainment area’s 

designation and classification in that 

state. EPA believes that the 

requirements linked with a particular 

nonattainment area’s designation and 

classifications are the relevant measures 

to evaluate in reviewing a redesignation 

request. The transport SIP submittal 

requirements, where applicable, 

continue to apply to a state regardless of 

the designation of any one particular 

area in the state. Thus, we do not 

believe that the CAA’s interstate 

transport requirements should be 

construed to be applicable requirements 

for purposes of redesignation. 

In addition, EPA believes that the 

other section 110 elements not 

connected with nonattainment plan 

submissions and not linked with an 

area’s attainment status are not 

applicable requirements for purposes of 

redesignation. A state remains subject to 

these requirements after an area is 

redesignated to attainment. The section 

110 and part D requirements, which are 

linked with a particular area’s 

designation and classification, are the 

relevant measures to evaluate in 

reviewing a redesignation request. This 

approach is consistent with EPA’s 

existing policy on applicability (i.e., for 

redesignations) of conformity and 

oxygenated fuels requirements, as well 

as with section 184 ozone transport 

requirements. See Reading, 

Pennsylvania, proposed and final 

rulemakings (61 FR 53174–53176, 

October 10, 1996), (62 FR 24826, May 7, 

1997); Cleveland-Akron-Loraine, Ohio, 

final rulemaking (61 FR 20458, May 7, 

1996); and Tampa, Florida, final 

rulemaking at (60 FR 62748, December 

7, 1995). See also the discussion on this 

issue in the Cincinnati, Ohio 

redesignation (65 FR 37890, June 19, 

2000), and in the Pittsburgh, 

Pennsylvania redesignation (66 FR 

50399, October 19, 2001). 

EPA believes that section 110 

elements not linked to the Area’s 

nonattainment status are not applicable 

for purposes of redesignation. Therefore, 

as was discussed above, for purposes of 

redesignation, they are not considered 

applicable requirements. Nonetheless, 

EPA notes it has previously approved 

provisions in the Kentucky SIP 

addressing section 110 elements under 

the 1-hour ozone NAAQS (65 FR 37879, 

June 19, 2000) The Commonwealth 

believes that the section 110 SIP 

approved for the 1-hour ozone NAAQS 

are sufficient to meet the requirements 

under the 1997 8-hour ozone NAAQS. 

The Commonwealth has submitted a 

letter dated December 10, 2007, setting 

forth its belief that the section 110 SIP 

approved for the 1-hour ozone NAAQS 

is also sufficient to meet the 

requirements under the 1997 8-hour 

ozone NAAQS. EPA has not yet 

approved this submission, but such 

approval is not necessary for purposes 

of redesignation. 

Part D requirements. EPA proposes 

that if EPA approves the 

Commonwealth’s base year emissions 

inventory, which is part of the 

maintenance plan submittal, the 

Kentucky SIP will meet applicable SIP 

requirements under part D of the CAA. 

We believe the emissions inventory is 

approvable because the 2008 VOC and 

NOX emissions for Northern Kentucky 

were developed consistent with EPA 

guidance for emission inventories and 

the choice of the 2008 base year is 

appropriate because it represents the 

2007–2009 period when the 1997 8 hour 

ozone NAAQS was not violated. 

Part D, subpart 1 applicable SIP 

requirements. EPA has determined that, 

if EPA finalizes the approval of the base 

year emissions inventories discussed in 

section IX. of this rulemaking, the 

Kentucky SIP will meet the applicable 

SIP requirements for their portions of 

the tri-state Cincinnati-Hamilton Area 

applicable for purposes of redesignation 

under part D of the CAA. Subpart 1 of 

part D, found in sections 172–176 of the 

CAA, sets for the basic nonattainment 

requirements applicable to all 

nonattainment areas. Subpart 2 of part 

D, which includes section 182 of the 

CAA, establishes additional specific 

requirements depending on the area’s 

nonattainment classification. Since the 

tri-state Cincinnati-Hamilton Area (of 

which Northern Kentucky is a part) was 

not classified under subpart 2 at the 

time the redesignation request was 

submitted, the subpart 2 requirements 

do not apply for purposes of evaluating 

the Commonwealth’s redesignation 

request. The applicable subpart 1 

requirements are contained in sections 

172(c)(1)–(9) and in section 176. 

For purposes of evaluating this 

redesignation request, the applicable 

part D, subpart 1 SIP requirements for 

all nonattainment areas are contained in 

sections 172–176. A thorough 

discussion of the requirements 

contained in section 172 can be found 

in the General Preamble for 

Implementation of title I (57 FR 13498). 

Subpart 1 Section 172 Requirements. 

For purposes of evaluating this 

redesignation request, the applicable 

section 172 SIP requirements for the tristate Cincinnati-Hamilton area are 

contained in sections 172(c)(1)–(9). A 

thorough discussion of the requirements 

contained in section 172 can be found 

in the General Preamble for 

Implementation of Title I (57 FR 13498, 

April 16, 1992). 

Section 172(c)(1) requires the plans 

for all nonattainment areas to provide 

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2CAA Section 176(c)(4)(E) requires states to 

submit revisions to their SIPs to reflect certain 

Federal criteria and procedures for determining 

transportation conformity. Transportation 

conformity SIPs are different from the motor vehicle 

emission budgets that are established in control 

strategy SIPs and maintenance plans. 

for the implementation of all RACM as 

expeditiously as practicable and to 

provide for attainment of the national 

primary ambient air quality standards. 

EPA interprets this requirement to 

impose a duty on all nonattainment 

areas to consider all available control 

measures and to adopt and implement 

such measures as are reasonably 

available for implementation in each 

area as components of the area’s 

attainment demonstration. On December 

7, 2007, the Commonwealth submitted 

an attainment demonstration and 

identified the control measures 

necessary to attain the NAAQS in the 

tri-state Cincinnati-Hamilton Area. 

Similar attainment demonstrations were 

submitted by Ohio and Indiana as part 

of the tri-state Cincinnati-Hamilton 1997 

8-hour ozone nonattainment Area. 

However, because attainment has been 

reached, no additional measures are 

needed to provide for attainment, and 

section 172(c)(1) requirements are no 

longer considered to be applicable as 

long as the area continues to attain the 

standard until redesignation. 40 CFR 

51.918. If EPA finalizes approval of the 

redesignation of the Kentucky portion of 

the tri-state Cincinnati-Hamilton Area, 

EPA will take no further action on the 

attainment demonstration submitted by 

the Commonwealth of Kentucky for this 

Area. 

The RFP requirement under section 

172(c)(2) is defined as progress that 

must be made toward attainment. This 

requirement is not relevant for purposes 

of redesignation because the tri-state 

Cincinnati-Hamilton Area has 

monitored attainment of the ozone 

NAAQS. (General Preamble, 57 FR 

13564). See also 40 CFR 51.918. In 

addition, because the tri-state 

Cincinnati-Hamilton Area has attained 

the ozone NAAQS and is no longer 

subject to an RFP requirement, the 

requirement to submit the section 

172(c)(9) contingency measures is not 

applicable for purposes of 

redesignation. Id. 

Section 172(c)(3) requires submission 

and approval of a comprehensive, 

accurate and current inventory of actual 

emissions. As part of Kentucky’s 

redesignation request for the tri-state 

Cincinnati-Hamilton Area, the 

Commonwealth submitted a 2008 base 

year emissions inventory. As discussed 

below in section IX., EPA is proposing 

to approve the 2008 base year inventory 

that Kentucky submitted with the 

redesignation request as meeting the 

section 172(c)(3) emissions inventory 

requirement. 

Section 172(c)(4) requires the 

identification and quantification of 

allowable emissions for major new and 

modified stationary sources to be 

allowed in an area, and section 172(c)(5) 

requires source permits for the 

construction and operation of new and 

modified major stationary sources 

anywhere in the nonattainment area. 

EPA has determined that, since PSD 

requirements will apply after 

redesignation, areas being redesignated 

need not comply with the requirement 

that a NSR program be approved prior 

to redesignation, provided that the Area 

demonstrates maintenance of the 

NAAQS without part D NSR. A more 

detailed rationale for this view is 

described in a memorandum from Mary 

Nichols, Assistant Administrator for Air 

and Radiation, dated October 14, 1994, 

entitled, ‘‘Part D New Source Review 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ Kentucky 

has demonstrated that the tri-state 

Cincinnati-Hamilton Area will be able 

to maintain the standard without part D 

NSR in effect; therefore, EPA concludes 

that the Commonwealth need not have 

fully approved part D NSR programs 

prior to approval of the redesignation 

request. The Commonwealth’s PSD 

programs will become effective in the 

tri-state Cincinnati-Hamilton Area upon 

redesignation to attainment. See 

rulemakings for Detroit, Michigan (60 

FR 12467–12468, March 7, 1995); 

Cleveland-Akron-Lorain, Ohio (61 FR 

20458, 20469–20470, May 7, 1996); 

Louisville, Kentucky (66 FR 53665, 

October 23, 2001); and Grand Rapids, 

Michigan (61 FR 31834–31837, June 21, 

1996). 

Section 172(c)(6) requires the SIP to 

contain control measures necessary to 

provide for attainment of the standard. 

Because attainment has been reached, 

no additional measures are needed to 

provide for attainment. 

Section 172(c)(7) requires the SIP to 

meet the applicable provisions of 

section 110(a)(2). As noted above, we 

believe the Kentucky SIP meets the 

requirements of section 110(a)(2) 

applicable for purposes of 

redesignation. 

Section 176 Conformity 

Requirements. Section 176(c) of the 

CAA requires states to establish criteria 

and procedures to ensure that federallysupported or funded projects conform to 

the air quality planning goals in the 

applicable SIP. The requirement to 

determine conformity applies to 

transportation plans, programs and 

projects developed, funded or approved 

under title 23 of the United States Code 

(U.S.C.) and the Federal Transit Act 

(transportation conformity) as well as to 

all other federally supported or funded 

projects (general conformity). State 

transportation conformity SIP revisions 

must be consistent with Federal 

conformity regulations relating to 

consultation, enforcement and 

enforceability that EPA promulgated 

pursuant to its authority under the CAA. 

EPA believes it is reasonable to 

interpret the conformity SIP 

requirements 2 as not applying for 

purposes of evaluating the redesignation 

request under section 107(d) because 

state conformity rules are still required 

after redesignation and Federal 

conformity rules apply where state rules 

have not been approved. See Wall, 265 

F.3d 426 (upholding this interpretation); 

See also 60 FR 62748 (December 7, 

1995, Tampa, Florida). Kentucky 

submitted its transportation conformity 

SIP for 1997 8-hour ozone and 

particulate matter NAAQS on December 

31, 2008. EPA proposed approval on 

December 4, 2009 (74 FR 63697) for 

Kentucky’s transportation conformity 

SIP. EPA did not receive any comments 

for its proposed approval of Kentucky’s 

transportation conformity SIP and is in 

the process of finalizing its action for 

this submission. Kentucky did not have 

a Federally-approved transportation 

conformity SIP for the 1-hour NAAQS, 

and thus approval of Kentucky’s 

December 31, 2008, submittal will 

establish Kentucky’s first Federallyapproved transportation conformity SIP. 

However, conformity analyses are 

performed pursuant to EPA’s Federal 

conformity rules. 

NSR Requirements. EPA has also 

determined that areas being 

redesignated need not comply with the 

requirement that a NSR program be 

approved prior to redesignation, 

provided that the area demonstrates 

maintenance of the standard without a 

part D NSR program in effect since PSD 

requirements will apply after 

redesignation. The rationale for this 

view is described in a memorandum 

from Mary Nichols, Assistant 

Administrator for Air and Radiation, 

dated October 14, 1994, entitled ‘‘Part D 

New Source Review (Part D NSR) 

Requirements for Areas Requesting 

Redesignation to Attainment.’’ Kentucky 

has demonstrated that Northern 

Kentucky (as part of the tri-state 

Cincinnati-Hamilton Area) will be able 

to maintain the standard without a part 

D NSR program in effect, and therefore, 

Kentucky need not have a fullyapproved part D NSR program prior to 

approval of the redesignation request. 

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However, Kentucky currently has a 

fully-approved part D NSR program in 

place. Kentucky has a fully-approved 

part D NSR program. Kentucky’s PSD 

program will become effective in 

Northern Kentucky upon redesignation 

to attainment. See rulemakings for 

Detroit, Michigan (60 FR 12467–12468, 

March 7, 1995); Cleveland-AkronLorraine, Ohio (61 FR 20458, 20469–70, 

May 7, 1996); Louisville, Kentucky (66 

FR 53665, October 23, 2001); and Grand 

Rapids, Michigan (61 FR 31834–31837, 

June 21, 1996). Thus, Northern 

Kentucky has satisfied all applicable 

requirements for purposes of 

redesignation under section 110 and 

part D of the CAA. 

b. Northern Kentucky has a fully 

approved applicable SIP under section 

110(k) of the CAA. 

If EPA issues a final approval of the 

base year emissions inventories, EPA 

will have fully approved the applicable 

Kentucky SIP for the Kentucky portion 

of the tri-state Cincinnati-Hamilton 8- 

hour ozone nonattainment area, under 

section 110(k) of the CAA for all 

requirements applicable for purposes of 

redesignation. EPA may rely on prior 

SIP approvals in approving a 

redesignation request, see Calcagni 

Memorandum at p. 3; Southwestern 

Pennsylvania Growth Alliance v. 

Browner, 144 F.3d 984, 989–90 (6th Cir. 

1998); Wall, 265 F.3d 426, plus any 

additional measures it may approve in 

conjunction with a redesignation action. 

See 68 FR 25426 (May 12, 2003) and 

citations therein. Following passage of 

the CAA of 1970, Kentucky has adopted 

and submitted, and EPA has fully 

approved at various times, provisions 

addressing the various 1-hour ozone 

NAAQS SIP elements applicable in the 

Cincinnati-Hamilton Area (65 FR 37879, 

June 19, 2000). 

As indicated above, EPA believes that 

the section 110 elements not connected 

with nonattainment plan submissions 

and not linked to the area’s 

nonattainment status are not applicable 

requirements for purposes of 

redesignation. EPA also believes that 

since the part D subpart 2 requirements 

did not become due prior to submission 

of the redesignation request, they also 

are therefore not applicable 

requirements for purposes of 

redesignation. Sierra Club v. EPA, 375 

F.3d 537 (7th Cir. 2004); 68 FR 25424, 

25427 (May 12, 2003) (redesignation of 

the St. Louis-East St. Louis Area to 

attainment of the 1-hour ozone 

NAAQS). With the approval of the 

emissions inventory, EPA will have 

approved all Part D subpart 1 

requirements applicable for purposes of 

redesignation. 

Criteria (3)—The air quality 

improvement in the tri-state CincinnatiHamilton 1997 8-hour Ozone NAAQS 

Nonattainment Area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP and 

applicable Federal air pollution control 

regulations and other permanent and 

enforceable reductions. 

Measured reductions in ozone 

concentrations in and around Northern 

Kentucky are largely attributable to 

reductions from emission sources—in 

Kentucky as well as Ohio and Indiana— 

of VOC and NOX, which are precursors 

in the formation of ozone. See 75 FR 

8879. EPA believes that Kentucky has 

demonstrated that the observed air 

quality improvement in the tri-state 

Cincinnati-Hamilton Area is due to 

permanent and enforceable reductions 

in emissions resulting from 

implementation of the SIP, Federal 

measures, and other state adopted 

measures. Additionally, new emissions 

control programs for fuels and motor 

vehicles will help ensure a continued 

decrease in emissions throughout the 

region. The following is a discussion of 

permanent and enforceable measures 

that have been implemented in the 

Northern Kentucky Area. 

i. Stationary Source NOX Rules. 

Kentucky has developed rules governing 

the control of NOX emissions from 

EGUs, major non-EGU industrial boilers, 

major cement kilns, and internal 

combustion engines. EPA approved 

Kentucky’s rules as fulfilling Phase I 

and Phase II of the NOX SIP Call on 

October 23, 2009 (74 FR 54755). 

Kentucky began complying with Phase 

I of this rule in 2004. Compliance with 

Phase II of the SIP Call, which requires 

the control NOX emissions from large 

internal combustion engines, began in 

Kentucky in 2007, and resulted in a 41 

percent NOX reduction from 1995 to 

2008 levels. 

ii. Federal Emission Control 

Measures. Reductions in VOC and NOX

emissions have occurred statewide and 

in upwind areas as a result of Federal 

emission control measures, with 

additional emission reductions expected 

to occur in the future. Federal emission 

control measures include the following. 

Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards. 

These emission control requirements 

result in lower VOC and NOX emissions 

from new cars and light duty trucks, 

including sport utility vehicles. The 

Federal rules were phased in between 

2004 and 2009. EPA has estimated that, 

by the end of the phase-in period, the 

following vehicle NOX emission 

reductions will occur nationwide: 

passenger cars (light duty vehicles) (77 

percent); light duty trucks, minivans, 

and sports utility vehicles (86 percent); 

and, larger sports utility vehicles, vans, 

and heavier trucks (69 to 95 percent). 

VOC emission reductions are expected 

to range from 12 to 18 percent, 

depending on vehicle class, over the 

same period. Some of these emission 

reductions occurred by the attainment 

years (2007–2009) and additional 

emission reductions will occur during 

the maintenance period. 

Heavy-Duty Diesel Engine Rule. EPA 

issued this rule in July 2000. This rule 

includes standards limiting the sulfur 

content of diesel fuel, which went into 

effect in 2004. A second phase took 

effect in 2007 which further reduced the 

highway diesel fuel sulfur content to 15 

ppm, leading to additional reductions in 

combustion NOX and VOC emissions. 

This rule is expected to achieve a 95 

percent reduction in NOX emissions 

from diesel trucks and busses. 

Non-Road Diesel Rule. EPA issued 

this rule in 2004. This rule applies to 

diesel engines used in industries, such 

as construction, agriculture, and mining. 

It is estimated that compliance with this 

rule will cut NOX emissions from nonroad diesel engines by up to 90 percent. 

This rule is currently achieving 

emission reductions, but will not be 

fully implemented until 2010. 

iii. Control Measures in Upwind 

Areas. On October 27, 1998 (63 FR 

57356), EPA issued a NOX SIP Call 

requiring the District of Columbia and 

22 states to reduce emissions of NOX. 

Affected states were required to comply 

with Phase I of the SIP Call beginning 

in 2004, and Phase II beginning in 2007. 

The reduction in NOX emissions has 

resulted in lower concentrations of 

transported ozone entering the 

Cincinnati-Hamilton area. Emission 

reductions resulting from regulations 

developed in response to the NOX SIP 

Call are permanent and enforceable. 

Additional measures implemented by 

the Commonwealth of Kentucky which 

are providing emission reduction 

benefits for the Northern Kentucky 

Area: 

• All new major VOC sources locating 

in Kentucky are subject to RACT; 

• All major modifications to existing 

major VOC sources are subject to RACT 

requirements; 

• Implementation of a program to 

enhance inspection of stationary sources 

to ensure emission control equipment is 

functioning properly; 

• Requirements for Stage II vapor 

recovery; 

• Federal Motor Vehicle Control 

Standards apply in Kentucky; 

• Reformulated gasoline; 

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• Federal controls on VOC content for 

Architectural and Maintenance Paints, 

Auto Body Shops, and Consumer 

Products; 

• Open burning ban during summer 

ozone season for Northern Kentucky; 

and 

• PSD requirements. 

In addition to the measures listed 

above, further reductions will be 

achieved throughout the 

implementation of new federal 

regulations to further control the 

emission of Hazardous Air Pollutants 

that are VOC and the emission control 

programs being imposed as a result of 

enforcement agreements with some 

sources in the area. The reductions 

cannot be quantified at this time, but 

will be reflected in future triennial 

assessments. 

Regarding point source emissions for 

the Kentucky portion of the tri-state 

Cincinnati-Hamilton Area, Duke 

Power’s East Bend plant located in 

Boone County operates a wet lime 

scrubber, which controls sulfur dioxide 

emissions; and a modified furnace 

designed with low NOX burners and 

selective catalytic reduction to reduce 

NOX emissions. 

Criteria (4)—The area has a fully 

approved maintenance plan pursuant to 

section 175A of the CAA. 

In conjunction with its request to 

redesignate Northern Kentucky (as part 

of the tri-state Cincinnati-Hamilton 1997 

8-hour ozone nonattainment area) to 

attainment, Kentucky submitted a SIP 

revision to provide for the maintenance 

of the 1997 8-hour ozone NAAQS for at 

least 10 years after the effective date of 

redesignation to attainment and 

commits to submitting a revised 10 year 

maintenance plan eight years after the 

redesignation is approved if they are 

still required to do so at that time. 

a. What is required in a maintenance 

plan? 

Section 175A of the CAA sets forth 

the elements of a maintenance plan for 

areas seeking redesignation from 

nonattainment to attainment. Under 

section 175A, the plan must 

demonstrate continued attainment of 

the applicable NAAQS for at least 10 

years after the Administrator approves a 

redesignation to attainment. Eight years 

after the redesignation, the State of 

Kentucky must submit a revised 

maintenance plan, which demonstrates 

that attainment will continue to be 

maintained for the 10 years following 

the initial 10-year period. To address 

the possibility of future NAAQS 

violations, the maintenance plan must 

contain such contingency measures, 

with a schedule for implementation as 

EPA deems necessary to assure prompt 

correction of any future 1997 8-hour 

ozone violations. Section 175A of the 

CAA sets forth the requirements for 

maintenance plans for areas seeking 

redesignation from nonattainment to 

attainment. The Calcagni Memorandum 

provides additional guidance on the 

content of a maintenance plan. The 

Calcagni Memorandum explains that an 

ozone maintenance plan should address 

five elements: the attainment emissions 

inventory, maintenance demonstration, 

monitoring, verification of continued 

attainment, and a contingency plan. As 

is discussed more fully below, EPA 

proposes to find that Kentucky’s 

maintenance plan includes all the 

necessary components and is 

approvable as part of the redesignation 

request. 

b. Attainment Emissions Inventory 

In coordination with Ohio and 

Indiana, Kentucky selected 2008 as ‘‘the 

attainment year’’ for the purposes of 

demonstrating maintenance of the 1997 

8-hour ozone NAAQS. The attainment 

inventory identifies the level of 

emissions in the area, which is 

sufficient to attain the 1997 8-hour 

ozone standard. Kentucky began 

development of the attainment 

inventory by first developing a baseline 

emissions inventory for Northern 

Kentucky. The year 2008 was chosen as 

the base year for developing a 

comprehensive ozone precursor 

emissions inventory for which projected 

emissions could be developed for 2011, 

2015, 2018 and 2020. The projected 

inventory estimates emissions forward 

to 2020, which meets the 10-year 

interval required in Section 175A of the 

CAA. Nonroad mobile emissions were 

generated using EPA’s National Mobile 

Inventory Model (NMIM), with the 

following exceptions: recreational 

motorboat populations and spatial 

surrogates were updated; emissions 

estimates were developed for 

commercial marine vessels, aircraft, and 

railroads as these three nonroad 

categories are not included in NMIM. 

On-road mobile source emissions were 

calculated using EPA’s MOBILE6.2 

emission factors model. The 2008 VOC 

and NOX emissions, as well as the 

emissions for other years, for Northern 

Kentucky were developed consistent 

with EPA guidance, and are 

summarized in Tables 3 and 4 in the 

following subsection. 

c. Maintenance Demonstration 

The January 29, 2010, redesignation 

request includes a maintenance plan for 

Northern Kentucky. The maintenance 

plan: 

(i) Shows maintenance of the 1997 8-hour 

ozone standard by providing information to 

support the demonstration that current and 

future emissions of VOC and NOX remain at 

or below attainment year 2008 emissions 

levels. The year 2008 was chosen as the 

attainment year because it is one of the years 

in the most recent three-year period (2007- 

2009) during which the tri-state CincinnatiHamilton Area attained the 1997 8-hour 

ozone standard. A maintenance 

demonstration need not be based on 

modeling. See Wall v. EPA, 265 F.3d 426 (6th 

Cir. 2001), Sierra Club v. EPA, 375 F.3d 537 

(7th Cir. 2004). See also 66 FR 53094, 53099– 

53100 (October 19, 2001), 68 FR 25413, 

25430–25432 (May 12, 2003)). 

(ii) Uses 2008 as the attainment year and 

includes future emission inventory 

projections for 2011, 2015, 2018, and 2020. 

(iii) Identifies an ‘‘out year,’’ at least 10 

years (and beyond) after the time necessary 

for EPA to review and approve the 

redesignation request. Per 40 CFR part 93, 

NOX and VOC MVEBs were established for 

the last year (2020) of the maintenance plan. 

Additionally, Kentucky chose, through 

interagency consultation, to establish MVEBs 

for 2015 for NOX and VOC. See section VII 

below. 

(iv) Provides the following actual and 

projected emissions inventories, in tons per 

day (tpd) for Northern Kentucky. See Tables 

3 and 4. 

TABLE 3—NORTHERN KENTUCKY VOC EMISSIONS

[tpd] 

2008 2011 2015 2018 2020 

Point 

Boone ........................................................................................................................... 2.81 2.90 3.04 3.14 3.20 

Campbell ...................................................................................................................... 0.28 0.29 0.30 0.31 0.31 

Kenton .......................................................................................................................... 1.17 1.23 1.31 1.38 1.42 

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TABLE 3—NORTHERN KENTUCKY VOC EMISSIONS—Continued 

[tpd] 

2008 2011 2015 2018 2020 

Point Total ............................................................................................................. 4.79 4.42 4.65 4.62 4.93 

Area 

Boone ........................................................................................................................... 8.41 8.45 8.50 8.50 8.50 

Campbell ...................................................................................................................... 4.34 4.28 4.20 4.20 4.20 

Kenton .......................................................................................................................... 7.88 7.79 7.66 7.66 7.66 

Area Total ............................................................................................................. 20.63 20.52 20.36 20.36 20.36 

Nonroad 

Boone ........................................................................................................................... 5.07 4.84 4.55 4.44 4.36 

Campbell ...................................................................................................................... 1.51 1.41 1.29 1.25 1.22 

Kenton .......................................................................................................................... 1.95 1.87 1.76 1.74 1.73 

Nonroad Total ....................................................................................................... 8.53 8.12 7.60 7.68 7.31 

Mobile * 

Boone ........................................................................................................................... 4.00 3.63 3.17 3.04 2.96 

Campbell ...................................................................................................................... 2.29 2.04 1.74 1.62 1.55 

Kenton .......................................................................................................................... 3.85 3.39 2.85 2.67 2.56 

Mobile Total .......................................................................................................... 10.14 9.06 8.29 7.69 7.07 

Northern Kentucky Total ................................................................................ 44.09 42.12 40.90 40.35 39.67 

* Calculated using MOBILE6.2. 

TABLE 4—NORTHERN KENTUCKY NOX EMISSIONS

[tons per day] 

2008 2011 2015 2018 2020 

Point 

Boone ........................................................................................................................... 23.27 24.04 25.08 25.91 26.47 

Campbell ...................................................................................................................... 0.02 0.02 0.02 0.03 0.03 

Kenton .......................................................................................................................... 0.04 0.03 0.03 0.03 0.03 

Point Total ............................................................................................................. 23.33 24.09 25.13 25.97 26.53 

Area 

Boone ........................................................................................................................... 5.02 5.02 5.03 5.03 5.03 

Campbell ...................................................................................................................... 1.32 1.31 1.30 1.30 1.30 

Kenton .......................................................................................................................... 4.06 4.04 4.02 4.02 4.02 

Area Total ............................................................................................................. 10.40 10.37 10.35 10.35 10.35 

Nonroad 

Boone ........................................................................................................................... 11.02 10.47 9.77 9.60 9.48 

Campbell ...................................................................................................................... 5.34 5.00 4.57 4.43 4.34 

Kenton .......................................................................................................................... 7.33 6.81 6.15 5.91 5.75 

Nonroad Total ....................................................................................................... 23.69 22.28 20.49 19.94 19.57 

Mobile* 

Boone ........................................................................................................................... 8.53 6.64 4.63 3.90 3.45 

Campbell ...................................................................................................................... 4.88 3.74 2.54 2.09 1.81 

Kenton .......................................................................................................................... 8.37 6.33 4.23 3.47 3.01 

Mobile Total .......................................................................................................... 21.78 16.71 11.40 9.46 8.27 

Northern Kentucky Total ................................................................................ 79.20 73.45 67.37 65.72 54.72 

* Calculated using MOBILE6.2. 

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Kentucky is using emissions 

inventory projections for the years 2011, 

2015, 2018 and 2020 to demonstrate 

maintenance. The Ohio-KentuckyIndiana (OKI) Regional Council of 

Governments calculated onroad 

emissions for 2011, 2015, 2018 and 2020 

using the MOBILE6.2 emissions model 

in addition to using this model to 

calculate the 2008 base year emissions. 

Emissions estimates for the remaining 

source categories were based on future 

year inventories developed by Kentucky 

and the Lake Michigan Air Directors 

Consortium (LADCO). Specifically, for 

Kentucky’s submission, LADCO 

developed the emissions and 

projections for area and nonhighway 

mobile sources. Kentucky used 

information in the National Emissions 

Inventory (NEI) database and 

Kentucky’s Emissions Inventory 

Systems database to determine the point 

source emissions. A comparison was 

made between employment projections 

and earnings projections using the U.S. 

Department of Commerce’s Bureau of 

Economic Analysis data. Kentucky’s 

submission provides detailed 

documentation for how the emissions 

were developed for this submission. 

EPA has reviewed this information and 

has determined that the emissions were 

developed using methodology that is 

consistent with EPA policy and 

guidance. 

Consideration of CAIR for 

Maintenance Demonstration. The 

emission projections show that Ohio, 

Indiana (75 FR 8882–8884), and 

Kentucky do not expect emissions in the 

tri-state Cincinnati-Hamilton Area to 

exceed the level of the 2008 attainment 

year inventory during the maintenance 

period, even without implementation of 

CAIR (see also discussion below). As 

shown in Table 5, VOC and NOX

emissions in the entire tri-state 

Cincinnati-Hamilton Area are projected 

to decrease by 30.41 tpd and 47.00 tpd, 

respectively, between 2008 and 2020. 

To further support the maintenance 

plan demonstrations for the tri-state 

Cincinnati-Hamilton Area, LADCO 

performed a regional modeling analysis 

to address the effect of the recent court 

decision vacating CAIR. This analysis is 

documented in LADCO’s ‘‘Regional Air 

Quality Analyses for Ozone, PM2.5, and 

Regional Haze: Final Technical Support 

Document (Supplement), September 12, 

2008;’’ see the discussion in EPA’s 

proposed approval of the Ohio and 

Indiana maintenance plans for the tristate Cincinnati-Hamilton Area. See 75 

FR 8883–8884. 

LADCO produced a base year 

inventory for 2005 and future year 

inventories for 2009, 2012, and 2018. To 

estimate future electric generating units 

(EGU) NOX emissions without 

implementation of CAIR, LADCO 

projected 2007 EGU NOX emissions for 

all states in the modeling domain based 

on Energy Information Administration 

growth rates by state (North American 

Electric Reliability Corporation region) 

and fuel type for the years 2009, 2012 

and 2018. The assumed 2007–2018 

growth rates were 8.8 percent for 

Illinois, Iowa, Missouri and Wisconsin; 

13.5 percent for Indiana, Kentucky, 

Michigan and Ohio; and 15.1 percent for 

Minnesota. Emissions were adjusted by 

applying legally enforceable controls, 

e.g., consent decree or rule. 

Ozone modeling performed by 

LADCO supports the conclusion that the 

tri-state Cincinnati-Hamilton Area will 

maintain the standard throughout the 

maintenance period. Peak modeled 

ozone levels in the area for 2009, 2012 

and 2018 are 0.082 ppm, 0.081 ppm, 

and 0.078 ppm, respectively. These 

projected ozone levels were modeled 

applying only legally enforceable 

controls; e.g., consent decrees, rules, the 

NOX SIP Call, Federal motor vehicle 

control programs (FMVCP), etc. Because 

these programs will remain in place, 

emission levels, and therefore ozone 

levels, would not be expected to 

increase significantly between 2018 and 

2020. 

EPA has considered the relationship 

of the maintenance plans to the 

reductions required pursuant to CAIR. 

CAIR was remanded to EPA, and the 

process of developing a replacement 

rule is ongoing. However, the remand of 

CAIR does not alter the requirements of 

the NOX SIP Call, and Kentucky has 

demonstrated maintenance without any 

additional CAIR requirements (beyond 

those required by the NOX SIP Call). 

Therefore, EPA believes that Kentucky’s 

demonstration of maintenance under 

sections 175A and 107(d)(3)(E) is valid. 

The NOX SIP Call requires states to 

make significant, specific emissions 

reductions. It also provided a 

mechanism, the NOX Budget Trading 

Program, which states could use to 

achieve those reductions. When EPA 

promulgated CAIR, it discontinued 

(starting in 2009) the NOX Budget 

Trading Program, 40 CFR 51.121(r), but 

created another mechanism, the CAIR 

ozone season trading program, which 

states could use to meet their SIP Call 

obligations, 70 FR 25289–90. EPA notes 

that a number of states, when 

submitting SIP revisions to require 

sources to participate in the CAIR ozone 

season trading program, removed the 

SIP provisions that required sources to 

participate in the NOX Budget Trading 

Program. In addition, because the 

provisions of CAIR, including the ozone 

season NOX trading program, remain in 

place during the remand, EPA is not 

currently administering the NOX Budget 

Trading Program. Nonetheless, all 

states, regardless of the current status of 


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their regulations that previously 

required participation in the NOX

Budget Trading Program, will remain 

subject to all of the requirements in the 

NOX SIP Call even if the existing CAIR 

ozone season trading program is 

withdrawn or altered. In addition, the 

anti-backsliding provisions of 40 CFR 

51.905(f) specifically provide that the 

provisions of the NOX SIP Call, 

including the statewide NOX emission 

budgets, continue to apply after 

revocation of the 1-hour standard. 

All NOX SIP Call states have SIPs that 

currently satisfy their obligations under 

the SIP Call, the SIP Call reduction 

requirements are being met, and EPA 

will continue to enforce the 

requirements of the NOX SIP Call even 

after any response to the CAIR remand. 

For these reasons, EPA believes that 

regardless of the status of the CAIR 

program, the NOX SIP Call requirements 

can be relied upon in demonstrating 

maintenance. Here, Kentucky has 

demonstrated maintenance based in part 

on those requirements. 

d. Monitoring Network 

There are currently eleven monitors 

measuring ozone in the tri-state 

Cincinnati-Hamilton Area (three in 

Northern Kentucky and one in the 

remainder in the Ohio portion of this 

Area). Kentucky has committed, in the 

maintenance plan, to continue operation 

of the three monitors in Northern 

Kentucky in compliance with 40 CFR 

part 58, and has addressed the 

requirement for monitoring. Ohio has 

made a similar commitment in their 

redesignation and maintenance plan 

submission to EPA for this Area. There 

is no monitor in the Indiana portion of 

this Area. 

e. Verification of Continued Attainment 

The Commonwealth of Kentucky has 

the legal authority to enforce and 

implement the requirements of the 

ozone maintenance plan. This includes 

the authority to adopt, implement and 

enforce any subsequent emissions 

control contingency measures 

determined to be necessary to correct 

future ozone attainment problems. 

Kentucky will track the progress of 

the maintenance plan by performing 

future reviews of emissions inventory 

for Northern Kentucky using the latest 

emissions factors, models and 

methodologies. For these periodic 

inventories, Kentucky will review the 

assumptions made for the purpose of 

the maintenance demonstration 

concerning projected growth of activity 

levels. If any of these assumptions 

appear to have changed substantially, 

Kentucky commits to re-project 

emissions. 

f. Contingency Plan 

The contingency plan provisions are 

designed to promptly correct a violation 

of the NAAQS that occurs after 

redesignation. Section 175A of the CAA 

requires that a maintenance plan 

include such contingency measures as 

EPA deems necessary to assure that the 

state will promptly correct a violation of 

the NAAQS that occurs after 

redesignation. The maintenance plan 

should identify the contingency 

measures to be adopted, a schedule and 

procedure for adoption and 

implementation, and a time limit for 

action by the state. A state should also 

identify specific indicators to be used to 

determine when the contingency 

measures need to be implemented. The 

maintenance plan must include a 

requirement that a state will implement 

all measures with respect to control of 

the pollutant that were contained in the 

SIP before redesignation of the area to 

attainment in accordance with section 

175A(d). 

In the January 29, 2010, submittal, 

Kentucky affirms that all programs 

instituted by the Commonwealth and 

EPA will remain enforceable, and that 

sources are prohibited from reducing 

emissions controls following the 

redesignation of the area. Kentucky 

commits in their submission to provide 

an update for the maintenance plan 8 

years after formal redesignation in 

accordance with section 175A(b) of the 

CAA should this requirement remain 

applicable for this Area. 

As required by section 175A of the 

CAA, Kentucky has adopted a 

contingency plan to address possible 

future 8-hour ozone air quality 

problems. In the event that a measured 

value of the fourth highest maximum is 

0.085 ppm or greater in any portion of 

the maintenance area in a single ozone 

season, or if periodic emissions 

inventory updates reveal excessive or 

unanticipated growth greater than ten 

percent in ozone precursor emissions, 

the Commonwealth will evaluate 

existing control measures to see if any 

further emission reductions should be 

implemented at that time. 

In the event of a monitored violation 

of the 1997 8-hour ozone NAAQS in the 

tri-state Cincinnati-Hamilton Area, 

Kentucky commits to adopt, within nine 

months, one or more of the following 

contingency measures to re-attain the 

standard. A violation of the standard 

occurs when the 3-year average of the 

annual fourth-highest daily maximum 8- 

hour average ozone concentration is 

equal to or greater than 0.085 ppm. All 

regulatory programs will be adopted and 

implemented within 18 months after the 

triggering monitored violation. 

• Implementation of a program to 

require additional emissions reductions 

on stationary sources; 

• Implementation of fuel programs, 

including incentives for alternative 

fuels; Restriction of certain roads or 

lanes to, or construction of such roads 

or lands for use by passenger buses or 

high-occupancy vehicles; 

• Trip-reduction ordinances; 

• Employer-based transportation 

management plans, including 

incentives; 

• Programs to limit or restrict vehicle 

us in downtown areas, or other areas of 

emissions concentration, particularly 

during periods of peak use; 

• Programs for new construction and 

major reconstructions of paths or tracks 

for use by pedestrians or by nonmotorized vehicles when economically 

feasible and in the public interest. 

Kentucky also reserves the right in its 

submission to implement other 

contingency measures if new control 

programs should be developed and 

advantageous for the Area. 

EPA believes that that the 

maintenance plan adequately addresses 

the five basic components of a 

maintenance plan: attainment 

inventory, maintenance demonstration, 

monitoring network, verification of 

continued attainment, and a 

contingency plan. Thus EPA proposes to 

find that the maintenance plan SIP 

revision submitted by the 

Commonwealth of Kentucky for 

Northern Kentucky meets the 

requirements of section 175A of the 

CAA and is approvable. 

VII. What is EPA’s analysis of 

Kentucky’s proposed state NOX and 

VOC MVEBs for Northern Kentucky? 

Under the CAA, states are required to 

submit, at various times, control strategy 

SIPs and maintenance plans in ozone 

areas. These control strategy SIPs (RFP 

and attainment demonstration) and 

maintenance plans establish MVEBs for 

criteria pollutants and/or their 

precursors to address pollution from 

cars and trucks. Per 40 CFR part 93, an 

MVEB is established for the last year of 

the maintenance plan. A state may 

adopt MVEBs for other years as well. 

The MVEB is the portion of the total 

allowable emissions in the maintenance 

demonstration that is allocated to 

highway and transit vehicle use and 

emissions. See 40 CFR 93.101. The 

MVEB serves as a ceiling on emissions 

from an area’s planned transportation 

system. The MVEB concept is further 

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26698 Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 

explained in the preamble to the 

November 24, 1993, transportation 

conformity rule (58 FR 62188). The 

preamble also describes how to 

establish the MVEB in the SIP and how 

to revise the MVEB. 

After interagency consultation with 

the transportation partners for the tristate Cincinnati-Hamilton Area, 

Kentucky has elected to develop MVEBs 

for VOC and NOX for Northern 

Kentucky separate from the remainder 

of the tri-state Cincinnati-Hamilton 

Area. MVEBs for the remainder of the 

tri-state Cincinnati-Hamilton Area is 

addressed in the Ohio and Indiana 

submittals. Kentucky is developing 

these MVEBs for Northern Kentucky, as 

required, for the last year of its 

maintenance plan, 2020, an interim 

year, 2015. The MVEBs for 2015 and 

2020 reflect the total on-road emissions 

for those individual years, plus an 

allocation from the available NOX and 

VOC safety margin for each year. Under 

40 CFR 93.101, the term safety margin 

is the difference between the attainment 

level (from all sources) and the 

projected level of emissions (from all 

sources) in the maintenance plan. The 

safety margin can be allocated to the 

transportation sector; however, the total 

emissions must remain below the 

attainment level. These MVEBs and 

allocation from the safety margin were 

developed in consultation with the 

transportation partners and were added 

to account for uncertainties in 

population growth, changes in model 

VMT and new emission factor models. 

For 2015, the safety margin added to the 

mobile VOC emissions 2 tpd, and the 

safety margin added to the mobile NOX

emissions is 3 tpd. For 2020, the safety 

margin added to the mobile VOC 

emissions is 3 tpd, and the safety 

margin added to the mobile NOX

emissions is 5 tpd. The resulting NOX

and VOC MVEBs for Northern Kentucky 

are defined in Table 6 below. 

TABLE 6—NORTHERN KENTUCKY 1997 8-HOUR OZONE NOX AND VOC MVEBS

[Summer season tons per day] 

2015 2020 

NOX .................................................................................................................................................................. 14.40 13.27 

VOC ................................................................................................................................................................. 9.76 10.07 

As mentioned above, Kentucky has 

chosen to allocate a portion of the 

available safety margin to the 2015 and 

2020 NOX and VOC MVEBs. The 

following tables identify the original 

NOX and VOC safety margins that were 

available in the tri-state Cincinnati Area 

for the applicable years. It should be 

noted that the safety margin allocation 

from above is not reflected in the 

following table so any further allocation 

of the available safety margin in the 

Kentucky portion of this area will be 

quantified at the time of the allocation 

should the Commonwealth elect to 

allocate additional safety margin to the 

MVEBs in the Northern Kentucky Area. 

Table 7 and Table 8 below detail the 

available safety margin for the tri-state 

Cincinnati-Hamilton Area prior to 

allocations provided for MVEBs for 

Northern Kentucky and the remainder 

of the tri-state Area. Kentucky’s has 

remaining safety margin to allocate. 

Should Kentucky decide to allocate 

further safety margin to the MVEB, the 

Commonwealth will do so through a 

subsequent SIP revision which will 

identify the available safety margin for 

allocation and any additional allocation. 

TABLE 7—SAFETY MARGIN FOR VOC FOR TRI-STATE CINCINNATI-HAMILTON AREA

[tons per day] 

VOC 2008 2015 2020 

Safety 

margin 

Safety 

margin 

2015 2020 

Butler, OH .................................................................................................................... 26.66 23.85 23.64 2.80 3.01 

Clermont, OH ............................................................................................................... 15.51 12.94 12.54 2.39 2.77 

Clinton, OH .................................................................................................................. 6.83 5.45 5.02 1.38 1.81 

Hamilton, OH ............................................................................................................... 69.25 56.80 55.00 12.41 14.21 

Warren, OH .................................................................................................................. 18.48 14.92 14.54 3.56 3.94 

Dearborn, IN ................................................................................................................ 7.49 6.86 6.96 12.18 12.08 

Boone, KY .................................................................................................................... 20.29 19.26 19.02 1.03 1.27 

Campbell, KY ............................................................................................................... 8.42 7.53 7.28 0.89 1.14 

Kenton, KY ................................................................................................................... 14.85 13.58 13.37 1.27 1.48 

Combined Total .................................................................................................... 187.78 161.19 157.37 37.91 41.71 

TABLE 8—SAFETY MARGIN FOR VOC FOR TRI-STATE CINCINNATI-HAMILTON AREA

[tons per day] 

NOX 2008 2015 2020 

Safety 

margin 

Safety 

margin 

2015 2020 

Butler, OH .................................................................................................................... 40.52 30.49 27.06 8.50 11.93 

Clermont, OH ............................................................................................................... 39.73 59.76 59.12 ¥31.80 ¥32.13 

Clinton, OH .................................................................................................................. 6.31 3.84 2.97 2.47 3.34 

Hamilton, OH ............................................................................................................... 88.37 73.30 65.16 29.41 37.55 

Warren, OH .................................................................................................................. 22.26 13.32 10.88 8.94 11.38 

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Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 26699 

TABLE 8—SAFETY MARGIN FOR VOC FOR TRI-STATE CINCINNATI-HAMILTON AREA—Continued 

[tons per day] 

NOX 2008 2015 2020 

Safety 

margin 

Safety 

margin 

2015 2020 

Dearborn, IN ................................................................................................................ 33.09 32.07 32.56 0.90 0.41 

Boone, KY .................................................................................................................... 47.84 44.51 44.43 3.33 3.41 

Campbell, KY ............................................................................................................... 11.56 8.43 7.48 3.13 4.08 

Kenton, KY ................................................................................................................... 19.79 14.43 12.81 5.36 6.98 

Combined Total .................................................................................................... 309.47 280.15 262.47 30.24 46.95 

Through this rulemaking, EPA is 

proposing to approve the 2015 and 2020 

MVEBs for VOC and NOX for Northern 

Kentucky because EPA has determined 

that the Area maintains the 1997 8-hour 

ozone NAAQS with the emissions at the 

levels of the budgets. Once the MVEBs 

for Northern Kentucky (the subject of 

this rulemaking) are approved or found 

adequate (whichever is done first), they 

must be used for future conformity 

determinations. See section VIII for 

more information on the status of EPA’s 

adequacy determination for the 

proposed NOX and VOC MVEBs for the 

years 2015 and 2020 for Northern 

Kentucky. 

VIII. What is the status of EPA’s 

adequacy determination for the 

proposed NOX and VOC MVEBs for the 

years 2015 and 2020 for Northern 

Kentucky? 

Under section 176(c) of the CAA, new 

transportation projects, such as the 

construction of new highways, must 

‘‘conform’’ to (i.e., be consistent with) 

the part of the state’s air quality plan 

that addresses pollution from cars and 

trucks. ‘‘Conformity’’ to the SIP means 

that transportation activities will not 

cause new air quality violations, worsen 

existing violations, or delay timely 

attainment of the NAAQS. If a 

transportation plan does not ‘‘conform,’’ 

most new projects that would expand 

the capacity of roadways cannot go 

forward. Regulations at 40 CFR part 93 

set forth EPA policy, criteria, and 

procedures for demonstrating and 

assuring conformity of such 

transportation activities to a SIP. The 

regional emissions analysis is one, but 

not the only, requirement for 

implementing transportation 

conformity. Transportation conformity 

is a requirement for nonattainment and 

maintenance areas. Maintenance areas 

are areas that were previously 

nonattainment for a particular NAAQS 

but have since been redesignated to 

attainment with a maintenance plan for 

that NAAQS. 

When reviewing submitted ‘‘control 

strategy’’ SIPs or maintenance plans 

containing MVEBs, EPA may 

affirmatively find the MVEB contained 

therein ‘‘adequate’’ for use in 

determining transportation conformity. 

Once EPA affirmatively finds the 

submitted MVEB is adequate for 

transportation conformity purposes, that 

MVEB must be used by state and 

Federal agencies in determining 

whether proposed transportation 

projects ‘‘conform’’ to the SIP as required 

by section 176(c) of the CAA. 

EPA’s substantive criteria for 

determining ‘‘adequacy’’ of an MVEB are 

set out in 40 CFR 93.118(e)(4). The 

process for determining ‘‘adequacy’’ 

consists of three basic steps: Public 

notification of a SIP submission, a 

public comment period, and EPA’s 

adequacy finding. This process for 

determining the adequacy of submitted 

SIP MVEBs was initially outlined in 

EPA’s May 14, 1999, guidance, 

‘‘Conformity Guidance on 

Implementation of March 2, 1999, 

Conformity Court Decision.’’ This 

guidance was finalized in the 

Transportation Conformity Rule 

Amendments for the ‘‘New 8-Hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards and Miscellaneous 

Revisions for Existing Areas; 

transportation conformity rule 

amendments—Response to Court 

Decision and Additional Rule Change,’’ 

on July 1, 2004 (69 FR 40004). 

Additional information on the adequacy 

process for MVEBs is available in the 

proposed rule entitled, ‘‘Transportation 

Conformity Rule Amendments: 

Response to Court Decision and 

Additional Rule Changes,’’ 68 FR 38974, 

38984 (June 30, 2003). 

As discussed earlier, Kentucky’s 

maintenance plan submission includes 

VOC and NOX state MVEBs for Northern 

Kentucky for the years 2015 and 2020. 

EPA reviewed both the VOCs and NOX

state MVEBs through the adequacy 

process. The Kentucky SIP submission, 

including the Northern Kentucky VOC 

and NOX MVEBs was open for public 

comment on EPA’s adequacy website on 

February 3, 2010, found at: http:// 

www.epa.gov/otaq/stateresources/ 

transconf/currsips.htm. The EPA public 

comment period on adequacy of the 

2015 and 2020 VOC and NOX state 

MVEBs for Northern Kentucky closed 

on March 5, 2010. EPA did not receive 

any comments on the adequacy of the 

MVEBs, nor did EPA receive any 

requests for the SIP submittal. EPA 

provided a separate adequacy posting 

for the MVEBs in association with the 

Ohio and Indiana portions of this Area. 

The status of the adequacy process for 

the Ohio and Indiana MVEBs is 

discussed in EPA’s separate action 

related to those areas (see 75 FR 8871, 

8886; February 26, 2010). 

EPA intends to make its 

determination on the adequacy of the 

2015 and 2020 MVEBs for Northern 

Kentucky for transportation conformity 

purposes by completing the adequacy 

process that was started on February 3, 

2010, in coordination with the final rule 

for this redesignation request and 

maintenance plan. After EPA finds the 

2015 and 2020 MVEBs, adequate or 

approves them, the new MVEBs for VOC 

and NOX must be used, for future 

transportation conformity 

determinations. For required regional 

emissions analysis years that involve 

the years 2015 through 2019, the 

applicable budgets for the purposes of 

conducting transportation conformity 

will be the new 2015 MVEBs. For 

required regional emissions analysis 

years that involve 2020 or beyond, the 

applicable budgets will be the new 2020 

MVEBs for Northern Kentucky. The 

2015 and 2020 MVEBs are defined in 

section VII of this proposed rulemaking. 

IX. What is EPA’s analysis of the 

proposed 2008 base year emissions 

inventory for Northern Kentucky? 

As discussed above, section 172(c)(3) 

of the CAA requires areas to submit a 

base year emissions inventory. As part 

of Kentucky’s request to redesignate the 

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26700 Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 

Kentucky portion of the tri-state 

Cincinnati-Hamilton Area, the 

Commonwealth submitted 2008 base 

year emissions inventory to meet this 

requirement. Emissions contained in the 

submittal cover the general source 

categories of point sources, area sources, 

on-road mobile sources, and non-road 

mobile sources. All emission summaries 

were accompanied by source-specific 

descriptions of emission calculation 

procedures and sources of input data. 

On-road mobile emissions were 

prepared by the OKI using the 

MOBILE6.2 emissions model. 

Kentucky’s submittal documents 2008 

emissions in the Kentucky portion of 

the tri-state Cincinnati-Hamilton Area in 

units of tons per summer day. Table 9 

below provides a summary of the 2008 

summer day emissions of VOC and NOX

for Northern Kentucky. 

NORTHERN KENTUCKY 2008 SUMMER DAY EMISSIONS FOR VOC AND NOX

[Tons per day] 

NOX VOC 

Boone ............................................................................................................................................................... 23.27 2.81 

Campbell .......................................................................................................................................................... 0.02 0.28 

Kenton .............................................................................................................................................................. 0.04 1.17 

Point Total ................................................................................................................................................ 23.33 4.79 

Boone ............................................................................................................................................................... 5.02 8.41 

Campbell .......................................................................................................................................................... 1.32 4.34 

Kenton .............................................................................................................................................................. 4.06 7.88 

Area Total ................................................................................................................................................. 10.40 20.63 

Boone ............................................................................................................................................................... 11.02 5.07 

Campbell .......................................................................................................................................................... 5.34 1.51 

Kenton .............................................................................................................................................................. 7.33 1.95 

Nonroad Total ........................................................................................................................................... 23.69 8.53 

Boone ............................................................................................................................................................... 8.53 4.00 

Campbell .......................................................................................................................................................... 4.88 2.29 

Kenton .............................................................................................................................................................. 8.37 3.85 

Mobile Total .............................................................................................................................................. 21.78 10.14 

Northern Kentucky Total ................................................................................................................... 79.20 44.09 

EPA is proposing to approve this 2008 

base year inventory as meeting the 

section 172(c)(3) emissions inventory 

requirement. 

X. What are EPA’s proposed actions? 

EPA is proposing to: (1) To determine 

that the tri-state Cincinnati-Hamilton 

Area has attained the 1997 8-hour ozone 

NAAQS based on quality assured 

monitoring data from 2007–2009; (2) 

approve Kentucky’s redesignation 

request for Boone, Campbell and Kenton 

Counties in Kentucky as part of the tristate Cincinnati Area; (3) approve 

Kentucky’s January 29, 2010 SIP 

revision providing the 1997 8-hour 

ozone maintenance plan for Northern 

Kentucky, including the MVEBs for 

NOX and VOC for the years 2015 and 

2020; and (4) approve the 2008 

emissions inventory for Northern 

Kentucky as meeting the requirements 

of the CAA. 

EPA’s proposed approval is based on 

the Commonwealth’s demonstration 

that the plan meets the requirements of 

section 175A of the CAA. After 

evaluating the Commonwealth’s 

redesignation request, EPA believes 

that, upon final approval of the 

emissions inventory that was also 

submitted, the request meets the 

redesignation criteria set forth in CAA 

sections 107(d)(3)(E) and 175A. 

Therefore, EPA is proposing to approve 

the redesignation of the Kentucky 

portion of the tri-state CincinnatiHamilton Area from nonattainment to 

attainment for the 1997 8-hour ozone 

NAAQS. The final approval of this 

redesignation request would change the 

official designation for the Kentucky 

portion of the tri-state CincinnatiHamilton Area from nonattainment to 

attainment for the 1997 8-hour ozone 

NAAQS. Final approval would also 

establish 2015 and 2020 NOX and VOC 

MVEBs for Northern Kentucky to use for 

the purposed of implementing 

transportation conformity. EPA is 

proposing to approve Kentucky’s 2008 

base year emissions inventory for the 

Kentucky portion of the tri-state 

Cincinnati-Hamilton Area as meeting 

the requirements of section 172(c)(3) 

EPA is taking action on the 

redesignation requests, emission 

inventories and maintenance plans for 

the Ohio and Indiana portions (as a part 

of the tri-state Cincinnati-Hamilton 

Area) in a separate but coordinated 

action. 

In this action, EPA is also describing 

the status of EPA’s adequacy 

determination for the new 2015 and 

2020 MVEBs that are contained in the 

1997 8-hour ozone maintenance plan for 

Northern Kentucky in accordance with 

40 CFR 93.118(f)(1). Within 24 months 

from the effective date of EPA’s 

adequacy finding for the MVEBs, or the 

effective date for the final rule for this 

action, whichever is earlier, the 

transportation partners will need to 

demonstrate conformity to the new NOX

and VOC MVEBs pursuant to 40 CFR 

93.104(e). EPA intents to conclude it 

adequacy process for the Northern 

Kentucky MVEBs with its final 

rulemaking for this proposed action. 

MVEBs for the Ohio and Indiana 

portions of this Area are included in the 

Ohio and Indiana submittals, and are 

being addressed through EPA’s separate 

action for those submissions. 

XI. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under 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 

imposed by state law. A redesignation to 

attainment does not in and of itself 

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Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Proposed Rules 26701 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, 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, 

these proposed actions merely approve 

state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For these reasons, 

these proposed 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 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. 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Incorporation by reference, 

Nitrogen oxides, Ozone, Reporting and 

recordkeeping requirements, and 

Volatile organic compounds. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

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

Dated: May 3, 2010. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2010–11145 Filed 5–11–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[CG Docket No. 03–123; DA 10–761] 

Telecommunications Relay Services 

and Speech-to-Speech Services for 

Individuals With Hearing and Speech 

Disabilities 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission, via the Consumer and 

Governmental Affairs Bureau (Bureau), 

seeks comment on the annual payment 

formulas and funding requirement 

estimates for the Interstate 

Telecommunications Relay Services 

(TRS) Fund (Fund) for the period of July 

1, 2010, through June 30, 2011 (2010– 

2011 Fund year), as proposed by the 

National Exchange Carrier Association 

(NECA), the Fund Administrator. The 

Bureau seeks comment on NECA’s 

proposed compensation rates for 

Interstate TRS, Speech-to-Speech 

Services (STS), Captioned Telephone 

Services (CTS), Internet Protocol (IP) 

CTS, IP Relay, and Video Relay Services 

(VRS), for the 2010–2011 Fund year, as 

well as on NECA’s proposals for the 

carrier contribution factor and funding 

requirement. 

DATES: Comments are due on or before 

May 14, 2010; reply comments are due 

on or before May 21, 2010. 

ADDRESSES: You may submit comments, 

identified by CG Docket No. 03–123, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

fjallfoss.fcc.gov/ecfs2/. Follow the 

instructions for submitting comments. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Diane Mason, Consumer and 

Governmental Affairs Bureau, Disability 

Rights Office, at (202) 418–7126 (voice), 

(202) 418–7828 (TTY), or e-mail at 

Diane.Mason@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s document 

DA 10–761, adopted and released on 

April 30, 2010. The complete text of DA 

10–761, NECA’s submission and any 

subsequently filed documents in this 

matter will be available during regular 

business hours at the FCC Reference 

Center, Portals II, 445 12th Street, SW., 

Room CY–A257, Washington, DC 20554, 

(202) 418–0270. Document DA 10–761, 

NECA’s submission and any 

subsequently filed documents in this 

matter may also be purchased from the 

Commission’s duplicating contractor at 

its Web site, http://www.bcpiweb.com, 

or call 1–800–378–3160. A copy of the 

submission may also be found by 

searching on ECFS (insert CG Docket 

No. 03–123 into the Proceeding block). 

Pursuant to 47 CFR 1.415 and 1.419, 

interested parties may file comments on 

this document. All filings must 

reference CG Docket No. 03–123. 

Comments may be filed using: (1) The 

Commission’s Electronic Comment 

Filing System (ECFS), (2) the Federal 

Government’s eRulemaking Portal, or (3) 

by filing paper copies. Comments may 

be filed electronically using the Internet 

by accessing the ECFS: http:// 

fjallfoss.fcc.gov/ecfs or the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Filers should 

follow the instructions provided on the 

Web site for submitting comments. In 

completing the transmittal screen, 

commenters should include their full 

name, U.S. Postal Service mailing 

address, and CG Docket No. 03–123. 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS