According to the emergency regulation, comments will be accepted on the emergency rule until January 3, 2006. These comments, transmitted electronically and by fax on January 2, 2006, are thus timely.
KRC opposes the repeal of 401 KAR 65:010 Vehicle Emission Control Program, for three independent and adequate reasons: first, because the approval by the EPA of the removal of the vehicle testing program as a regulatory measure in the approved Kentucky State Implementation Plan and the concurrent shifting of that measure to the contingency category of the state SIP, was in specific violation of the 8-Hour Implementation Rule law so that the I/M program was required to be continued under the state SIP; second, because until the state demonstrates that it can achieve compliance with the 8-hour standard without the I/M program, Section 110(l) prohibits removal of the control measure; and third, because the repeal of the prior regulation, rather than the suspension of the regulation or other action to defer the effectiveness of the rule, fails to satisfy the requirement that contingency measures be available to be implemented if the area fails to maintain attainment status.
As to the first point, EPA’s approval of the movement of the regulation underlying the Northern Kentucky inspection and maintenance program (I/M program) from the active portion of the Kentucky SIP to the contingency measures section of the Northern Kentucky 1-Hour Ozone Maintenance Plan is in conflict with the 8-Hour Implementation Rule.
The 8-Hour Implementation Rule, which implements an “applicable” requirement under Section 110(l), specifically prohibits the shifting of the I/M program for Northern Kentucky into the contingency category at this time. On April 15, 2004, EPA published the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard – Phase I. That final rule addressed several key components of the proposed implementation strategy for the 8-hour ozone standard, including the classification of areas for purposes of the 8-hour ozone NAAQS and the transition from the 1-hour to 8-hour ozone standard. Specifically with reference to this proposed SIP revision, the April 15, 2004 final rule specifically addressed how antibacksliding principles would be applied to ensure continued progress towards attainment of the 8-House Ozone NAAQS.
Since Northern Kentucky was in attainment and maintenance status with respect to the 1-hour ozone standard at the time that the area was designated by EPA as being in nonattainment with the 8-hour ozone standard, the region fell within the category of “8-Hour NAAQS Nonattainment/1-Hour NAAQS Maintenance” under 40 C.F.R. 51.905(a)(2) which provides that:
An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900 (f) to the extent such obligations are required by the approved SIP, except as provided in paragraph (b) of this section. Applicable measures in the SIP must continue to be implemented; however, if these measures were shifted to contingency measures prior to designation for the 8-hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area’s requirements under the 8-hour NAAQS. The State may not remove such measures from the SIP.
40 CFR 51.905(a)(2) (Italics added).
In determining what obligations are imposed by the final rule on the Northern Kentucky portion of the Northern Kentucky – Cincinnati/Hamilton Ohio SIP, certain threshold factual issues must be considered. First, it is clear that 40 CFR 51.905(a)(2) applies since the status of Northern Kentucky’s counties at the time of the designation for the 8-hour NAAQS were attainment for the 1-hour ambient air quality standard for ozone, and nonattainment for the 8-hour standard.
Second, it is clear that the vehicle I/M program was a component of the approved SIP and thus constitutes an “obligation [ ] required by the approved SIP. The regulation distinguishes those measures required by the approved SIP from those required by the Act to be implemented by virtue of the applicable 8-hour classification category, making clear that even if not required to be maintained by the classification of the area under the 8-hour rule, the maintenance measures for the 1-hour plan must be continued, unless shifted to the contingency category before designation. In Northern Kentucky, the vehicle I/M program was not shifted to a contingency measure prior to the designation of the region for the 8-hour ozone NAAQS.
The only remaining threshold, then, is whether an I/M program is an “applicable requirement” since 51.905(a)(2) requires that the applicable requirements “as defined in section 51.900(f)” continue to be implemented until the 8-hour standard is attained. The referenced section, 51.900(f) lists “inspection and maintenance programs” as one of twelve “applicable requirements” that must therefore be continued.
After April 15, 2004, then, by virtue of the mandate that “1-hour maintenance, 8-hour nonattainment” areas continue the control measures in the maintenance plan, whatever flexibility EPA regulations or policies might have previously claimed to allow termination or removal of an I/M program from a 1-hour ozone maintenance area was bounded by the unambiguous requirement that such measures continue after the date of designation as nonattainment for the 8-hour ozone standard.
40 CFR 51.905(a)(2) contains one exception to the unambiguous requirement to continue the maintenance plan requirements. An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900(f) to the extent such obligations are required by the approved SIP, “except as provided in paragraph (b) of this section.”
The exception provided in paragraph (b) of 40 CFR 51.905 allows an applicable requirement to be shifted to a contingency measure once the area attains the 8-hour standard. The clear conclusion from this language is that applicable requirements (such as the explicitly included inspection and maintenance program) may not be transferred to a contingency measure prior to that time. Because the Northern Kentucky I/M program was not transferred to a contingency measure prior to the 8-hour designations, Kentucky must continue to implement it.
KRC raised this precise question with EPA by email on January 9, 2005, and received a response from the Air Programs Branch contact for EPA’s Region IV indicating that “in the mid-90’s, the Agency published a FR that gives some leeway to areas with only a basic I/M program requirement. I think that is the subject of the May 12 memo you requested.” Correspondence from Kay Prince, EPA Region IV, January 9, 2005.
The May 12, memo in question, from Tom Helms and Leila Cook to all Air Program Managers at EPA on “1-Hour Ozone Maintenance Plans Containing Basic I/M Programs,” is flatly at odds with the unambiguous and mandatory language of 40 CFR 51.905(a)(2). The memorandum acknowledges that areas that are maintenance for the 1-hour standard and nonattainment for the 8-hour NAAQS are required to maintain I/M programs, but then creates out of whole cloth a new exemption to the 2004 regulations based on a 1995 regulation that addressed 1-hour attainment. According to the memorandum: Specifically, you should be aware of special provisions that were published January 5, 1995 (60 FR 1735) which apply to areas required to implement basic I/M programs under the 1-hour ozone standard that are subsequently redesignated to attainment for that standard. These provisions can be found at 51.372(c) of the I/M rule, under the heading “Redesignation requests.” Under these provisions, a basic I/M area which has been redesignated to attainment for the 1-hour ozone standard can convert the I/M program to a contingency measures as part of the area’s maintenance plan. Assuming that the 1-hour maintenance area in question is subsequently designated nonattainment for the 80-hour ozone standards, but a classification that would not otherwise trigger the I/M requirement, such an area continues to have the option of converting the I/M program to a contingency measure, provided the area can demonstrate that doing so will not interfere with its ability to comply with any NAAQS or any other applicable CAA requirement [as required in compliance with section 110 of the CAA}.
Unfortunately for the agency, the 2004 regulation simply will not admit to a reading that it is subject to an additional exception beyond that provided in the rule itself. It does not pass the straight-face test that a rule stating unequivocally that maintenance plan measures must be continued unless they were shifted to contingency status prior to designation, really meant all maintenance plan measures other than those requiring basic I/M programs”. Whatever flexibility might have existed by rulemaking in 1995 was constrained in the 2004 rule, and the agency cannot read into the latter rule an implied exception for basic I/M programs.
In addition to the plain and unambiguous language of 40 CFR 51.905(a)(2) that precludes shifting of “applicable requirements” to the contingency category, and the inclusion of all I/M programs within the regulatory definition of “applicable requirements,” the regulatory history of the new rule makes clear that the agency did not contemplate an exception that would allow a shift of I/M to a contingency measure pursuant to section 51.372(c). The basis and purpose statement, or “preamble” to the April 15, 2004 rule states that “upon designation as nonattainment for the 8-hour NAAQS, a 1-hour maintenance area will not be able to shift adopted controls (i.e., those identified as ‘applicable requirements’ in the regulation) to contingency measures as those obligations are now defined as ‘applicable requirements.’” 69 Fed. Reg. at 23,979. There is no ambiguity in this language and no exception for basic I/M programs as claimed in the May 12, 2004 memo.
Since 40 CFR 51.905(a)(2) specifically requires that maintenance measures such as the Northern Kentucky I/M program be continued until compliance is achieved with the 8-hour standard, the requested SIP revision could not have been lawfully approved by EPA, and the state must continue the regulation in effect.
Assuming for the moment that 40 CFR 51.905 could be construed not to mandate continuation of the I/M program, the EPA approval of the shifting of the program to the contingency category yet violated the antibacksliding provision of Section 110(l) since the state has not demonstrated that removal of the provision will not interfere with attaining the 8-hour standard. Section 110(l) of the Clean Air Act prohibits approval by the Administrator of any SIP revision that “would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.” EPA has acknowledged, in the context of the belated amendment to the Jefferson County ozone SIP, that both the 1-hour ozone standard, (with which Northern Kentucky is in attainment), and the 8-hour ozone standard, (for which Northern Kentucky’s counties are designated as “nonattainment”), are “applicable requirements” under Section 110(l). Section 110(l) is intended to prevent backsliding in progress towards maintaining or achieving attainment of healthful air quality standards.
EPA acknowleged in a May 11, 2004 letter to the Metro Louisville Air Pollution Control District that a “strict interpretation” of Section 110(l) would delay any approval of changes to SIP control measures since 110(l) would allow EPA to approve a SIP revision removing a SIP requirement only after determining through development of appropriate demonstrations that it would not interfere with applicable requirements concerning attainment and reasonable further progress. Since that attainment demonstration was not yet made, EPA indicated a belief that such a “strict interpretation is [not] necessary or appropriate” and that:
[p]rior to the time that attainment demonstrations are due for the new standards, EPA believes it is appropriate to interpret 110(l) to allow substituting equivalent emissions reductions for a control measure in the SIP. EPA believes that it would be defensible to interpret the statute as allowing such a substitution, so long as actual emissions in the air are not increased. We believe that this would represent noninterference with the obligation to demonstrate attainment of the new standards in the period prior to submission of the attainment plan. Our Office of General Counsel advises that in order to defend this interpretation, the equivalent reductions would have to represent actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated, in order to preserve the status quo level of emissions in the air. Thus, an area could not claim as substitute emissions reductions those reductions that had already occurred and achieved actual reductions in the air at a time not contemporaneous with the termination of the existing SIP control measure.”
EPA has acknowledged that a “strict” (or one might say the only plain) reading of Section 110(l) would prohibit approval of a proposed SIP revision to remove a maintenance measure adopted to maintain the 1-hour ozone SIP, until that state had undertaken the attainment demonstration for the 8-hour ozone standard and demonstrated that the elimination of the measure would not result in interference with reasonable further progress towards attainment of the standard.
KRC believes this “strict” interpretation is in fact the only interpretation of Section 110(l) that is consistent with the plain language and intent of the Act, and that removal of an approved and implemented control measure controlling both precursors of ozone and particulates, at a time when it is not known what additional reductions will be needed to attain the 8-hour ozone and fine particulates standard in the northern Kentucky airshed, is of questionable legality. Until EPA completes the guidance on what constitutes “interference” (guidance which the May 12, 2004 memo from Tom Helms to Air Program Managers indicated is under development), and until the state demonstrates that it can achieve the 8-hour standard without an I/M program, Section 110(l) prohibits removal of the control measure. What the Commonwealth has done is to remove from the limited array of measures available to meet the new standard in northern Kentucky, a currently implemented and effective control measure, without knowing what additional reductions may be needed and what control measures are available and at what cost.
Finally, even assuming that the EPA approval was lawful, KRC opposes the emergency regulation repealing 401 KAR 65:010 because the state’s action renders the former regulation and the former regulatory program unavailable, and thus inadequate to satisfy the legal requirements for contingency provisions under 42 U.S.C. 7505a(d).
A redesignation of an area from nonattainment to attainment requires, among other things, that the Administrator approve a maintenance plan for the area that meets the requirements of 42 U.S.C. 7505a. 42 U.S.C. 7407(d)(3)(E)(iv). The maintenance plan is intended to assure that the attainment status will be maintained after redesignation, and includes a requirement for “contingency” provisions “as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such provisions include a requirement that the State will implement all measures with respect to the control of the air pollutant concerned which were contained in the State implementation plan for the area before redesignation of the area as an attainment area.”
The repeal of the prior regulation, rather than the suspension of the effectiveness of the regulation or other action to suspend operation of the I/M program but to maintain the possibility for renewed operation, fails to satisfy the requirement that contingency measures be available to be implemented if the area fails to maintain attainment status. With the termination of the contract for the operation of the testing centers, and the repeal of the authorizing regulation, the state has effectively precluded the possibility that the I/M program will be available to be implemented, in direct violation of the obligation that the measures be available to be implemented in the event of a violation.
By this letter, KRC requests that EPA review the repeal of the regulation and make a determination whether the repeal is consistent with the terms of the approval of the SIP revision, and with 42 U.S.C. 7407(d)(3)(E)(iv) and 7505a(d), since the EPA action approved "the movement of the regulation underlying the Northern Kentucky inspection and maintenance (I/M) program from the regulatory portion of the Kentucky SIP to the contingency measures section of the Northern Kentucky 1-Hour Ozone Maintenance Plan[,]" but did not approve repealing the regulation entirely and eliminating the possibility that the I/M program would be available as needed, as is required by 42 U.S.C. 7505a. Thus, even if EPA acted lawfully in approving the movement of the I/M program from the regulatory portion of the 1-Hour Ozone SIP to the contingency category, the repeal of this regulation and the elimination of the testing centers and contract, violate 42 U.S.C. 7505a by making the former regulatory measure unavailable in the event of violations of the 1-hour ozone standard in the attainment area subject to the SIP.
For each of these reasons, KRC respectfully suggests that the Cabinet withdraw the emergency repealer, and, pending disposition of the review by the Sixth Circuit Court of Appeals of the underlying legality of EPA’s actions, instead suspend the effectiveness of the I/M program regulation while maintaining the possibility of immediate reinstatement of the effectiveness of the regulation if the contingency provisions are triggered by an air quality violation.
KRC also asks that EPA determine what actions need be taken or, in this case, reversed in order to preserve the I/M program infrastructure in order to satisfy the requirements of 42 U.S.C. 7505a(d).
cc: Michele Notarianni, Notarianni.firstname.lastname@example.org
David A. Carson, DOJ, David.A.Carson@usdoj.gov
John Lyons, DAQ, email@example.com