Approval and Promulgation of Air Quality Implementation Plans; The Commonwealth of KentuckyDisapproval of the Request to Redesignate the Kentucky Portion of the Cincinnati-Northern Kentucky Moderate Ozone Nonattainment Area to Attainment and the Associated Maintenance Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY81-1-9638; FRL-5607-3]

Approval and Promulgation of Air Quality Implementation Plans;

The Commonwealth of Kentucky--Disapproval of the Request to Redesignate

the Kentucky Portion of the Cincinnati-Northern Kentucky Moderate Ozone

Nonattainment Area to Attainment and the Associated Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving the Commonwealth of Kentucky Natural

Resources and Environmental Protection Cabinet's (Cabinet) request to

redesignate the Kentucky portion of the Cincinnati-Northern Kentucky

moderate ozone nonattainment area to attainment and the associated

maintenance plan as a revision to the state implementation plan (SIP).

The EPA determined that the area registered a violation of the ozone

national ambient air quality standard (NAAQS). As a result, the

Cincinnati-Northern Kentucky area no longer meets the statutory

criteria for redesignation to attainment of the ozone NAAQS.

EFFECTIVE DATE: September 27, 1996.

ADDRESSES: Copies of the documents relative to this action are

available for public inspection during normal business hours at the

following locations. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102),

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 4 Air Planning Branch, 100

Alabama Street, SW, Atlanta, Georgia 30303-3104.

Division of Air Quality, Department for Environmental Protection,

Natural Resources and Environmental Protection Cabinet, 803 Schenkel

Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Joey LeVasseur, Regulatory Planning

and Development Section, Air Programs Branch, Air, Pesticides & Toxics

Management Division, Region 4 Environmental Protection Agency, 345

Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is

404/562-9035. Reference file KY-081-1-9638.

SUPPLEMENTARY INFORMATION: On November 11, 1994, the Cabinet submitted

a request to EPA to redesignate the Kentucky portion of the Cincinnati-

Northern Kentucky moderate interstate ozone nonattainment area from

nonattainment to attainment. On that date, the Cabinet also submitted a

maintenance plan for the area as a revision to the Kentucky SIP.

According to section 107(d)(3)(E) of the Clean Air Act (CAA), 42

U.S.C. 7407(d)(3)(E), redesignation requests must meet five specific

criteria in order for EPA to redesignate an area from nonattainment to

attainment:

1. The Administrator determines that the area has attained the

ozone 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 implementation plan and

applicable Federal air pollution 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 under section 110 and part D.

All five criteria must be satisfied in order for EPA to redesignate

an area from nonattainment to attainment. Under the first criteria, the

Administrator of EPA is prohibited from redesignating an area to

attainment when that area has not attained the NAAQS. The CAA requires

the area to be in attainment at the time of the final action on the

redesignation. If a violation occurs prior to EPA's final action, the

area is no longer in attainment and EPA cannot redesignate the area to

attainment status.

At the time of the Commonwealth's redesignation submittal in 1994,

the Cincinnati-Northern Kentucky area appeared to have attained the

NAAQS, based on air quality data monitored from 1992 through 1994.

However, during EPA's review of the redesignation request, ambient air

quality data indicated that the area had registered a violation of the

ozone NAAQS in 1995. This ambient data has been quality assured

according to established procedures for validating such monitoring

data. The Cabinet does not contest that the area violated the NAAQS for

ozone during the 1995 ozone season. As a result, the Cincinnati-

Northern Kentucky area does not meet the statutory criteria for

redesignation to attainment of the ozone NAAQS found in section

107(d)(3)(E)(i) of the CAA.

The maintenance plan SIP revision is not approvable because its

demonstration is based on a level of ozone precursor emissions in the

ambient air thought to represent an inventory of emissions that would

provide for attainment and maintenance. That underlying basis of the

maintenance plan's demonstration is no longer valid due to the

violation of the NAAQS that occurred during the 1995 ozone season.

Request for Comments

EPA published a document on April 17, 1996, (61 FR 16738) proposing

disapproval of the maintenance plan and redesignation request and

soliciting comment on the disapproval and relevant issues. EPA received

a number of comments on the proposal. Those comments and the response

thereto are summarized below.

Comment #1--The violation of the ozone standard which occurred

subsequent to the submission of the request cannot be considered

evidence that the area did not achieve the ozone standard, by the very

definition of the standard as set forth in the Act and the regulations.

The continued designation of the area as nonattainment not only fails

to serve a useful purpose, but actually inhibits the broader view of

urban ozone pollution that will be necessary to improve air quality.

Public acceptance of control implementation may be enhanced under an

attainment area contingency plan strategy. This is an additional factor

which should not be overlooked as EPA and the states struggle to gain

public acceptance of new air quality improvement plans.

Response--The CAA authorizes EPA up to 18 months from submittal to

act on a state's request to redesignate. If a violation occurs during

the pendency of EPA's review, EPA cannot approve the request since the

area would not have remained in attainment. Since only a

[[Page 50719]]

final rulemaking can change an area's designation, the area must

continue to meet attainment criteria until the final rulemaking is

published. In addition, EPA is obligated to consider all relevant data

available to it at the time of its decision-making. This means that if

EPA has valid data indicating a violation of the ozone standard for the

Cincinnati-Northern Kentucky area prior to final rulemaking, it must

consider that data in determining whether the area is in attainment.

The CAA prohibits a redesignation to attainment if the area is not, in

fact, attaining the NAAQS at the time of final rulemaking.

The violation of the ozone standard which occurred after submittal

of the Kentucky redesignation request for the Cincinnati-Northern

Kentucky area is properly considered data on attainment status.

Therefore, EPA is disapproving the redesignation request.

Comment #2--A redesignation to attainment should not be

interpreted to mean more than the satisfaction of those provisions

mandated in the CAA for the request to be granted.

Response--EPA is not requiring more for a redesignation to

attainment than that required by the CAA. Section 107(d)(3)(E)(i) of

the CAA states, ``The Administrator may not promulgate a redesignation

of a nonattainment area (or portion thereof) to attainment unless the

Administrator determines that the area has attained the national

ambient air quality standard.'' Once the violation occurred, the

Cincinnati-Northern Kentucky area no longer met the statutory criteria

for redesignation to attainment of the ozone NAAQS. Therefore, EPA is

disapproving the redesignation request.

Comment #3--The approval of the requests will do nothing to

inhibit the immediate implementation of emission control programs

within the nonattainment area.

Response--Approving the request to redesignate the area to

attainment would not guarantee that the area would achieve the NAAQS.

Conversely, disapproving the redesignation request in no way prohibits

the implementation of emission control programs within the

nonattainment area. In fact, disapproval would require the area to meet

all the CAA measures for moderate ozone nonattainment areas.

Comment #4--The violation was due to a single exceedance that

occurred at a monitoring site in Ohio and should not affect the

redesignation of the Kentucky portion of the nonattainment area.

Response--Ozone is a pollutant that is not directly emitted, but is

formed from a photochemical reaction between volatile organic compounds

(VOCs) and oxides of nitrogen (NOX) in the presence of sunlight.

Ozone may be formed as much as 20 miles from where the VOCs and

NOX are emitted and transported even farther. This makes ozone an

area-wide problem. The ozone NAAQS is 0.12 parts per million as stated

in 40 CFR 50.9. To be considered a violation, a single monitor must

exceed this value four times in a three year period. The NAAQS was

exceeded for the fourth time in two years at the Lebanon, Ohio site in

Warren County Ohio. The fourth exceedance caused the violation,

however, two sites in Northern Kentucky also exceeded the standard in

this time period. In addition, as indicated above, the CAA states that

EPA ``may not promulgate a redesignation of a nonattainment area (or

portion thereof) to attainment unless * * * the area has'' attained the

standard. Although a violation did not occur in the Kentucky portion of

the nonattainment area, a request to redesignate a portion of an area

to attainment may not be approved if the entire area does not meet the

redesignation requirements.

Comment #5--Before the CAA Amendments of 1990, the U.S. EPA could

redesignate an area only after a request by the governor of the state

in which it was located. The 1990 amendments provided EPA with the

authority to act unilaterally to propose redesignation. This authority

will allow the federal agency to respond much more quickly if a state

is recalcitrant in implementing or enforcing contingency measures.

Response--The revised CAA does allow EPA to act more quickly to

redesignate to nonattainment, however, the Cincinnati-Northern Kentucky

area no longer meets the statutory criteria for redesignation to

attainment of the ozone NAAQS. The Agency cannot redesignate an area

that violates the standard prior to final action on a redesignation

request. Therefore, EPA is disapproving the redesignation request.

Final Action

EPA disapproves the Commonwealth's November 11, 1994 redesignation

request and maintenance plan SIP revision. The agency has reviewed this

request for revision of the Federally-approved SIP for conformance with

the provisions of the CAA. The Agency has determined that this action

does not conform with the statute as amended and should be disapproved.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any state implementation plan. Each request for revision to the state

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

EPA's denial of the State's redesignation request under section

107(d)(3)(E) does not affect any existing requirements applicable to

small entities nor does it impose new requirements. The area retains

its current designation status and will continue to be subject to the

same statutory requirements. To the extent that the area must adopt

regulations, based on its nonattainment status, EPA will review the

effect of those actions on small entities at the time the state submits

those regulations. Therefore, I certify that denial of the

redesignation request will not affect a substantial number of small

entities.

Unfunded Mandates

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the

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program provided for under Section 110 of the CAA. These rules may bind

State, local and tribal governments to perform certain actions and also

require the private sector to perform certain duties. EPA has examined

whether the rules being disapproved by this action would impose any new

requirements. Since such sources are already subject to these

regulations under State law, no new requirements are imposed by this

disapproval. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action,

and therefore there will be no significant impact on a substantial

number of small entities.

Under 5 U.S.C. 801(a)(1)(A) of the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA submitted a report containing

this rule and other required information to the U.S. Senate, the U.S.

House of Representatives and the Comptroller General of the General

Accounting Office prior to publication of the rule in today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by September 27, 1996. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Air pollution control, Hydrocarbons, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: August 15, 1996.

R. F. McGhee,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

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

Authority: 42.U.S.C. 7401-7671q.

Subpart S--Kentucky

2. Section 52.930 is amended by adding paragraph (c) to read as

follows:

Sec. 52.930 Control strategy: Ozone.

* * * * *

(c) The redesignation request submitted by the Commonwealth of

Kentucky, on November 11, 1994, for the Kentucky portion of the

Cincinnati-Northern Kentucky moderate interstate ozone nonattainment

area from nonattainment to attainment was disapproved on September 27,

1996.

[FR Doc. 96-24858 Filed 9-26-96; 8:45 am]

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