81 FR 72755 - Air Plan Approval; KY; RACM Determination for the KY Portion of the Louisville Area 1997 Annual PM2.5
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 204 (October 21, 2016)
Federal Register Volume 81, Issue 204 (October 21, 2016)
| Page Range | 72755-72757 | |
| FR Document | 2016-25433 |
[Federal Register Volume 81, Number 204 (Friday, October 21, 2016)] [Proposed Rules] [Pages 72755-72757] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-25433] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0526; FRL-9954-34-Region 4] Air Plan Approval; KY; RACM Determination for the KY Portion of the Louisville Area 1997 Annual PM2.5 AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality (KDAQ) on August 9, 2016, that addresses reasonably available control measures (RACM) for the Kentucky portion of the Louisville, KY-IN, nonattainment area for the 1997 Annual fine particulate matter (PM2.5 ) National Ambient Air Quality Standards (NAAQS) (hereinafter referred to as the ``bi-state Louisville Area'' or ``Area''). DATES: Comments must be received on or before November 21, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04- OAR-2016-0526 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Sanchez can be reached by telephone at (404) 562-9644 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. Background In 1997, EPA promulgated the first air quality standards for PM2.5 . EPA promulgated an annual standard at a level of 15 micrograms per cubic meter ([mu]g/m\3\) (based on a 3-year average of annual mean PM2.5 concentrations) and a 24-hour standard of 65 [mu]g/m\3\ (based on a 3-year average of the 98th percentile of 24- hour concentrations). See 62 FR 38652 (July 18, 1997). On January 5, 2005 (70 FR 944), and supplemented on April 14, 2005 (70 FR 19844), EPA designated the bi-state Louisville Area as nonattainment for the 1997 Annual PM2.5 NAAQS. In that [[Page 72756]] action, EPA defined the bi-state Louisville Area to include Bullitt and Jefferson Counties in Kentucky as well as Clark and Floyd Counties and a portion of Jefferson County (Madison Township) in Indiana. Designation of an area as nonattainment for PM2.5 starts the process for a state to develop and submit to EPA a SIP revision under title I, part D of the Clean Air Act (CAA or Act). This SIP revision must include, among other elements, a demonstration of how the NAAQS will be attained in the nonattainment area as expeditiously as practicable, but no later than the attainment date required by the CAA. Originally, EPA designated all 1997 PM2.5 NAAQS areas under title I, part D, subpart 1 (hereinafter ``Subpart 1''). Subpart 1, comprised of CAA sections 171-179B, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Section 172(c) contains the general SIP requirements for these areas, including RACM requirements under section 172(c)(1). On April 25, 2007 (72 FR 20586), EPA promulgated a rule, codified at 40 CFR part 51, subpart Z, to implement the 1997 PM2.5 NAAQS under Subpart 1 (hereinafter referred to as the ``1997 PM2.5 Implementation Rule'').\1\ On December 3, 2008, Kentucky submitted an attainment demonstration SIP revision for the Area that addressed RACM and certain other section 172(c) elements including a reasonable further progress (RFP) plan, base-year and attainment-year emissions inventories, and contingency measures for the Area. This SIP revision included a section 172(c)(1) RACM determination that there were no potential emissions control measures that, if considered collectively, would advance the attainment date by one year or more. --------------------------------------------------------------------------- \1\ On January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), the United State Court of Appeals for the District of Columbia Circuit (D.C. Circuit) found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant solely to the general implementation provisions of Subpart 1 rather than the particulate matter-specific provisions in title I, part D, subpart 4. The court remanded both the 1997 PM2.5 Implementation Rule and the final rule entitled ``Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5 )'' (73 FR 28321, May 16, 2008) to EPA to address this error. In 2014, EPA finalized a rule classifying areas previously designated nonattainment for the 1997 and/or 2006 fine particle pollution standards under Subpart 1, including the bi- state Louisville Area, as ``Moderate'' nonattainment areas under subpart 4 and setting deadlines for SIP submissions addressing the requirements of subpart 4. See 79 FR 31566 (June 2, 2014) [hereinafter 2014 Rule]. --------------------------------------------------------------------------- In 2011, EPA determined that the bi-state Louisville Area had attained the 1997 Annual PM2.5 NAAQS based upon complete, quality-assured, and certified ambient air monitoring data for the 2007-2009 period. See 76 FR 55544 (September 7, 2011); 40 CFR 52.929(b). As a result of this determination and in accordance with 40 CFR 51.1004(c), the requirements for the Area to submit attainment demonstrations and associated RACM, RFP plans, contingency measures, and other planning SIP revisions related to attainment of the 1997 Annual PM2.5 NAAQS are suspended for so long as: The area is redesignated to attainment, at which time the requirements no longer apply; or EPA determines that the area has violated the PM2.5 NAAQS, at which time the area is again required to submit such plans. Therefore, Kentucky withdrew the aforementioned PM2.5 attainment demonstration SIP revision except for the portion addressing emissions inventory requirements under section 172(c)(3). EPA later approved Kentucky's 2002 base-year emissions inventory for the Louisville Area pursuant to section 172(c)(3) on August 2, 2012 (77 FR 45956). On March 5, 2012, Kentucky submitted a request to redesignate the Kentucky portion of the bi-state Louisville Area to attainment for the 1997 Annual PM2.5 NAAQS.\2\ As the result of a 2015 decision from the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015) requiring a SIP-approved Subpart 1 RACM determination prior to the redesignation of a 1997 Annual PM2.5 NAAQS nonattainment area, Kentucky submitted a SIP revision on August 9, 2016, to address the section 172(c)(1) RACM requirements and to support the Commonwealth's March 5, 2012, redesignation request. In that SIP revision, the Commonwealth determined that no additional control measures are necessary in the Area to satisfy the CAA section 172(c)(1) RACM requirements. Kentucky's determination and the Sixth Circuit's decision are discussed in further detail below. --------------------------------------------------------------------------- \2\ Kentucky submitted its redesignation request prior to the aforementioned ruling in Natural Resources Defense Council v. EPA. As discussed in the 2014 Rule, EPA's position is that this ruling does not apply retroactively. See 79 FR at 31568. --------------------------------------------------------------------------- II. What action is EPA proposing to take? EPA is proposing to determine that Kentucky's Subpart 1 RACM determination meets the requirements of section 172(c)(1) of the CAA and is proposing to approve this RACM determination into the SIP for the reasons discussed in Section III below. III. What is EPA's analysis of the Commonwealth's RACM submittal? A. Relationship Between Subpart I RACM and Redesignation Criteria EPA does not believe that Subpart 1 nonattainment planning requirements designed to provide for attainment, including RACM, are ``applicable'' for purposes of CAA section 107(d)(3)(E)(ii) once an area is attaining the NAAQS and, therefore, does not believe that these planning requirements must be approved before EPA can redesignate an area to attainment. See, e.g., 57 FR 13498, 13564 (April 16, 1992); ``Procedures for Processing Requests to Redesignate Areas to Attainment,'' Memorandum from John Calcagni, Director, Air Quality Management Division (September 4, 1992). However, the aforementioned Sixth Circuit decision in Sierra Club v. EPA is inconsistent with this longstanding interpretation regarding section 107(d)(3)(E)(ii). In its decision, the Court vacated EPA's redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton nonattainment area to attainment for the 1997 PM2.5 NAAQS because EPA had not yet approved Subpart 1 RACM for the Cincinnati Area into the Indiana and Ohio SIPs. The Court concluded that ``a State seeking redesignation `shall provide for the implementation' of RACM/RACT [reasonably available control technology], even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. . . . If the State has not done so, EPA cannot `fully approve' the area's SIP, and redesignation to attainment status is improper.'' Sierra Club, 793 F.3d at 670. EPA is bound by the Sixth Circuit's decision in Sierra Club v. EPA within the Court's jurisdiction.\3\ Although EPA continues to believe that Subpart 1 RACM is not an applicable requirement under section 107(d)(3)(E) for an area that has already attained the 1997 Annual PM2.5 NAAQS, EPA is proposing to approve Kentucky's RACM determination into the SIP pursuant to the Court's decision.\4\ --------------------------------------------------------------------------- \3\ The states of Kentucky, Michigan, Ohio, and Tennessee are located within the Sixth Circuit's jurisdiction. \4\ The EPA Region 4 Regional Administrator signed a memorandum on July 20, 2015, seeking concurrence from the Director of EPA's Air Quality Policy Division (AQPD) in the Office of Air Quality Planning and Standards to act inconsistent with EPA's interpretation of CAA sections 107(d)(3)(E) and 172(c)(1) when taking action on pending and future redesignation requests in Kentucky and Tennessee because the Region is bound by the Sixth Circuit's decision in Sierra Club v. EPA. The AQPD Director issued her concurrence on July 22, 2015. This memorandum is not required to satisfy EPA's regional consistency regulations. See 40 CFR 56.5(b)(1); 81 FR 51102 (August 3, 2016). --------------------------------------------------------------------------- [[Page 72757]] B. Subpart 1 RACM Requirements Subpart 1 requires that each attainment plan ``provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emission from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.'' See CAA section 172(c)(1). EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could advance attainment.\5\ Thus, when an area is already attaining the standard, no additional RACM measures are required. EPA's interpretation that Subpart 1 requires only the implementation of RACM measures that would advance attainment was upheld by the United States Court of Appeals in the Fifth Circuit \6\ and by the United States Court of Appeals for the D.C. Circuit.\7\ --------------------------------------------------------------------------- \5\ This interpretation was adopted in the General Preamble, see 57 FR 13498 (April 16, 1992), and has been upheld as applied to the Clean Data Policy, as well as to nonattainment SIP submissions. See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002). \6\ Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002). \7\ Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002); NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009). --------------------------------------------------------------------------- C. Proposed Action In its August 9, 2016, SIP submission, the Commonwealth determined that no additional control measures are necessary in the Area to satisfy the CAA section 172(c)(1) RACM requirement because the Area has attained the 1997 Annual PM2.5 NAAQS. As noted above, EPA has determined that the Area attained the standard by the April 5, 2010, attainment date and that no additional measures are required to satisfy Subpart 1 RACM when an area is attaining the standard. Therefore, EPA proposes to agree with the Commonwealth's analysis, to approve Kentucky's SIP revision, and to incorporate the section 172(c)(1) RACM determination into the SIP. IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is 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.); does 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); does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is 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 does 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). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: October 11, 2016. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2016-25433 Filed 10-20-16; 8:45 am] BILLING CODE 6560-50-P
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G. Protest Activities For the reasons discussed in the measures (RACM) for the Kentucky
The Coast Guard respects the First preamble, the Coast Guard proposes to portion of the Louisville, KY–IN,
Amendment rights of protesters. amend 33 CFR part 165 as follows: nonattainment area for the 1997 Annual
Protesters are asked to contact the fine particulate matter (PM2.5) National
PART 165—REGULATED NAVIGATION Ambient Air Quality Standards
person listed in the FOR FURTHER AREAS AND LIMITED ACCESS AREAS
INFORMATION CONTACT section to
(NAAQS) (hereinafter referred to as the
‘‘bi-state Louisville Area’’ or ‘‘Area’’).
coordinate protest activities so that your ■ 1. The authority citation for part 165
message can be received without DATES: Comments must be received on
continues to read as follows:
jeopardizing the safety or security of or before November 21, 2016.
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; ADDRESSES: Submit your comments,
people, places, or vessels. 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
identified by Docket ID No. EPA–R04–
V. Public Participation and Request for OAR–2016–0526 at http://
Comments No. 0170.1.
www.regulations.gov. Follow the online
■ 2. Add § 165.T13–0929 to read as instructions for submitting comments.
We view public participation as
follows: Once submitted, comments cannot be
essential to effective rulemaking, and
will consider all comments and material § 165.T13–0929 Safety Zone; Willamette edited or removed from regulations.gov.
received during the comment period. River, Portland, OR. EPA may publish any comment received
Your comment can help shape the (a) Safety zone. The following area is to its public docket. Do not submit
outcome of this rulemaking. If you designated a safety zone: Waters of the electronically any information you
submit a comment, please include the Willamette River, within a 450-yard consider to be Confidential Business
docket number for this rulemaking, radius of the fireworks barge located Information (CBI) or other information
indicate the specific section of this between the Burnside and Steel Bridges whose disclosure is restricted by statute.
document to which each comment in Portland, OR. Multimedia submissions (audio, video,
applies, and provide a reason for each (b) Regulations. In accordance with etc.) must be accompanied by a written
suggestion or recommendation. If we § 165.23, no person may enter or remain comment. The written comment is
issue a final rule in this rulemaking, in this safety zone unless authorized by considered the official comment and
because of the closeness of the event, we the Captain of the Port Columbia River should include discussion of all points
would made it effective less than 30 or his designated representative. Also in you wish to make. EPA will generally
days after publication in the Federal accordance with § 165.23, no person not consider comments or comment
Register, and we would explain our may bring into, or allow to remain in contents located outside of the primary
good cause for doing so in the final rule, this safety zone any vehicle, vessel, or submission (i.e., on the web, cloud, or
as required by 5 U.S.C. 553(d)(3). object unless authorized by the Captain other file sharing system). For
We encourage you to submit of the Port Columbia River or his additional submission methods, the full
comments through the Federal designated representative. EPA public comment policy,
eRulemaking Portal at http:// (c) Enforcement period. This section information about CBI or multimedia
www.regulations.gov. If your material will be enforced from 6 p.m. to 8:30 submissions, and general guidance on
cannot be submitted using http:// p.m. on November 13, 2016. making effective comments, please visit
www.regulations.gov, contact the person Dated: October 17, 2016.
http://www2.epa.gov/dockets/
in the FOR FURTHER INFORMATION commenting-epa-dockets.
D. F. Berliner,
CONTACT section of this document for FOR FURTHER INFORMATION CONTACT:
Captain, U.S. Coast Guard, Alternate Captain
alternate instructions. of the Port, Sector Columbia River.
Madolyn Sanchez, Air Regulatory
We accept anonymous comments. All Management Section, Air Planning and
[FR Doc. 2016–25511 Filed 10–20–16; 8:45 am]
comments received will be posted Implementation Branch, Air, Pesticides
BILLING CODE 9110–04–P
without change to http:// and Toxics Management Division, U.S.
www.regulations.gov and will include Environmental Protection Agency,
any personal information you have Region 4, 61 Forsyth Street SW.,
provided. For more about privacy and ENVIRONMENTAL PROTECTION Atlanta, Georgia 30303–8960. Ms.
the docket, you may review a Privacy AGENCY Sanchez can be reached by telephone at
Act notice regarding the Federal Docket (404) 562–9644 or via electronic mail at
40 CFR Part 52
Management System in the March 24, sanchez.madolyn@epa.gov.
2005, issue of the Federal Register (70 [EPA–R04–OAR–2016–0526; FRL–9954–34– SUPPLEMENTARY INFORMATION:
FR 15086). Region 4]
Documents mentioned in this NPRM I. Background
as being available in the docket, and all Air Plan Approval; KY; RACM In 1997, EPA promulgated the first air
public comments, will be in our online Determination for the KY Portion of the quality standards for PM2.5. EPA
docket at http://www.regulations.gov Louisville Area 1997 Annual PM2.5 promulgated an annual standard at a
and can be viewed by following that AGENCY: Environmental Protection level of 15 micrograms per cubic meter
Web site’s instructions. Additionally, if Agency (EPA). (mg/m3) (based on a 3-year average of
you go to the online docket and sign up ACTION: Proposed rule. annual mean PM2.5 concentrations) and
for email alerts, you will be notified a 24-hour standard of 65 mg/m3 (based
mstockstill on DSK3G9T082PROD with PROPOSALS
when comments are posted or a final SUMMARY: The Environmental Protection on a 3-year average of the 98th
rule is published. Agency (EPA) is proposing to approve a percentile of 24-hour concentrations).
State Implementation Plan (SIP) See 62 FR 38652 (July 18, 1997). On
List of Subjects in 33 CFR Part 165 revision submitted by the January 5, 2005 (70 FR 944), and
Harbors, Marine safety, Navigation Commonwealth of Kentucky, through supplemented on April 14, 2005 (70 FR
(water), Reporting and recordkeeping the Kentucky Division for Air Quality 19844), EPA designated the bi-state
requirements, Security measures, (KDAQ) on August 9, 2016, that Louisville Area as nonattainment for the
Waterways. addresses reasonably available control 1997 Annual PM2.5 NAAQS. In that
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action, EPA defined the bi-state ambient air monitoring data for the III. What is EPA’s analysis of the
Louisville Area to include Bullitt and 2007–2009 period. See 76 FR 55544 Commonwealth’s RACM submittal?
Jefferson Counties in Kentucky as well (September 7, 2011); 40 CFR 52.929(b).
A. Relationship Between Subpart I
as Clark and Floyd Counties and a As a result of this determination and in
RACM and Redesignation Criteria
portion of Jefferson County (Madison accordance with 40 CFR 51.1004(c), the
Township) in Indiana. Designation of an requirements for the Area to submit EPA does not believe that Subpart 1
area as nonattainment for PM2.5 starts attainment demonstrations and nonattainment planning requirements
the process for a state to develop and associated RACM, RFP plans, designed to provide for attainment,
submit to EPA a SIP revision under title contingency measures, and other including RACM, are ‘‘applicable’’ for
I, part D of the Clean Air Act (CAA or planning SIP revisions related to purposes of CAA section 107(d)(3)(E)(ii)
Act). This SIP revision must include, attainment of the 1997 Annual PM2.5 once an area is attaining the NAAQS
among other elements, a demonstration NAAQS are suspended for so long as: and, therefore, does not believe that
of how the NAAQS will be attained in The area is redesignated to attainment, these planning requirements must be
the nonattainment area as expeditiously at which time the requirements no approved before EPA can redesignate an
as practicable, but no later than the longer apply; or EPA determines that area to attainment. See, e.g., 57 FR
attainment date required by the CAA. the area has violated the PM2.5 NAAQS, 13498, 13564 (April 16, 1992);
Originally, EPA designated all 1997 at which time the area is again required ‘‘Procedures for Processing Requests to
PM2.5 NAAQS areas under title I, part D, to submit such plans. Therefore, Redesignate Areas to Attainment,’’
subpart 1 (hereinafter ‘‘Subpart 1’’). Kentucky withdrew the aforementioned Memorandum from John Calcagni,
Subpart 1, comprised of CAA sections PM2.5 attainment demonstration SIP Director, Air Quality Management
171–179B, sets forth the basic revision except for the portion Division (September 4, 1992). However,
nonattainment requirements applicable addressing emissions inventory the aforementioned Sixth Circuit
to all nonattainment areas. Section requirements under section 172(c)(3). decision in Sierra Club v. EPA is
172(c) contains the general SIP EPA later approved Kentucky’s 2002 inconsistent with this longstanding
requirements for these areas, including base-year emissions inventory for the interpretation regarding section
RACM requirements under section Louisville Area pursuant to section 107(d)(3)(E)(ii). In its decision, the Court
172(c)(1). On April 25, 2007 (72 FR 172(c)(3) on August 2, 2012 (77 FR vacated EPA’s redesignation of the
20586), EPA promulgated a rule, 45956). Indiana and Ohio portions of the
codified at 40 CFR part 51, subpart Z, On March 5, 2012, Kentucky Cincinnati-Hamilton nonattainment area
to implement the 1997 PM2.5 NAAQS submitted a request to redesignate the to attainment for the 1997 PM2.5 NAAQS
under Subpart 1 (hereinafter referred to Kentucky portion of the bi-state because EPA had not yet approved
as the ‘‘1997 PM2.5 Implementation Louisville Area to attainment for the Subpart 1 RACM for the Cincinnati Area
Rule’’).1 On December 3, 2008, 1997 Annual PM2.5 NAAQS.2 As the into the Indiana and Ohio SIPs. The
Kentucky submitted an attainment result of a 2015 decision from the Court concluded that ‘‘a State seeking
demonstration SIP revision for the Area United States Court of Appeals for the redesignation ‘shall provide for the
that addressed RACM and certain other Sixth Circuit (Sixth Circuit) in Sierra implementation’ of RACM/RACT
section 172(c) elements including a Club v. EPA, 793 F.3d 656 (6th Cir. [reasonably available control
reasonable further progress (RFP) plan, 2015) requiring a SIP-approved Subpart technology], even if those measures are
base-year and attainment-year emissions 1 RACM determination prior to the not strictly necessary to demonstrate
inventories, and contingency measures attainment with the PM2.5
redesignation of a 1997 Annual PM2.5
for the Area. This SIP revision included NAAQS. . . . If the State has not done
NAAQS nonattainment area, Kentucky
a section 172(c)(1) RACM determination so, EPA cannot ‘fully approve’ the area’s
submitted a SIP revision on August 9,
that there were no potential emissions SIP, and redesignation to attainment
2016, to address the section 172(c)(1)
control measures that, if considered status is improper.’’ Sierra Club, 793
RACM requirements and to support the
collectively, would advance the F.3d at 670.
Commonwealth’s March 5, 2012,
attainment date by one year or more. EPA is bound by the Sixth Circuit’s
In 2011, EPA determined that the bi- redesignation request. In that SIP
revision, the Commonwealth decision in Sierra Club v. EPA within
state Louisville Area had attained the the Court’s jurisdiction.3 Although EPA
1997 Annual PM2.5 NAAQS based upon determined that no additional control
measures are necessary in the Area to continues to believe that Subpart 1
complete, quality-assured, and certified RACM is not an applicable requirement
satisfy the CAA section 172(c)(1) RACM
1 On January 4, 2013, in Natural Resources requirements. Kentucky’s determination under section 107(d)(3)(E) for an area
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. and the Sixth Circuit’s decision are that has already attained the 1997
2013), the United State Court of Appeals for the discussed in further detail below. Annual PM2.5 NAAQS, EPA is
District of Columbia Circuit (D.C. Circuit) found proposing to approve Kentucky’s RACM
that EPA erred in implementing the 1997 PM2.5 II. What action is EPA proposing to determination into the SIP pursuant to
NAAQS pursuant solely to the general take? the Court’s decision.4
implementation provisions of Subpart 1 rather than
the particulate matter-specific provisions in title I, EPA is proposing to determine that
3 The states of Kentucky, Michigan, Ohio, and
part D, subpart 4. The court remanded both the Kentucky’s Subpart 1 RACM
1997 PM2.5 Implementation Rule and the final rule Tennessee are located within the Sixth Circuit’s
determination meets the requirements of jurisdiction.
entitled ‘‘Implementation of the New Source
Review (NSR) Program for Particulate Matter Less section 172(c)(1) of the CAA and is 4 The EPA Region 4 Regional Administrator
mstockstill on DSK3G9T082PROD with PROPOSALS
than 2.5 Micrometers (PM2.5)’’ (73 FR 28321, May proposing to approve this RACM signed a memorandum on July 20, 2015, seeking
16, 2008) to EPA to address this error. In 2014, EPA determination into the SIP for the concurrence from the Director of EPA’s Air Quality
finalized a rule classifying areas previously reasons discussed in Section III below. Policy Division (AQPD) in the Office of Air Quality
designated nonattainment for the 1997 and/or 2006 Planning and Standards to act inconsistent with
fine particle pollution standards under Subpart 1, EPA’s interpretation of CAA sections 107(d)(3)(E)
including the bi-state Louisville Area, as 2 Kentucky submitted its redesignation request and 172(c)(1) when taking action on pending and
‘‘Moderate’’ nonattainment areas under subpart 4 prior to the aforementioned ruling in Natural future redesignation requests in Kentucky and
and setting deadlines for SIP submissions Resources Defense Council v. EPA. As discussed in Tennessee because the Region is bound by the Sixth
addressing the requirements of subpart 4. See 79 FR the 2014 Rule, EPA’s position is that this ruling Circuit’s decision in Sierra Club v. EPA. The AQPD
31566 (June 2, 2014) [hereinafter 2014 Rule]. does not apply retroactively. See 79 FR at 31568. Director issued her concurrence on July 22, 2015.
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B. Subpart 1 RACM Requirements Thus, in reviewing SIP submissions, reference, Intergovernmental relations,
Subpart 1 requires that each EPA’s role is to approve state choices, Nitrogen dioxide, Particulate matter,
attainment plan ‘‘provide for the provided that they meet the criteria of Reporting and recordkeeping
implementation of all reasonably the CAA. Accordingly, this proposed requirements, Sulfur oxides, Volatile
available control measures as action merely proposes to approve state organic compounds.
expeditiously as practicable (including law as meeting federal requirements and Authority: 42 U.S.C. 7401 et seq.
such reductions in emission from the does not impose additional
requirements beyond those imposed by Dated: October 11, 2016.
existing sources in the area as may be Heather McTeer Toney,
obtained through the adoption, at a state law. For that reason, this proposed
action: Regional Administrator, Region 4.
minimum, of reasonably available
control technology), and shall provide • Is not a significant regulatory action [FR Doc. 2016–25433 Filed 10–20–16; 8:45 am]
for attainment of the national primary subject to review by the Office of BILLING CODE 6560–50–P
ambient air quality standards.’’ See CAA Management and Budget under
section 172(c)(1). EPA has consistently Executive Orders 12866 (58 FR 51735,
interpreted this provision to require October 4, 1993) and 13563 (76 FR 3821, ENVIRONMENTAL PROTECTION
only implementation of potential RACM January 21, 2011); AGENCY
measures that could advance • does not impose an information
collection burden under the provisions 40 CFR Part 52
attainment.5 Thus, when an area is
already attaining the standard, no of the Paperwork Reduction Act (44
additional RACM measures are U.S.C. 3501 et seq.); [EPA–R03–OAR–2016–0308; FRL–9954–17–
required. EPA’s interpretation that • is certified as not having a Region 3]
Subpart 1 requires only the significant economic impact on a
substantial number of small entities Approval and Promulgation of Air
implementation of RACM measures that Quality Implementation Plans; Virginia;
would advance attainment was upheld under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.); Removal of Stage II Gasoline Vapor
by the United States Court of Appeals in
the Fifth Circuit 6 and by the United • does not contain any unfunded Recovery Requirements for Gasoline
mandate or significantly or uniquely Dispensing Facilities
States Court of Appeals for the D.C.
Circuit.7 affect small governments, as described AGENCY: Environmental Protection
in the Unfunded Mandates Reform Act Agency (EPA).
C. Proposed Action of 1995 (Pub. L. 104–4);
ACTION: Proposed rule.
In its August 9, 2016, SIP submission, • does not have Federalism
the Commonwealth determined that no implications as specified in Executive SUMMARY: The Environmental Protection
additional control measures are Order 13132 (64 FR 43255, August 10, Agency (EPA) proposes to approve the
necessary in the Area to satisfy the CAA 1999); state implementation plan (SIP) revision
section 172(c)(1) RACM requirement • is not an economically significant submitted by the Commonwealth of
because the Area has attained the 1997 regulatory action based on health or Virginia for the purpose of removing the
Annual PM2.5 NAAQS. As noted above, safety risks subject to Executive Order requirement for gasoline vapor recovery
EPA has determined that the Area 13045 (62 FR 19885, April 23, 1997); equipment on gasoline dispensing
attained the standard by the April 5, • is not a significant regulatory action
pumps (otherwise referred to as Stage II
2010, attainment date and that no subject to Executive Order 13211 (66 FR
vapor recovery, or simply as Stage II) in
additional measures are required to 28355, May 22, 2001);
Virginia area facilities formerly required
satisfy Subpart 1 RACM when an area • is not subject to requirements of
to have installed and operated Stage II
is attaining the standard. Therefore, EPA Section 12(d) of the National
vapor recovery controls under the prior,
proposes to agree with the Technology Transfer and Advancement
approved Virginia SIP. In the Rules and
Commonwealth’s analysis, to approve Act of 1995 (15 U.S.C. 272 note) because
Regulations section of this Federal
Kentucky’s SIP revision, and to application of those requirements would
Register, EPA is approving the
incorporate the section 172(c)(1) RACM be inconsistent with the CAA; and
• does not provide EPA with the Commonwealth’s SIP submittal as a
determination into the SIP. direct final rule without prior proposal
discretionary authority to address, as
IV. Statutory and Executive Order appropriate, disproportionate human because the Agency views this as a
Reviews health or environmental effects, using noncontroversial submittal and
practicable and legally permissible anticipates no adverse comments. A
Under the CAA, the Administrator is detailed rationale for EPA’s approval of
required to approve a SIP submission methods, under Executive Order 12898
(59 FR 7629, February 16, 1994). Virginia’s Stage II-related SIP revision
that complies with the provisions of the with amended regulations addressing
Act and applicable federal regulations. The SIP is not approved to apply on
any Indian reservation land or in any vapor recovery is set forth in the direct
See 42 U.S.C. 7410(k); 40 CFR 52.02(a). final rule. If no adverse comments are
other area where EPA or an Indian tribe
has demonstrated that a tribe has received in response to this action, no
This memorandum is not required to satisfy EPA’s
regional consistency regulations. See 40 CFR jurisdiction. In those areas of Indian further activity is contemplated. If EPA
56.5(b)(1); 81 FR 51102 (August 3, 2016). country, the rule does not have tribal receives adverse comments, the direct
5 This interpretation was adopted in the General
implications as specified by Executive final rule will be withdrawn and all
mstockstill on DSK3G9T082PROD with PROPOSALS
Preamble, see 57 FR 13498 (April 16, 1992), and has public comments received will be
been upheld as applied to the Clean Data Policy, as Order 13175 (65 FR 67249, November 9,
well as to nonattainment SIP submissions. See 2000), nor will it impose substantial addressed in a subsequent final rule
NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra direct costs on tribal governments or based on this proposed rule. EPA will
Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002).
preempt tribal law. not institute a second comment period.
6 Sierra Club v. EPA, 314 F.3d 735, 743–745 (5th
Any parties interested in commenting
Cir. 2002). List of Subjects in 40 CFR Part 52 on this action should do so at this time.
7 Sierra Club v. EPA, 294 F.3d 155, 162–163 (D.C.
Cir. 2002); NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Environmental protection, Air DATES: Comments must be received in
Cir. 2009). pollution control, Incorporation by writing by November 21, 2016.
VerDate Sep<11>2014 17:22 Oct 20, 2016 Jkt 241001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\21OCP1.SGM 21OCP1](https://thefederalregister.org/doc/81_FR_72959/page/3.svg)
Document Created: 2018-02-13 16:35:49
Document Modified: 2018-02-13 16:35:49
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before November 21, 2016. | |
| Contact | Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Sanchez can be reached by telephone at (404) 562-9644 or via electronic mail at [email protected] | |
| FR Citation | 81 FR 72755 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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