Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-Hamilton 1997 8-Hour Ozone Nonattainment Area to Attainment, 26685-26701 [2010-11145]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 91 (Wednesday, May 12, 2010)]
[Proposed Rules]
[Pages 26685-26701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11145]


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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 Cincinnati-Hamilton 1997 8-Hour Ozone 
Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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 tri-state 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 tri-
state 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. https://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 
https://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 https://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The https://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 https://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

[[Page 26686]]

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 https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
https://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 https://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 tri-state 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 tri-state 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 (https://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

[[Page 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 fourth-highest 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 bi-state 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 Cincinnati-Hamilton 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 Cincinnati-Hamilton 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 anti-
backsliding 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 anti-backsliding 
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

[[Page 26688]]

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 Cincinnati-Hamilton 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, anti-
backsliding 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

[[Page 26689]]

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 Cincinnati-Hamilton 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 tri-state 
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

[[Page 26690]]

Cincinnati-Hamilton Area for the ozone seasons from 2007-2009. These 
data have been quality-assured and certified, and are recorded in AQS. 
The fourth-highest 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 Cincinnati-Hamilton OH-KY-IN Area
                                                                   [Parts per million]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           2007 4th high   2008 4th high   2009 4th high     2007-2009
               State*                        County                    Monitor                 (ppm)           (ppm)           (ppm)       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-           0.089           0.086           0.072           0.082
                                                              061-0006.
                                                             Cleves, 39-061-0010........           0.086           0.077           0.065           0.076
                                                             250 Wm. Howard Taft,                  0.086           0.080           0.074           0.080
                                                              Cincinnati, 39-061-0040.
                                     Warren................  Lebanon, 39-165-0007.......           0.088           0.082           0.077           0.082
Kentucky...........................  Boone.................  KY 338 & Lower River Road,            0.078           0.064           0.064           0.068
                                                              21-037-3002.
                                     Campbell..............  Highland Heights, 21-117-             0.086           0.075           0.068           0.076
                                                              0007.
                                     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 
Cincinnati-Hamilton 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 
Cincinnati-Hamilton 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

[[Page 26691]]

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.
---------------------------------------------------------------------------

    \1\ 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 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).
---------------------------------------------------------------------------

    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 tri-state 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

[[Page 26692]]

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 
federally-supported 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 Federally-approved transportation conformity SIP. However, 
conformity analyses are performed pursuant to EPA's Federal conformity 
rules.
---------------------------------------------------------------------------

    \2\ CAA 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.
---------------------------------------------------------------------------

    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 fully-
approved part D NSR program prior to approval of the redesignation 
request.

[[Page 26693]]

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-Akron-Lorraine, 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 
Cincinnati-Hamilton 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