2011-22649. Approval and Promulgation of Implementation Plans and Designations of Areas for Air Quality Planning Purposes; Kentucky and Indiana; Louisville; Determination of Attainment by Applicable Attainment Date for the 1997 Annual Fine ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is determining that the bi-state Louisville, Kentucky-Indiana, fine particulate (PM_2.5) nonattainment Area (hereafter referred to as “the Louisville Area”) has attained the 1997 annual PM_2.5 national ambient air quality standards (NAAQS) by the applicable attainment date of April 5, 2010. The determination of attainment was previously finalized by EPA on March 9, 2011, and was based on quality-assured and certified monitoring data for the 2007-2009 monitoring period. The Louisville Area is comprised of Jefferson County in Kentucky, and Clark, Floyd and a portion of Jefferson Counties in Indiana. EPA is determining to find that the above-identified Area attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date. EPA is finalizing this action because it is consistent with the Clean Air Act (CAA) and its implementing regulations.

DATES:

Effective Date: This final rule is effective on October 7, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R04-OAR-2010-0414. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the electronic docket, 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 for public inspection during normal business hours 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.

FOR FURTHER INFORMATION CONTACT:

Joel Huey or Sara Waterson, 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. Mr. Huey's telephone number is [phone]. Mr. Huey can also be reached via electronic mail at [e-mail]. Ms. Waterson may be reached by phone at [phone] or via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. What action is EPA taking?

II. What is the effect of this action?

III. What is EPA's final action?

IV. Statutory and Executive Order Reviews

I. What action is EPA taking?

Based on EPA's review of the quality-assured and certified monitoring data for 2007-2009, and in accordance with section 179(c)(1) of the CAA and EPA's regulations, EPA is determining that the Louisville Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010.

On March 9, 2011, EPA published a final rulemaking to make a determination of attainment to suspend the requirements for the Louisville Area to submit an attainment demonstration and associated reasonably available control measures (RACM), reasonable further progress (RFP) plan, contingency measures, and other planning State Implementation Plan (SIP) revisions related to attainment of the 1997 annual PM_2.5 NAAQS so long as the Area continues to attain the 1997 annual PM_2.5 NAAQS. See 76 FR 12860. This final rulemaking also includes useful background information on the PM_2.5 NAAQS relevant to the Louisville Area. Today's action makes a determination that the Louisville Area attained the1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. Today's action is simply focused on the date by which the Area had attaining data.

Other specific requirements of the determination and the rationale for EPA's action are explained in the notice of proposed rulemaking (NPR) published on June 15, 2011 (76 FR 34935). The comment period closed on July 15, 2011. No comments were received in response to the NPR.

II. What is the effect of this action?

Today's action is a determination that the Louisville Area attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010, consistent with CAA section 179(c)(1). Finalizing this action does not constitute a redesignation of Louisville Area to attainment of the 1997 annual PM_2.5 NAAQS under section 107(d)(3) of the CAA. Further, finalizing this action does not involve approving maintenance plans for the Louisville Area as required under section 175A of the CAA, nor would it find that the Louisville Area has met all other requirements for redesignation. The designation status of the Louisville Area remains nonattainment for the 1997 annual PM_2.5 NAAQS until such time as EPA determines that the Area meets the CAA requirements for redesignation to attainment and takes action to redesignate the Area.

III. What is EPA's final action?

EPA is determining, based on quality-assured and certified monitoring data for the 2007-2009 monitoring period, that the Louisville Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. This action is being taken pursuant to section 179(c)(1) of the CAA and is consistent with the CAA and its implementing regulations.

IV. Statutory and Executive Order Reviews

This action makes a determination of attainment based on air quality, and would not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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). In addition, this 1997 PM_2.5 determination of attainment by applicable attainment date for the Louisville Area does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 this action 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 rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 2011. Filing a petition for reconsideration by the Administrator of these final rules do not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Dated: August 18, 2011.

Beverly H. Banister,

Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart P—Indiana

2. Section 52.774 is added to read as follows:

§ 52.774

Determination of attainment.

Based upon EPA's review of the air quality data for the 3-year period 2007-2009, EPA determined that the Louisville, Kentucky-Indiana PM_2.5 nonattainment Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. Therefore, EPA has met the requirement pursuant to CAA section 179(c) to determine, based on the Area's air quality as of the attainment date, whether the Area attained the standard. EPA also determined that the Louisville PM_2.5 nonattainment Area is not subject to the consequences of failing to attain pursuant to section 179(d).

Subpart S—Kentucky

3. Section 52.929 is amended by adding paragraph (b) to read as follows:

§ 52.929

Determination of attainment.

* * * * *

(b) Based upon EPA's review of the air quality data for the 3-year period 2007-2009, EPA determined that the Louisville, Kentucky-Indiana PM_2.5 nonattainment Area attained the 1997 annual PM_2.5 NAAQS by the applicable attainment date of April 5, 2010. Therefore, EPA has met the requirement pursuant to CAA section 179(c) to determine, based on the Area's air quality as of the attainment date, whether the Area attained the standard. EPA also determined that the Louisville PM_2.5 nonattainment Area is not subject to the consequences of failing to attain pursuant to section 179(d).