[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)]
[Rules and Regulations]
[Pages 12860-12862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5214]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2010-0210; FRL-9277-2]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Kentucky; Louisville Nonattainment Area; Determination of
Attainment of the 1997 Annual Fine Particle Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is determining that the bi-state Louisville (Indiana and
Kentucky) fine particle (PM2.5) nonattainment area has
attained the 1997 annual average PM2.5 National Ambient Air
Quality Standard (NAAQS). This determination is based upon complete,
quality-assured, and certified ambient air monitoring data for the
2007-2009 period showing that the area has monitored attainment of the
annual PM2.5 NAAQS. Preliminary data for 2010 available to
date are consistent with continued attainment. As a result of this
determination, the requirements for the area to submit an attainment
demonstration and associated reasonably available control measures
(RACM), a reasonable further progress (RFP) plan, contingency measures,
and other planning State Implementation Plan (SIP) revisions related to
attainment of the standards shall be suspended for so long as the area
continues to attain the annual PM2.5 NAAQS.
DATES: This final rule is effective on March 9, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2010-0210. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (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 through http://www.regulations.gov or in hard copy at
the Environmental Protection Agency, Region 5 office, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604, or in
Region 4 at the Environmental Protection Agency, Air, Pesticides and
Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia.
These facilities are open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We recommend that you telephone
John Summerhays, Environmental Scientist, at (312) 886-6067 before
visiting the Region 5 office or Joel Huey, Environmental Scientist, at
(404) 562-9104 before visiting the Region 4 office.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067,
[email protected]. In Region 4, contact Joel Huey, Environmental
Scientist, 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, (404) 562-9104, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
This SUPPLEMENTARY INFORMATION section is arranged as follows:
I. What action is EPA taking?
II. What is the background for this action?
III. What did EPA propose?
IV. What does the most recent monitoring data show?
V. What is the effect of this action?
VI. When is this action effective?
VII. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is determining that the Louisville PM2.5 annual
NAAQS nonattainment area (which includes Jefferson and Bullitt Counties
in Kentucky and Clark and Floyd Counties and the Madison Township of
Jefferson County in Indiana) has attained the 1997 annual
PM2.5 NAAQS. This determination is based upon complete,
quality-assured, and certified ambient air monitoring data for the
2007-2009 monitoring period that show that the area has monitored
attainment of the 1997 annual PM2.5 NAAQS. Preliminary data
available for 2010 are consistent with continued attainment.
II. What is the background for this action?
On July 18, 1997 (62 FR 36852), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/
[[Page 12861]]
m\3\) based on a three-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour standard
of 65 [mu]g/m\3\ (today's action does not address the 24-hour
standard). See 40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA
published its air quality designations and classifications for the 1997
PM2.5 NAAQS based upon air quality monitoring data from
those monitors for calendar years 2001-2003. These designations became
effective on April 5, 2005. The Louisville area was designated
nonattainment for the 1997 PM2.5 NAAQS. See 40 CFR 81.315
(Indiana) and 40 CFR 81.318 (Kentucky).
On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual
PM2.5 NAAQS at 15.0 [mu]g/m\3\ based on a three-year average
of annual mean PM2.5 concentrations, and promulgated a 24-
hour standard of 35 [mu]g/m\3\ based on a three-year average of the
98th percentile of 24-hour concentrations. On November 13, 2009, EPA
designated the Louisville area as attainment for the 2006 24-hour
standard (74 FR 58688). In that action, EPA also clarified the
designations for the NAAQS promulgated in 1997, stating that the
Louisville area was designated as nonattainment for the annual
standards but attainment for the 24-hour standards. Thus, today's
action does not address attainment of either the 1997 or the 2006 24-
hour standards.
In response to legal challenges of the annual standards promulgated
in 2006, the U.S. Court of Appeals for the District of Columbia Circuit
(DC Circuit) remanded these standards to EPA for further consideration.
See American Farm Bureau Federation and National Pork Producers
Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). However, given
that the 1997 and 2006 annual standards are essentially identical,
attainment of the 1997 annual standards would also indicate attainment
of the remanded 2006 annual standards.
On April 25, 2007 (72 FR 20664), EPA promulgated its
PM2.5 implementation rule, codified at 40 CFR part 51,
subpart Z, in which the Agency provided guidance for state and tribal
plans to implement the 1997 PM2.5 standards. This rule, at
40 CFR 51.1004(c), specifies some of the regulatory consequences of
attaining the standards, as discussed below.
III. What did EPA propose?
EPA proposed that the Louisville area (including portions in
Indiana and Kentucky) has attained the 1997 PM2.5 NAAQS. EPA
published this proposed determination on September 14, 2010, at 75 FR
55725. Further details regarding the proposal are available in the
proposed rule. EPA's proposed action provided a 30-day public comment
period. We did not receive any comments.
IV. What does the most recent monitoring data show?
EPA examined monitoring data for 2010 that are available to date in
the EPA Air Quality System (AQS) database, but not yet certified. While
these data are insufficient to represent full year average
concentrations, all sites within the area average below 15.0 [mu]g/m\3\
and thus the available data suggest that this area continues to attain
the 1997 annual PM2.5 NAAQS.
V. What is the effect of this action?
On the basis of this review, EPA has determined that the Louisville
area has attained the 1997 annual PM2.5 NAAQS based on
complete, quality-assured and certified 2007-2009 data. Data available
for 2010 that are in the EPA AQS database but not yet certified suggest
that the area continues to attain the 1997 annual PM2.5
NAAQS. As a result of this determination, under the provisions of EPA's
PM2.5 implementation rule (see 40 CFR 51.1004(c)), the
requirements for Indiana and Kentucky to submit attainment
demonstrations and associated RACM, RFP plans, contingency measures,
and any other planning SIPs related to attainment of the 1997 annual
PM2.5 NAAQS for the Louisville PM2.5
nonattainment area are suspended for so long as the area continues to
attain the 1997 annual PM2.5 NAAQS. This suspension will
continue until such time, if any, that EPA subsequently determines that
the area has violated the 1997 annual PM2.5 NAAQS.
If EPA subsequently determines, after notice-and-comment rulemaking
in the Federal Register, that the area has violated the 1997 annual
PM2.5 NAAQS, the basis for the suspension of the specific
requirements, set forth at 40 CFR 51.1004(c), would no longer exist for
the pertinent area, and EPA would take action to withdraw the
determination and direct the pertinent area to address the suspended
requirements.
The determination that the air quality data show attainment of the
1997 annual PM2.5 NAAQS is not equivalent to the
redesignation of the area to attainment for the 1997 annual
PM2.5 NAAQS under section 107(d)(3) of the Clean Air Act
(CAA). Further, finalizing this action does not involve approving
maintenance plans for the area as required under section 175A of the
CAA, nor does it involve a determination that the area has met all
requirements for a redesignation. The designation status of the area
will remain nonattainment for the 1997 annual PM2.5 NAAQS
until such time as EPA determines that the area meets the CAA
requirements for redesignation to attainment for that standard.
VI. When is this action effective?
EPA finds that there is good cause for this determination to become
effective on the date of publication of this action in the Federal
Register, because a delayed effective date is unnecessary due to the
nature of the action. The expedited effective date for this action is
authorized under both 5 U.S.C. 553(d)(1), which provides that rule
actions may become effective less than 30 days after publication if the
rule ``grants or recognizes an exemption or relieves a restriction,''
and 5 U.S.C. 553(d)(3), which allows an effective date less than 30
days after publication ``as otherwise provided by the agency for good
cause found and published with the rule.'' As noted above, this
determination of attainment will result in a suspension of the
requirements for the Louisville area to submit an attainment
demonstration, a RFP plan, section 172(c)(9) contingency measures, and
any other planning SIPs related to attainment of the 1997 annual
PM2.5 NAAQS for so long as the area continues to attain the
PM2.5 NAAQS. The suspension of these requirements is
sufficient reason to allow an expedited effective date of this rule
under 5 U.S.C. 553(d)(1). In addition, the suspension of the
obligations of Indiana and Kentucky to make submissions for these
requirements provides good cause to make this rule effective on the
date of publication of this action in the Federal Register, pursuant to
5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed
in 5 U.S.C. 553(d) is to give affected parties a reasonable time to
adjust their behavior and prepare before the final rule takes effect.
Where, as here, the final rule suspends requirements rather than
imposing obligations, affected parties, such as the Louisville area, do
not need time to adjust and prepare before the rule takes effect.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is not subject to
[[Page 12862]]
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). This action makes a determination based on air
quality data and results in the suspension of certain Federal
requirements. Accordingly, the Administrator certifies that this rule
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Because this rule makes a determination based on air quality
data, and results in the suspension of certain Federal requirements, it
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).
This rule also does not have tribal applications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely makes a determination
based on air quality data and results in the suspension of certain
Federal requirements, and does not alter the relationship or the
distribution of power and responsibilities established in the CAA. This
rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks'' (62 FR 19885, April 23,
1997) because it determines that air quality in the affected area is
meeting Federal standards.
The requirements of 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply because it
would be inconsistent with applicable law for EPA, when determining the
attainment status of an area, to use voluntary consensus standards in
place of promulgated air quality standards and monitoring procedures to
otherwise satisfy the provisions of the CAA. This rule does not impose
an information collection burden under the provisions of the Paper
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Under Executive Order 12898, EPA finds that this rule, pertaining
to the determination of attainment of the fine particle standards for
the Louisville (Indiana and Kentucky) area, involves determination of
attainment based on air quality data and will not have
disproportionately high and adverse human health or environmental
effects on any communities in the area, including minority and low-
income communities.
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because there is no federally recognized Indian country located in the
states, and EPA notes that it will not impose substantial direct costs
on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing these actions and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rules in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. These actions are not ``major rules'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of these actions must be filed in the United States Court of Appeals
for the appropriate circuit by May 9, 2011. Filing a petition for
reconsideration by the Administrator of these final rules does not
affect the finality of this action 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. These actions may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: January 12, 2011.
Susan Hedman,
Regional Administrator, Region 5.
Dated: February 25, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart P--Indiana
0
2. Section 52.776 is amended by adding paragraph (t) to read as
follows:
Sec. 52.776 Control strategy: Particulate matter.
* * * * *
(t) Determination of Attainment. EPA has determined, as of March 9,
2011, that the Louisville, IN-KY PM2.5 nonattainment area
has attained the 1997 PM2.5 NAAQS. These determinations, in
accordance with 40 CFR 51.1004(c), suspend the requirements for this
area to submit an attainment demonstration, associated reasonably
available control measures, reasonable further progress, contingency
measures, and other plan elements related to attainment of the
standards for as long as the area continues to meet the 1997
PM2.5 NAAQS.
Subpart S--Kentucky
0
3. Section 52.933 is amended by designating the existing text as
paragraph (a) and by adding paragraph (b) to read as follows:
Sec. 52.933 Control strategy: Sulfur oxides and particulate matter.
* * * * *
(b) Determination of Attainment. EPA has determined, as of March 9,
2011, that the Louisville, IN-KY PM2.5 nonattainment area
has attained the 1997 PM2.5 NAAQS. These determinations, in
accordance with 40 CFR 51.1004(c), suspend the requirements for this
area to submit an attainment demonstration, associated reasonably
available control measures, reasonable further progress, contingency
measures, and other plan elements related to attainment of the
standards for as long as the area continues to meet the 1997
PM2.5 NAAQS.
[FR Doc. 2011-5214 Filed 3-8-11; 8:45 am]
BILLING CODE 6560-50-P