[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Rules and Regulations]
[Pages 57750-57762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19875]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R04-OAR-2004-KY-0003-200529; FRL-7979-7A]
Approval and Promulgation of Implementation Plans for Kentucky:
Inspection and Maintenance Program Removal for Northern Kentucky; New
Solvent Metal Cleaning Equipment; Commercial Motor Vehicle and Mobile
Equipment Refinishing Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving four related revisions to the Kentucky State
Implementation Plan (SIP) submitted by the Commonwealth of Kentucky on
February 9, 2005. These revisions affect the Northern Kentucky area,
which is comprised of the Kentucky Counties of Boone, Campbell, and
Kenton, and is part of the Cincinnati-Hamilton Metropolitan Statistical
Area. EPA is approving 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. EPA is
also approving revisions to a Kentucky rule which provides for the
control of volatile organic compounds (VOCs) from new solvent metal
cleaning equipment. Further, EPA is approving a new rule into the
Kentucky SIP affecting commercial motor vehicle and mobile equipment
refinishing operations in Northern Kentucky. Finally, EPA is approving
updated mobile source category emissions projections with updated,
state motor vehicle emission budgets (MVEBs) for the year 2010. This
final rule addresses comments made on EPA's proposed rulemaking
previously published for this action.
EFFECTIVE DATE: This rule will be effective November 3, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID No. R04-OAR-2004-KY-0003. All documents in
the docket are listed in the RME index at http://docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the
appropriate RME Docket identification number. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information 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 RME 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 contact 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: Michele Notarianni, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, Region 4, U.S. Environmental Protection Agency, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be
reached via telephone number at (404) 562-9031 or electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Today's Action
III. Clarifications Made in the Final SIP Submittal
IV. Responses to Comments
V. Final Action
VI. Statutory and Executive Order Reviews
[[Page 57751]]
I. Background
On April 4, 2005, EPA proposed approval of Kentucky's November 12,
2004, proposed SIP revision request, submitted for parallel processing,
to move the I/M regulations underlying the Northern Kentucky Vehicle
Emissions Testing (VET) Program to the contingency measures section of
the Kentucky SIP (70 FR 17029). In that action, EPA also proposed
approval of equivalent emissions reductions of VOCs to replace the VET
Program from two Kentucky rules. The revisions to Kentucky rule 401 KAR
59:185, ``New solvent metal cleaning equipment,'' require the use of
solvents with lower vapor pressures in batch cold cleaning machines
used in specified facilities located in the Northern Kentucky Counties
of Boone, Campbell, and Kenton. EPA also proposed to approve new rule,
401 KAR 59:760, ``Commercial Motor Vehicle and Mobile Equipment
Refinishing Operations,'' into the Kentucky SIP. This new regulation
requires the use of, and equipment training for, high efficiency
transfer application techniques at autobody repair and refinishing
operations in the Northern Kentucky Counties, and prescribes operating
procedures to minimize the emissions of VOCs. The emissions reductions
from these two rules provide compensating, equivalent emissions
reductions for the Northern Kentucky VET Program. (See the proposed
rule published April 4, 2005, at 70 FR 17029 for further background and
a detailed analysis of the proposed November 12, 2004, SIP revision.)
EPA received adverse comments on the proposed rule. Also during this
time, on February 9, 2005, Kentucky submitted a final SIP revision. In
today's action, EPA is responding to the adverse comments received,
describing the clarifications made in the final SIP revision, and
taking final action on the February 9, 2005, SIP revision.
II. Today's Action
EPA is approving revisions to the Kentucky SIP related to the
Northern Kentucky I/M program, also known as the Northern Kentucky VET
Program. Through this final action, EPA is approving the movement of
401 KAR 65:010, the Kentucky SIP regulation for the Northern Kentucky
VET Program, from the regulatory portion of the Kentucky SIP to the
contingency measures section of the Northern Kentucky 1-Hour Ozone
Maintenance Plan, which is part of the Kentucky SIP. The Northern
Kentucky VET Program regulation which is subject to today's action is:
401 KAR 65:010, ``Vehicle emission control programs.'' Also in this
final action, EPA is approving revisions to 401 KAR 59:185 and adding a
new rule, 401 KAR 59:760, to the Kentucky SIP. In addition, EPA is
responding to the adverse comments received on the April 4, 2005,
rulemaking proposing to approve the aforementioned revisions (70 FR
17029). Finally, EPA is approving updated mobile source category
emissions projections using MOBILE6.2, with updated, state MVEBs for
the year 2010, of 7.68 tons per summer day (tpsd) VOCs and 17.42 tpsd
nitrogen oxides (NOX). In this final action, EPA is also
correcting references to the former 2010 MVEBs developed using MOBILE5,
which were stated in the November 12, 2004, proposed SIP submittal and
on page 17033 of the April 4, 2005, rule (70 FR 17029), as 7.02 tpsd
VOC and 17.33 tpsd NOX. The correct numbers, as reflected in
the latest SIP revision approved by EPA published on May 30, 2003, (68
FR 32382), are 7.33 tpsd VOC and 17.13 tpsd NOX. (See also
the associated proposed rule published March 19, 2003, at 68 FR 13247
for these MVEB values.) Please note that previously the MVEBs for this
area were referred to as subarea MVEBs. EPA is now referring to
``subarea'' MVEBs which encompass the entire portion of the
nonattainment/maintenance area within one state of a multi-state area
as ``state MVEBs,'' and is reserving the ``subarea MVEB'' label for
suballocation of MVEBs for portions of
nonattainment[bs]maintenance areas that are contained
within an individual state.
III. Clarifications Made in the Final SIP Submittal
EPA's proposed approval published April 4, 2005, (70 FR 17029) was
made contingent upon Kentucky addressing the requested clarifications
in EPA's December 29, 2004, comment letter to Kentucky Division for Air
Quality (KDAQ) on the November 12, 2004, proposed SIP revision. (EPA's
December 29, 2004, letter is available in the docket for this action on
EPA's RME website, which is described in the ADDRESSES section of this
action.) The final February 9, 2005, submittal addresses these
clarifications as follows.
Because the VET Program reduces emissions of carbon monoxide (CO)
in addition to VOC and NOX, a demonstration of non-
interference with the CO National Ambient Air Quality Standard (NAAQS),
pursuant to section 110(l) of the Clean Air Act (CAA) must be provided.
The final submittal illustrates with CO values from 1991 to 2001, the
last year of available CO monitoring data, that ambient CO levels are
trending downward and have declined significantly in the area. In 2001,
ambient CO levels were 93 percent below the 1-hour maximum CO NAAQS and
80 percent below the 8-hour maximum CO NAAQS. Additionally, the
submittal notes that the Northern Kentucky area has always been
attainment for the CO NAAQS. Based on this information, EPA upholds its
preliminary determination stated in the April 4, 2005, (70 FR 17029)
proposed rule that closure of the VET Program will not interfere with
continued attainment of the CO NAAQS in the Northern Kentucky area.
The KDAQ also clarified references in Appendices B and E to the
ratio used to determine equivalency of VOC for NOX. The
references are corrected to read as ``VOC/NOX'' ratio, which
is correctly defined in the four-asterisk footnote in Appendix E and in
Appendix B as the total VOC emissions divided by the total
NOX emissions from all source categories in the area.
KDAQ also modified Section 3, ``Operating requirements,'' of 401
KAR 59:760, which formerly used language which mirrored that of the
Ozone Transport Commission model rule. EPA explains in its December 29,
2004, comment letter to KDAQ that to be consistent with current Agency
policy, this language needed to be revised to include some form of
public review for determining other coating application methods which
achieve emissions reductions equivalent to high volume low pressure
(HVLP) or electrostatic spray application methods. The final version of
401 KAR 59:760 institutes public review by requiring in Section 3(1)(k)
that the Kentucky Environmental and Public Protection Cabinet (Cabinet)
hold a public hearing on submitted demonstrations of equivalent coating
application methods and submit the demonstrations to EPA for approval.
Other items clarified by KDAQ in the final SIP package include
making consistent references to the requested effective date to end the
VET Program, and specifying the regulation underlying the VET Program
to be moved from the regulatory portion of the Kentucky SIP to the
contingency measures list. In its February 9, 2005, final SIP
submittal, the Commonwealth of Kentucky proposed an effective date of
March 31, 2005, for the repeal of 401 KAR 63:010 ``Vehicle Emissions
Control Programs.'' EPA clarifies that the correct regulation citation
is 401 KAR 65:010. Also, EPA affirms that the effective date for the
repeal of this regulation can be no earlier than the effective date of
this
[[Page 57752]]
final action. (See Response 6 of Section IV below.)
IV. Responses to Comments
The following is a summary of the adverse comments received on the
proposed rule published April 4, 2005, at 70 FR 17029 and EPA's
responses to these comments.
Comment 1: The commenter states that EPA's Final Rule to Implement
the 8-Hour Ozone National Ambient Air Quality Standard--Phase I,
published April 15, 2004, specifically prohibits the shifting of the I/
M program for Northern Kentucky into the contingency category at this
time. The commenter cites 40 CFR 51.905(a)(2) as applicable to the
Northern Kentucky area because the area is maintenance for the 1-hour
ozone NAAQS and nonattainment for the 8-hour ozone NAAQS. A few
commenters noted that under EPA's 8-hour ozone anti-backsliding
provisions, 1-hour ozone maintenance measures not needed under the
area's 8-hour ozone classification must be continued unless shifted to
the contingency category before designation as 8-hour ozone
nonattainment. The commenters also note that the exception provided in
40 CFR 51.905(b) allows an applicable requirement to be shifted to a
contingency measure for an area like Northern Kentucky once the area
attains the 8-hour ozone standard, which is currently not the case for
the Northern Kentucky area. Another commenter asserts that allowing
states to move basic I/M programs to a contingency measure while they
are nonattainment for the 8-hour ozone NAAQS conflicts with section
172(e) of the Act, and with the stated rationale and intent underlying
EPA's anti-backsliding rule on pages 69 FR 23970 and 69 FR 23977
published April 30, 2004.
Response 1: EPA clarifies that the publication date of the Final
Rule to Implement the 8-Hour Ozone National Ambient Air Quality
Standard--Phase I was April 30, 2004 (69 FR 23951). EPA concurs that 40
CFR 51.905(a)(2) is applicable to the Northern Kentucky area because
the area is maintenance for the 1-hour ozone standard and nonattainment
for the 8-hour ozone standard, and that I/M programs are listed in 40
CFR 51.900(f)(2) as an applicable requirement at the time of the area's
nonattainment designation for the 8-hour ozone NAAQS. EPA also affirms
that 40 CFR 51.905(b) requires that an area remains subject to
obligations at the time of designation to 8-hour ozone nonattainment
until the area attains the 8-hour ozone NAAQS, at which time the State
may request such obligations to be shifted to contingency measures,
consistent with sections 110(l) and 193 of the CAA. (See 40 CFR
51.905(b).) The provisions of 40 CFR 51.905(b) allow movement of
certain obligations to the contingency measures portion of the SIP
because the area has shown it does not need these obligations or
control measures to meet the 8-hour ozone NAAQS.
While the Northern Kentucky area remains subject to 40 CFR
51.905(b), this action to replace the Northern Kentucky VET Program
emissions reductions with other control measures fully satisfies the
requirements of 40 CFR 51.905(b). Initially, as described in detail in
the response to the next comment (i.e., Response 2), this action
approves revisions to an I/M regulation subject to the provisions of 40
CFR 51.372(c), which describes approvable I/M requirements for areas
seeking redesignation. Thus, the Northern Kentucky area remains subject
to the applicable requirement for an I/M program and will satisfy the
requirements of 40 CFR 51.905(b) through the regulatory revisions
approved today. This action approves compensating emissions reductions
to replace the VET Program which are contemporaneous to the Program's
closing to ensure no net change to the air quality in the area at a
time when it is not known what control measures are needed for the
Northern Kentucky area to attain the 8-hour ozone NAAQS. In addition to
the provisions of 40 CFR 51.372(c) discussed below in Response 2, this
action also differs from other cases involving 40 CFR 51.905(b) because
the VET Program emissions of VOC and NOX are being replaced
with compensating emissions reductions to ensure under section 110(l)
of the CAA that doing so will not interfere with any applicable
requirement of the CAA, including attainment or maintenance of the
NAAQS. (See Response 2 below and the May 11, 2004, letter from EPA to
the Louisville Metro Air Pollution Control District available in the
docket for this action.)
Concerns raised regarding section 172(e) of the CAA are not
applicable to the 8-hour ozone NAAQS since EPA strengthened the ozone
NAAQS and made it more protective of public health by replacing the 1-
hour ozone standard with the 8-hour ozone standard. The CAA section
172(e) applies in cases where the EPA relaxes a primary NAAQS.
Comment 2a: The commenters challenge the EPA's interpretation of 40
CFR 51.372(c) described in a May 12, 2004, EPA memorandum from Tom
Helms and Leila Cook to all Air Program Managers at EPA on ``1-Hour
Ozone Maintenance Plans Containing Basic I/M Programs.'' One commenter
believes that the memorandum creates a new, unfounded exception to the
anti-backsliding provisions promulgated April 15, 2004, in 40 CFR
51.905 based on provisions found in 40 CFR 51.372(c) that were
published January 5, 1995 (60 FR 1735). This commenter states that
whatever flexibility might have existed by rulemaking in 1995 was
constrained in the 2004 rule, which limits the flexibility to shift an
applicable requirement to the contingency category by requiring that
first an area attain the 8-hour ozone standard.
Response 2a: EPA disagrees with the commenters' allegations that
the May 12, 2004, memorandum created a new exception to the anti-
backsliding provisions of 40 CFR 51.905. As the memorandum points out,
section 51.905 of the anti-backsliding regulations provides only that
applicable requirements must be maintained until an area attains the 8-
hour ozone standard. In the preamble to those regulations, EPA clearly
stated that so long as the statutory requirements for an applicable
requirement were met, a State was free to change the details of a state
program from those that applied in the SIP on the date that a
requirement was determined to be applicable. See 69 FR 23972, 1st col.
The May 12, 2004, letter simply points out that in order for basic I/M
areas to qualify for redesignation, the statutory requirement to submit
a basic I/M SIP can be satisfied through a submission of the
legislative authority to develop an I/M program, along with a
commitment to adopt or consider adopting regulations to implement an I/
M program as a contingency measure should the need arise, and a
schedule for program adoption if necessary. It is true that another
section of the preamble to the anti-backsliding regulations indicates
that in general, applicable requirements should not be transferred to
contingency measures until the area attains the 8-hour standard.
However, the May 12, 2004, letter clarifies that in light of the
existing redesignation rules for basic I/M areas which allow such areas
to satisfy the applicable requirement for an I/M program through
compliance with section 51.372(c), moving the basic I/M program to a
contingency measure coupled with the legislative authority to adopt a
regulatory program, constitutes compliance with the applicable basic I/
M requirement.
EPA also clarifies that the promulgation date into the Code of
Federal Regulations of the anti-backsliding provisions contained in
EPA's Final Rule to Implement the 8-
[[Page 57753]]
Hour Ozone National Ambient Air Quality Standard--Phase I was June 15,
2004, as indicated in the final rule published April 30, 2004 (69 FR
23951). This final rule was signed by the EPA Administrator April 15,
2004.
Comment 2b: Another commenter declares that what matters for anti-
backsliding purposes for the transition from the 1-hour to the 8-hour
ozone NAAQS is the area's I/M obligations at the time of the 8-hour
nonattainment designation. A commenter indicates that 40 CFR 51.372(c)
relates to 1-hour redesignation requests prior to the development of
the 8-hour ozone rule, and states that 40 CFR 51.372(c) does not
address the applicability of control measures where the ozone NAAQS is
tightened and an area is redesignated under the new, more stringent
ozone standard.
Response 2b: Although it is true that the determination of which
requirements remain applicable is determined based upon the area's 1-
hour ozone designation and classification at the time the area is
designated for the 8-hour ozone standard, as noted above, areas remain
free to change their programs as desired so long as they continue to
meet the applicable requirement until they attain the 8-hour ozone
standard. In issuing the May 12, 2004, letter, EPA had concluded that
nothing in the anti-backsliding regulations indicated that areas were
prohibited from meeting applicable requirements with programs that were
appropriate based upon a future change to their 1-hour attainment
status. Section 51.372(c) by its own terms applies to any area
otherwise eligible for redesignation and nothing in the provision
indicates that it should not apply to areas that may also be designated
nonattainment for another standard. Of course, such areas must meet
whatever I/M provisions would apply based on their 8-hour ozone
classification, so that some areas may not be able to take advantage of
the I/M redesignation rules if they must also submit basic I/M programs
under their 8-hour ozone classification. This is not the case for the
Northern Kentucky area. Finally, the Northern Kentucky area is not
seeking redesignation under the 8-hour standard so the issue of whether
section 51.372(c) might apply in such cases does not arise in this
rulemaking, although EPA believes that it would continue to apply.
Comment 2c: In addition, the commenters believe that 40 CFR
51.372(c) is a questionable interpretation of the CAA, and that
application to this proposed SIP revision is legally unfounded. One
commenter specifically purports that 40 CFR 51.372(c) violates the Act
and is therefore, illegal.
Response 2c: The commenter appears to be attempting to challenge
the provisions of section 51.372(c), to which challenges were required
to be brought within 60 days of EPA's final action adopting such
regulations, and no such challenges were ever brought. Thus, as no one
challenged these regulations when they were initially promulgated, the
provisions have been the governing law since 1995. Since, as noted
above, EPA clearly indicated in the anti-backsliding regulations that
any program which satisfied the requirements for an applicable
requirement would be satisfactory, these provisions describe a valid
means of satisfying the applicable basic I/M requirement in areas
eligible for redesignation under the anti-backsliding regulations.
Comment 2d: Another commenter questions EPA's interpretation since
40 CFR 51.372(c) created a distinction without basis concerning the
requirement for a basic I/M program based on whether an area was in
attainment or nonattainment for the 1-hour ozone standard, even though
the CAA makes no such distinction. This commenter cites the 1990 CAA
Amendments, section 182.
Response 2d: As noted above, it is too late to challenge the
provisions of 40 CFR 51.372(c), however, EPA believes the regulation
constituted a proper interpretation of the statutory provisions of CAA
section 182(b)(4). The rationale behind the I/M redesignation rule
rested on the specific language in section 182(b)(4) requiring
provisions to provide for a basic I/M program and EPA's interpretation
that states otherwise eligible for redesignation could meet the
obligation to provide such provisions through legislative authority
coupled with a commitment and schedule to develop contingency measures
as needed. In that respect, the regulation did consider the attainment
status of the area, as EPA determined that only in areas eligible for
redesignation could the obligation to develop provisions to provide for
a basic I/M program be satisfied without an adopted regulatory program.
Comment 3: The commenters believe that only the ``strict''
interpretation of section 110(l) of the CAA explained in a May 11,
2004, letter from the EPA to the Louisville Metro Air Pollution Control
District, and in the proposed action published January 3, 2005, at 70
FR 57, is valid. Until EPA completes the guidance on what constitutes
``interference'' under section 110(l) of the Act, the commenters
question how the EPA could defend a finding of ``non-interference.''
One commenter asserts that EPA's reasoning is considered unlawful and
arbitrary, noting that EPA has re-written the law as it applies to non-
interference and in doing so, has used the transition from the 1-hour
to the 8-hour ozone NAAQS as a basis for weakening air quality
standards. Another commenter states that prior to removing the I/M
program from the array of available control measures, the attainment
demonstration for the new 8-hour ozone and fine particulate matter
(PM2.5) NAAQS should first be developed and the I/M program be shown to
be truly surplus to those measures (either in place or to be adopted)
needed to meet and maintain these NAAQS. The commenters state that
removing the I/M program prior to these attainment demonstrations is of
questionable legality; the attainment demonstrations are needed to show
noninterference with section 110(l) of the CAA.
Response 3: The Northern Kentucky area is designated nonattainment
for the 8-hour ozone and PM2.5 NAAQS. Control strategy SIP revisions
showing how the area will attain these NAAQS are due June 15, 2007, for
the 8-hour ozone standard and April 5, 2008, for the PM2.5 standard,
unless the area attains the standards prior to these due dates. These
control strategy SIPs will identify the control measures that will be
used to help the area attain the NAAQS. The control measures will be
selected by the Commonwealth of Kentucky after public notice and
comment.
In a letter dated May 11, 2004, from EPA to Louisville's Assistant
County Attorney, EPA provided its interpretation of section 110(l) of
the CAA as guidance in relation to an area such as Northern Kentucky
that does not yet have an attainment demonstration for the 8-hour ozone
nor for the PM2.5 NAAQS. Prior to the time when the control strategy
SIP revisions are due, to demonstrate no interference with any
applicable NAAQS or requirement of the CAA under section 110(l), EPA
has interpreted this section such that States can substitute equivalent
(or greater) emissions reductions to compensate for the control measure
being moved from the regulatory portion of the SIP to the contingency
provisions. As long as actual emissions in the air are not increased,
EPA believes that equivalent (or greater) emissions reductions will be
acceptable to demonstrate non-interference. EPA does not believe that
areas must wait to produce a complete
[[Page 57754]]
attainment demonstration to make any revisions to the SIP, provided the
status quo air quality is preserved. EPA believes this will not
interfere with an area's ability to develop a timely attainment
demonstration. This interpretation has been applied in another
rulemaking after undergoing public notice and comment. (May 18, 2005,
at 70 FR 28429.)
As an acceptable means to demonstrate no interference in order to
satisfy section 110(l) of the CAA, the submittal provides for
equivalent emissions reductions from two Kentucky rules in the form of
VOCs to replace the NOX and VOC emissions reductions
previously gained from the VET Program to ensure actual emissions in
the air are not increased pending development of a complete attainment
demonstration for the new 8-hour ozone and PM 2.5 standards. (For
further information on EPA's analysis of equivalency, see proposed rule
published April 4, 2005, at 70 FR 17029.) Even if the area ultimately
determines that an I/M program should be re-instituted as part of those
future attainment demonstrations, since air quality has not been
adversely affected in the interim, EPA believes that section 110(l)
will be satisfied.
Comment 4: A commenter writes that it is not enough to be in
attainment. We must strive for optimum performance until we are way
under the thresholds of attainment. The commenter suggests that all
methods of accomplishing cleaner air that are cheap and easy be
maintained.
Response 4: EPA acknowledges this comment and notes that except for
required control measures pursuant to the CAA based upon a
nonattainment area's classification, states have the option to
establish additional control measures beyond those required by Federal
law. In addition, the Agency supports numerous regulatory and voluntary
federal programs to reduce and prevent air emissions that complement
existing control strategies to bring an area into attainment. However,
the CAA does not require states to implement measures beyond those
needed for attainment or maintenance of the NAAQS.
Comment 5: A commenter states that both a plain reading of the CAA
section 110(l) and the Commonwealth of Kentucky Senate Joint Resolution
(SJR) 3 Section 4 appear to require that the Cabinet first determine
whether the I/M program will be necessary for achievement of the 8-hour
ozone standard prior to approval of removal of the measure from the
current SIP. Whether the VET Program is ``necessary'' as defined in
Section 4 of SJR 3 requires that the Cabinet undertake an attainment
demonstration to determine both the necessity and availability of
additional control measures to achieve the newer 8-hour ozone standard.
Response 5: The comment that an attainment demonstration is
required to address section 110(l) of the CAA is addressed in this
action under Response 3. Interpretation and enforcement of state
legislation and other state legal requirements such as Kentucky SJR 3
is not in EPA's purview in the first instance. The Kentucky Natural
Resources and Environmental and Public Protection Cabinet addresses the
comment regarding SJR3 in the February 9, 2005, SIP submittal under
Response 9(b) of Appendix G, ``Response to Comments Received During
Public Comment Period.'' The Cabinet states it does not agree with the
comment, and does not read SJR 3 to indicate that the Cabinet must
determine if the I/M program will be necessary to achieve the 8-hour
ozone NAAQS prior to removal of the program from the current SIP. EPA
agrees with the Commonwealth's conclusions on this matter.
Comment 6: The commenter notes that unless and until the EPA
approves a revision to the Kentucky SIP to remove the VET Program, the
SIP, including the VET Program, must continue to be maintained and
enforced as a matter of federal law.
Response 6: EPA concurs with this comment, and affirms that the VET
Program in Northern Kentucky must remain in operation up until the
effective date of this final action.
Comment 7: The commenter asserts that even if there was legal
justification for moving an I/M program to a contingency measure, a
State must maintain the legal authority to implement an I/M program as
a prerequisite to redesignation to attainment for the 1-hour ozone
NAAQS and as an anti-backsliding requirement. The commenter cites 40
CFR 51.372(c) and a portion of section 175A(d) of the Act.
Response 7: The Commonwealth of Kentucky maintains the legal
authority to adopt implementing regulations for a basic I/M program
without requiring further legislation as required pursuant to 40 CFR
51.372(c)(1). In a letter dated June 14, 2005, from John G. Horne, II,
General Counsel of the KDAQ, to Kay Prince of the EPA, KDAQ confirms
and clarifies that this statutory authority is maintained in Kentucky
Revised Statues 224.20-710 through 224.20-765. (The June 14, 2005,
letter is in the RME docket for this action.)
Comment 8: The commenter asserts that the proposed emissions
reductions from the current form of 401 KAR 59:185 are not new or
surplus because of testimony that the anticipated compliance with the
rule has already been achieved to some extent prior to the rule's
adoption when the area was nonattainment (for the 1-hour ozone NAAQS).
Response 8: The proposed revisions to 401 KAR 59:185, ``New solvent
metal cleaning equipment,'' garner additional emissions reductions
beyond those gained from the regulation as it was approved into the
Kentucky SIP on June 23, 1994 (59 FR 32343). In the February 9, 2005,
submittal, Kentucky presents data showing that in 2005, 0.71 tpsd of
VOC is projected to be reduced through these revisions to 401 KAR
59:185.
The proposed revisions that EPA is approving in this action
establish a vapor pressure limit for solvents used in cold cleaning
degreasing operations in the Northern Kentucky Counties of Boone,
Campbell, and Kenton. Section 4(3)(a) of the regulation requires that
vendors provide, in these counties only, solvents with a vapor pressure
at or below one millimeter of mercury measured at 20 degrees Celsius
for solvents sold in units greater than five gallons for use in cold
cleaners. Section 4(3)(b) prohibits, in the Northern Kentucky counties,
operations of a cold cleaner using a solvent exceeding the vapor
pressure limit described for Section 4(3)(a). In addition, Section 4(4)
of the regulation requires users to keep records of their solvent
purchases. Section 4(2) is revised to include additional operating
requirements to minimize VOC emissions.
The revisions contained in the February 9, 2005, submittal became
state effective January 4, 2005. No record was found of public
testimony in Appendix G of the submittal to suggest that applicable
facilities in Boone, Campbell, and Kenton Counties voluntarily followed
a lower vapor pressure limit such as the one prescribed in Section
4(3)(a) during the time Northern Kentucky was nonattainment for the 1-
hour ozone NAAQS.
Comment 9: The commenter states that there has been no inventory
provided to the public for review of facilities that are actually
currently using solvent-based degreasing processes, whether those
facilities are operating at higher vapor pressures, nor of facilities
selling such solvents for use by facilities in the area. The commenter
also asserts that the following is missing from the SIP submittal
documentation: any detail on the number of sources, the
[[Page 57755]]
number of gallons of cold solvent used in the processes for the
sources, and which sources are currently using the storage, use, and
recovery procedures required by the regulation, and how long those
procedures have been in use.
Response 9: Appendix E of the February 9, 2005, submittal lists,
for 2005, a projected amount of 1.34 tpsd VOC emissions from facilities
with cold cleaning degreasing operations in Northern Kentucky. This
2005 emissions projection is based on actual 1996 emission inventory
data from the 1-hour ozone maintenance plan for the area, which was
approved by EPA into Kentucky's SIP effective August 30, 2002. (See 67
FR 49600, July 31, 2002.) KDAQ used 1996 emission inventory data
because 1996 is the year used for the Northern Kentucky area to
demonstrate attainment for the 1-hour ozone NAAQS. Kentucky used
emissions factors and methodologies from the May 1991 EPA document,
Procedures for the Preparation of Emission Inventories for Carbon
Monoxide and Precursors of Ozone, EPA-450/4-91-016. (This document is
accessible in RME under the same docket ID number for this action.)
EPA's Consolidated Emissions Reporting Rule (CERR), published June
10, 2002, at 67 FR 39602, requires emissions inventories for area
sources, such as cold cleaning degreasing operations, statewide every
three years, beginning in 2002. The 2005 inventory is due 17 months
after the end of the 2005 calendar year, i.e., June 1, 2007. These
emissions inventories of area sources are required to be based on
emissions factors and growth projections in accordance with EPA
guidance. The detailed data suggested by the commenter to be provided
for each affected source is not required for the purpose of this SIP
revision nor to satisfy EPA's emissions inventory reporting
requirements in the CERR for this type of source. In the February 9,
2005, submittal, Kentucky appropriately applied EPA-approved rule
effectiveness and control efficiency factors which reflect the level of
emissions reductions expected from this type of rule to estimate the
VOC emissions reductions from the revisions to 401 KAR 59:185. EPA has
determined that Kentucky's emissions projection methodology is
consistent with EPA guidance. (For EPA's complete analysis of the
methodology, see proposed rule at 70 FR 17029, April 4, 2005.)
Comment 10: The commenter challenges the reliance on an emission
reduction rate of 67 percent for the amendments to 401 KAR 59:185,
based on the rate applied in the rulemakings approved for Illinois,
Indiana and Maryland's cold cleaning degreasing regulations. The
commenter states that the same 67 percent factor may not be appropriate
for Kentucky's regulation due to differing regulatory obligations from
the other states. The commenter notes that Maryland's regulation
appears to prohibit sales of solvents with vapor pressures higher than
one millimeter of mercury in all sizes, yet Kentucky prohibits only
sales of such solvents in units larger than five gallons. The commenter
writes that EPA has incorporated the 67 percent figure by reference
without including into the docket for review any of the supporting
documentation justifying the choice of emissions factor.
Response 10: In the February 9, 2005, SIP package, KDAQ explains
that a 67 percent control efficiency factor was applied to estimate the
amount of VOC emissions reductions expected from the revisions made to
401 KAR 59:185. KDAQ notes that this 67 percent control efficiency was
also used by the States of Maryland, Indiana, and Illinois in similar
regulations addressing cold cleaning degreasing operations. The Agency
approved these regulations into the SIPs for these States.
To evaluate the applicability of the 67 percent control efficiency
factor to the revisions to 401 KAR 59:185, the Agency reviewed the
March 31, 2001, document titled, ``Control Measure Development Support
Analysis of Ozone Transport Commission Model Rules,'' prepared for the
Ozone Transport Commission (OTC) by E.H. Pechan & Associates, Inc. (A
copy of this document is now available in the docket for this action.)
Chapter II.F., ``Solvent Cleaning Operations Rule,'' highlights
elements of the OTC model rule for this source category, including a
vapor pressure limit of one millimeter of mercury. Additionally,
Chapter II.F. notes that cold cleaner solvent volatility provisions are
based on regulatory programs in place in several States, including
Maryland and Illinois. An incremental control effectiveness of 66
percent was estimated for the OTC model rule, which reflects a previous
estimate made by the State of Maryland and claimed in the Maryland SIP,
and an assessment of the impacts of lower vapor pressure limits in
reducing the use of petroleum distillate solvents. Chapter II.F. states
on page 20 that 66 percent appears to be a reasonable estimate for an
overall control efficiency for the model rule. The Agency notes as
additional assurance for reliance on the 67 percent factor, the actual
effectiveness of the rule revisions may be assessed by reviewing future
year actual emissions inventories.
Regarding the commenter's concerns on sale of cold cleaning
solvent, EPA notes that the March 31, 2001, document estimates rule
penetration and rule effectiveness at 100 percent for this source
category because there are a small number of firms that supply the
affected solvents, and thus, a high level of compliance is expected.
KDAQ applied a more conservative rule effectiveness value of 80 percent
for the revisions to 401 KAR 59:185 that is consistent with Agency
policy. (For more detail on rule effectiveness, see the April 4, 2005,
proposed rule at 70 FR 17029.)
EPA has evaluated the consistency of the revisions to 401 KAR
59:185 regarding the solvent vapor pressure limit and operating
requirements with the OTC model rule and has determined that the
revisions (described in Response 8 above) are consistent with the OTC
model rule. Further, the Agency believes that it is reasonable that
Kentucky would get comparable emissions reductions from a one
millimeter of mercury vapor pressure restriction for cold cleaning
solvents as other States which have adopted such a vapor pressure
restriction.
Regarding the comment that Kentucky's regulation restricts the sale
of solvents with a vapor pressure that exceeds one millimeter of
mercury to units greater than five gallons for use in cold cleaners,
while Maryland applies the prohibition to sales of all sizes, it
appears reasonable that industrial users would buy solvents in larger
quantities. Furthermore, 401 KAR 59:185 also prohibits in the Northern
Kentucky Counties the operation of cold cleaners using a solvent with a
vapor pressure that exceeds one millimeter of mercury at 20 degrees
Celsius. Thus, regardless whether cold cleaner solvents which exceed
this vapor pressure limit may be purchased in units less than or equal
to five gallons, no exemption is provided in Kentucky's regulation to
allow use of solvents with vapor pressures exceeding one millimeter of
mercury at 20 degrees Celsius in cold cleaners operated in the Northern
Kentucky Counties.
Comment 11: The commenter writes that the proposed amendments to
401 KAR 59:185 lack enforceability because the Cabinet has not adopted
a permitting or licensing process for the affected facilities, nor has
any indication been given of the resources needed to inspect these
facilities.
Response 11: According to the provisions of Section 4(4) of 401 KAR
59:185, records of solvent sales and solvent purchases must be
maintained
[[Page 57756]]
for a minimum of five years by affected sources. A permitting or
licensing process for the affected facilities in Northern Kentucky is
not required to implement the rule revisions according to any federal
permitting programs unless an affected source otherwise falls within
federal permitting thresholds. Similarly, affected facilities may be
required to obtain a permit if they meet any existing state or local
permitting thresholds.
As noted under Response 21(b) of Appendix G of the February 9,
2005, submittal, KDAQ plans to enforce the regulation through on-site
inspections. EPA regularly conducts audits of states' compliance and
enforcement programs to ensure that these programs are adequate. EPA's
most recent program evaluation of KDAQ's compliance and enforcement
program was conducted in FY 2000. (EPA's 2000 evaluation is included in
the docket for this action.) Based upon the findings of this program
evaluation, EPA has determined that Kentucky maintains the necessary
resources to enforce the SIP pursuant to section 110(a)(2)(C) of the
CAA. Kentucky is not required to detail the resources needed for the
Commonwealth to inspect the affected facilities subject to 401 KAR
59:185. EPA has reviewed the revisions to 401 KAR 59:185 and believes
that these provisions are practicably enforceable, i.e., they are
clearly written such that compliance can easily be determined.
Comment 12: The commenter asserts that no offsetting reductions for
ending the VET Program at the end of 2004 are provided by the
amendments to 401 KAR 59:185 because compliance with the new vapor
pressure limits will not be required until December 15, 2007, for
sources that become subject to the regulation.
Response 12: EPA first clarifies that the VET Program cannot be
ended until on or after the effective date of this final action. (See
Response 6.) In its February 9, 2005, final SIP submittal, the
Commonwealth of Kentucky proposed an effective date of March 31, 2005,
for the repeal of 401 KAR 65:010 ``Vehicle Emissions Control
Programs.'' However, it is EPA's understanding that KDAQ will not
terminate the VET Program's operation until EPA approves the SIP
revision, pursuant to Section 3 of SJR 3, that moves 401 KAR 65:010 to
a contingency measure in the SIP. (To view SJR 3, see Appendix A of the
February 9, 2005, SIP submittal.)
Section 7(2)(f) of 401 KAR 59:185 provides that final compliance
for facilities located in a county previously designated nonattainment
or redesignated in 401 KAR 51:010 after June 15, 2004, may be extended
until December 15, 2007. The comment pertaining to the December 2007
compliance date is not relevant for two reasons. First, KDAQ has
reiterated that such an extension would not be automatic and will be
issued on a case-by-case basis. (See KDAQ response under Item 23 of
Appendix G in the February 9, 2005, submittal.) Second, KDAQ confirmed
in a December 29, 2004, e-mail to EPA that Section 7(2)(f) does not
apply to facilities that now become subject to 401 KAR 59:185 due to
their cold cleaning operations and their location in Boone, Campbell,
and Kenton Counties. (This document is accessible in RME under the same
docket ID number for this action.)
The compliance date for the affected Northern Kentucky facilities
subject to the revisions to 401 KAR 59:185 which are prohibited from
selling and using solvents as specified in Section 4(3) is 60 days
after the effective date of the regulation, which is January 4, 2005.
EPA also clarifies that the correct effective date is January 4, 2005,
not December 8, 2004, as stated in the December 29, 2004, e-mail from
KDAQ to EPA.
Comment 13: The commenter states that EPA, in its August 31, 2004,
letter, provided no comments concerning the adoption of 401 KAR 59:185
or whether the proposed reductions would be considered acceptable to
offset, in part, the loss of the VET program, and whether the
reductions would satisfy section 110(l). The commenter writes that it
is assumed EPA will provide such comments during the formal federal
review process, since EPA will be obligated to respond to these and
other comments in determining whether to approve the state submittal.
The commenter cites 5 U.S.C. 553.
Response 13: The Agency affirmed in a August 31, 2004, letter from
EPA to KDAQ that the EPA had no comments on the proposed revisions to
401 KAR 59:185, nor on Kentucky's analysis predicting 0.71 tpsd VOC
from the proposed changes to 401 KAR 59:185. While not expressly stated
in the letter, the Agency conducted a thorough review of the proposed
revisions prior to issuing the August 31, 2004, letter confirming that
the Agency had no further suggested changes to the proposed revisions
out for public comment in Kentucky. Further, EPA's April 4, 2005,
rulemaking (70 FR 17029) proposing to approve these emissions
reductions indicates that the Agency has determined these reductions
satisfy section 110(l) of the CAA. (A copy of the August 31, 2004,
letter is provided in the docket for this action.)
Comment 14: A commenter states that the proposal must also
demonstrate through appropriate modeling that the substitution of
amendments to 401 KAR 59:185 and new rule 401 KAR 59:760 which seek to
control VOCs and to substitute those reductions for the lost VOC and
NOX controls from the VET Program, will result in equivalent
reductions in ozone formation.
Response 14: Modeling is not required to demonstrate equivalency of
the VOC emissions reductions from 401 KAR 59:185 and 401 KAR 59:760. As
discussed in the April 4, 2005, proposed rule on pages 70 FR 17034 and
70 FR 17035, this equivalency demonstration was performed in accordance
with EPA guidance documents as described in Section IV.B.2.b.,
``Methodology for substituting VOC for NOX to determine all
`VOC-equivalent' needed to replace the VET Program.'' One of these
guidance documents is EPA's December 1993 NOX Substitution
guidance, which was written for purposes of reasonable further progress
requirements under the CAA section 182(c)(2)(B) and equivalency
demonstration requirements under the CAA section 182(c)(2)(C) for
serious 1-hour ozone nonattainment areas. As stated in this guidance on
page 2, section 182(c) of the CAA requires a demonstration of
attainment with gridded photochemical modeling for 1-hour ozone
nonattainment areas classified serious or above under the CAA Title I,
part D, subpart 2. Thus, since Northern Kentucky is not a subpart 2
serious or above area, this type of modeling as part of their
equivalency demonstration is not required.
The equivalency demonstration in the February 9, 2005, submittal is
to satisfy the CAA section 110(l) demonstration for the 8-hour ozone
and PM2.5 NAAQS. The Northern Kentucky area (i.e., Boone, Campbell, and
Kenton Counties) is designated a basic 8-hour ozone nonattainment area
under the CAA title I, part D, subpart 1, and consequently an
attainment demonstration with modeling is required to be submitted by
June 15, 2007. By applying the December 1993 guidance to the 8-hour
ozone NAAQS, which did not exist in 1993, a basic subpart 1 8-hour
ozone nonattainment area is not required to model for equivalency
demonstrations, similar to 1-hour ozone nonattainment areas classified
under subpart 1. EPA concludes that until the modeled 8-hour ozone
attainment demonstration is due, Kentucky can meet 110(l) by providing
equivalent emissions reductions such that ambient air quality levels
remain the same, and thus no emissions
[[Page 57757]]
increase will result that could interfere with plans to develop timely
attainment demonstrations.
Comment 15: The commenter writes that 401 KAR 59:760 lacks
enforceability because the Cabinet has not adopted a permitting or
licensing process for the affected facilities, nor has an explanation
been given of the resources needed to conduct compliance inspections of
the affected facilities.
Response 15: According to the provisions of Section 5 of 401 KAR
59:760, sources subject to the regulation shall submit documentation to
KDAQ sufficient to substantiate that high efficiency transfer
application techniques of coatings are in use at these facilities. This
documentation must also verify that all employees applying coatings are
properly trained in the use of a HVLP sprayer or equivalent
application, and the handling of a regulated coating and any solvents
used to clean the sprayer.
A permitting or licensing process for these affected sources is not
required to implement 401 KAR 59:760 according to any federal
permitting programs unless an affected source otherwise falls within
federal permitting thresholds. Similarly, affected facilities may be
required to obtain a permit if they meet any existing state or local
permitting thresholds.
As noted under Response 27(b) of Appendix G of the February 9,
2005, submittal, KDAQ plans to enforce the regulation through on-site
inspections. As explained in Response 11 of this action, Kentucky has
previously demonstrated that it maintains the necessary resources to
enforce the SIP pursuant to section 110(a)(2)(C) of the CAA and is thus
not required to detail the resources needed for the Commonwealth to
inspect the affected facilities subject to 401 KAR 59:760. EPA has
reviewed 401 KAR 59:760 and believes that these provisions are
practicably enforceable.
Comment 16: Several commenters state that high transfer efficiency
spray gun technology for mobile equipment refinishing operations has
been in use in Northern Kentucky for a number of years, and that shop
owners with this technology have been using it in accordance with
manufacturers' recommendations. The commenters reference a number of
sources for this assertion, including: testimony provided at Kentucky's
public hearing, a May 2005 automotive paint survey, and 401 KAR 59:760
Compliance Forms reflecting training information for HVLP spray gun
operators. One commenter states that the May 2005 automotive paint
survey indicated that 89 percent of the 38 sources (i.e., 34 of 38)
surveyed were using high transfer efficiency spray guns, and that 98
percent of these sources had been using high transfer efficiency paint
spray guns for over one year, and thus, the emissions reductions cannot
be claimed as contemporaneous. This commenter also asserts that based
on 401 KAR 59:760 Compliance Forms for 26 facilities in Northern
Kentucky, the training for many of the HVLP spray gun operators (and
presumably the adoption of HVLP at the facility) occurred, in many
cases, years before adoption of 401 KAR 59:760 and before the end date
of the Northern Kentucky VET Program.
Response 16: KDAQ indicates in Response 38(b) located in Appendix G
of the February 9, 2005, submittal that requiring use of HVLP or
equivalent coating application equipment, training on proper use of
this equipment, and work practice standards will reduce VOC emissions
from all subject facilities in the Northern Kentucky area. KDAQ
estimates there are approximately 150 potentially impacted sources in
the Northern Kentucky area.
The survey referenced and submitted by the commenters was performed
by Market Research Services, Inc. (MRSI) dated May 2005. The commenters
provided two sets of materials, a power point presentation and a
database printout, which summarize answers to four questions. The
questions ask whether the facility is currently using a high transfer
efficiency paint spray gun, the length of time using a high transfer
efficiency paint spray gun, whether the facility follows manufacturers'
recommended instructions for using HVLP nozzles, and whether the
facility is saving money in paint costs. The results indicate 34 of the
38 sources surveyed in an unspecified geographic area use high transfer
efficiency spray guns and 100 percent of these 34 sources follow
manufacturers' recommended instructions. The survey shows of these 34
facilities, high transfer efficiency spray guns have been in use by 21
facilities for five or more years, eight facilities for three to four
years, and four facilities for one to two years.
Although one of the commenters submitted materials stating that the
data relates to the current use of HVLP spray nozzles in the Kentucky
Counties of Boone, Campbell, and Kenton, the survey materials submitted
do not indicate the survey area. While the database printout includes
the words ``Cincinnati, Ohio'' as part of the descriptor title, it is
unclear what the relationship of Cincinnati is to the survey results.
For example, Cincinnati may be the location for MRSI or the sources
surveyed could be located in Cincinnati. Further, it remains unclear
whether any of the 38 facilities surveyed are located in Boone,
Campbell, or Kenton County. These counties are part of the Cincinnati-
Hamilton Metropolitan Statistical Area (MSA), but located in Kentucky
outside of the City of Cincinnati. Even if all 38 facilities are
located in Northern Kentucky, the survey results cannot be considered
representative of the potentially 150 sources in the area subject to
401 KAR 59:760 without further documentation to show how the survey was
conducted. For example, no documentation is provided as to how the
recipients of the survey were chosen, nor was the response rate for the
survey identified. Without further information, the Agency is unable to
draw any conclusions on the use of HVLP in the Northern Kentucky area
on the basis of the May 2005 MRSI survey.
EPA acknowledges that high transfer efficiency spray guns may have
been in use by the autobody repair and refinishing sector for a number
of years. However, in the Northern Kentucky area, there has previously
been no requirement for facilities to use these efficient spray guns
and thus, their proper and consistent use is highly questionable. Given
the previous status of HVLP spray gun use in the Northern Kentucky
area, it is not feasible to quantify the VOC reductions, if any, that
resulted from the use of such equipment before the regulation was
adopted. For example, if the equipment was broken, a source might opt
for another coating application method that is not of high transfer
efficiency to save time since high transfer efficiency was not
required.
Additionally, following instructions for the equipment is not
commensurate to obtaining formal training on the equipment as required
under 401 KAR 59:760. Section 5 of 401 KAR 59:760 requires that
documentation must be submitted to KDAQ that high transfer efficiency
coating application techniques are in use at the facility and that all
employees applying coatings are properly trained in the use of the
application equipment, and the handling of a regulated coating and any
solvents used to clean the spray gun. This documentation provides added
assurance that the equipment is being consistently and properly used in
a way that maximizes efficiency and reduces VOC emissions, and is more
reliable than survey data.
Also, the material storage requirements in Section 3(3) of 401 KAR
59:760 will reduce VOC emissions.
[[Page 57758]]
Materials subject to these provisions include fresh and used coatings,
solvents, VOC-containing additives and materials and waste materials,
and cloth, paper, or absorbent applicators moistened with any of these
items. These materials must be stored in nonabsorbent, non-leaking
containers and the containers must be kept closed at all times when not
in use.
In an e-mail to EPA dated August 12, 2005, KDAQ provided
supplemental information to further support the additional emissions
reductions expected from the training requirements of 401 KAR 59:760.
KDAQ highlighted results of the Spray Techniques Analysis and Research
(STAR) Program at the Iowa Waste Reduction Center as reported by EPA's
Design for the Environment (DfE) Program. These results are summarized
on EPA's DfE Web site for HVLP spray guns (http://www.epa.gov/opptintr/dfe/pubs/auto/trainers/sprayandsave.htm) as follows. On average, an
HVLP gun will improve paint transfer from 40 percent to 49 percent over
a conventional gun, and if recommended HVLP spraying techniques are
adopted and applied properly, transfer efficiency will increase up to
61 percent. KDAQ also notes that the STAR Program begun by the
University of Iowa has estimated proper training in the use of HVLP
equipment can provide up to a 22 percent increase in transfer
efficiency. According to an October 4, 2001, article in Products
Finishing magazine on the STAR Program, the average increase in
transfer efficiency for trained STAR Program students is cited in
Figure 2 of the article as 27 percent, with a corresponding average
decrease of VOC emissions and paint usage both by 22 percent. (Although
the article elsewhere uses a figure of 22 percent average increase in
transfer efficiency for trained STAR students, the data in Figure 2
appears to support the 27 percent figure.) The STAR Program Web site
(http://www.iwrc.org/programs/star.cfm) provides a link to this
magazine article (http://www.pfonline.com/articles/100401.html). The
data previously described regarding increases in paint transfer
efficiency resulting from HVLP use and formal training on HVLP
techniques further supports the estimated emissions reductions from
requirements of 401 KAR 59:760. (Kentucky's August 12, 2005 e-mail, the
referenced EPA DfE Web site information, and the Products Finishing
magazine article are available in the docket for this action.)
Another commenter submitted a summary of the number of HVLP guns
and number of operators trained (including dates of training where
available) for 26 facilities in Northern Kentucky. This data was taken
from a review of compliance forms required pursuant to Section 5(1) of
401 KAR 59:760 provided by the KDAQ. The information submitted by the
commenter indicates training occurred for HVLP operators at 14
facilities prior to 2005 (except for two operators at one facility)
whereas approximately five facilities had their operators trained in
2005 (with the exception of two operators at one facility). The
training dates could not be discerned for the remaining seven
facilities. The commenter also notes that there are several Compliance
Forms in addition to the 26 summarized for which the employment
locations of the listed individuals is not provided and thus, were not
included. EPA has reviewed this partial summary information of HVLP
training dates for a number of facilities in Northern Kentucky which
submitted 401 KAR 59:760 Compliance Forms. The information submitted by
the commenter does not indicate, in most cases, the length of time the
HVLP spray guns have been in use by the 26 reporting facilities in
Northern Kentucky. Furthermore, since the information is, as the
commenter noted, not complete, it is unclear what the status of HVLP
use and training is at the other (unspecified number of) facilities
subject to 401 KAR 59:760. Also, as noted in the preceding paragraph,
without a regulatory requirement to use HVLP spray guns (or other
equivalent technology) in Northern Kentucky, their consistent use prior
to the state effective date of 401 KAR 59:760 remains questionable.
EPA has reviewed the comments, supplemental information provided by
KDAQ on paint transfer efficiency increases due to HVLP use and
training, and Agency guidance for this source type described in
Response 17, and believes that consistent use of high transfer
efficiency equipment by trained technicians and proper cleaning and
material storage as required by 401 KAR 59:760 will result in the
estimated reductions of VOC emissions.
Comment 17: A commenter suggests that estimates of projected
baseline emissions are not accurate and are grounded in pure
conjecture. The commenter believes without an inventory of the affected
facilities and the current regulatory and emissions status of those
facilities, substituting 401 KAR 59:760 for VET Program emissions
reductions does not provide real, contemporaneous reductions.
Response 17: See also Response 9 of this action regarding the
emissions projection methodology approved by EPA for area sources.
Appendix E of the February 9, 2005, submittal lists, for 2005, that
a projected amount of 0.96 tpsd VOC emissions from mobile equipment
refinishing operations in Northern Kentucky is available for reduction
after accounting for 37 percent VOC emissions reductions for autobody
refinishing allowed by EPA under the conditions specified in a 1994 EPA
guidance memorandum. This memorandum, dated (at the bottom) November
21, 1994, is from John Seitz, Director, to the EPA Regional Air
Division Directors titled, ``Credit for the 15 Percent Rate-of-Progress
Plans for Reductions from the Architectural and Industrial Maintenance
(AIM) Coating Rule and the Autobody Refinishing Rule.'' (The November
21, 1994, EPA memorandum is accessible in RME under the same docket ID
number for this action.) The 2005 emissions projection of 0.96 tpsd VOC
is based on actual 1996 emission inventory data from the 1-hour ozone
maintenance plan for the area. As stated in Response 9 of this action,
Kentucky is not required (nor is the data available) to provide a
current (i.e., 2005) emissions inventory of mobile equipment
refinishing facilities in Northern Kentucky for the purpose of this SIP
revision. Kentucky appropriately applied EPA-approved rule
effectiveness and control efficiency factors which reflect the level of
emissions reductions expected from this type of rule to estimate the
VOC emissions reductions from 401 KAR 59:760. EPA has determined that
Kentucky's emissions projection methodology is consistent with EPA
guidance. (For EPA's complete analysis of the methodology, see proposed
rule at 70 FR 17029, April 4, 2005.)
Comment 18: The commenter believes that proposed regulation 401 KAR
59:760 is unclear as to what aspects of the application of VOC-
containing compounds to mobile equipment is intended to be regulated.
The commenter notes clarification of the scope and certain terms in
Sections 3 and 5 of 401 KAR 59:760 are needed. Specifically, the
commenter requests clarification to the scope in Section 3 of the term
``finish'' applied to mobile equipment subject to the rule, and in
Section 5 regarding exemptions to the term, ``application of automotive
touch-up repair and refinishing materials.'' Also in Section 5, the
commenter notes that the term, ``high efficiency transfer application
techniques,'' appears confusing.
[[Page 57759]]
Response 18: To address what aspects of the application of VOC-
containing compounds to mobile equipment is intended to be regulated,
KDAQ clarifies in Response 25(b) of Appendix G of the final February 9,
2005, SIP package that when applying VOC-containing coatings on mobile
equipment, the use of a high efficiency transfer application method is
required for an applicable source. Section 4 of 401 KAR 59:760
addresses the exemptions for an applicable source.
Regarding the comment that the term, ``high efficiency transfer
application techniques,'' in Section 5 of the regulation appears
confusing, KDAQ notes in Response 26(b) of Appendix G of the final SIP
package that this section was revised in response to the comment.
Specifically, a reference to the techniques described in Section 3 was
added to Section 5 to more fully explain the term in question.
In response to the clarifications requested for the term ``finish''
applied to mobile equipment subject to the rule in Section 3, KDAQ
amended Section 3(1) of 401 KAR 59:760 by replacing ``finish'' with the
more specific phrase, ``coating containing a VOC as a pretreatment,
primer, sealant, basecoat, clear coat, or topcoat to mobile equipment
for commercial purposes.''
The commenter expresses concerns that use of the term,
``application of automotive touch-up repair and refinishing
materials,'' as exempt from the Section 3 requirements of the rule can
be read to exclude all application of automotive refinishing materials.
EPA first clarifies that this term was used in Section 4(3), not
Section 5, of the proposed version of 401 KAR 59:760 submitted in the
November 12, 2004, proposed SIP package. To address the commenter's
concerns, KDAQ replaced the term with ``application of a coating to
mobile equipment solely for repair of small areas of surface damage or
minor imperfections.'' Additionally, KDAQ, in response to this comment,
affirms the purpose of the Section 4 exemptions in Response 28(b) of
Appendix G of the February 9, 2005, final SIP package. Specifically,
KDAQ states that the intent of the exclusions listed in Section 4 is to
allow facilities the ability to conduct their work properly and affirms
that the exemptions are not intended for applicable facilities to
circumvent the regulatory requirements.
EPA concurs with the clarifications made to 401 KAR 59:760, state
effective March 11, 2005, and the explanatory statements provided by
KDAQ in Appendix G of the February 9, 2005, SIP package in response to
the commenter's concerns.
Comment 19: The commenter questions the reasoning of Kentucky's
political leaders for terminating the VET Program in light of a 2004
study of ambient air data ranking Greater Cincinnati and the Northern
Kentucky region as eleventh worst in both ozone and fine particulate
pollution according to 2003 data.
Response 19: This comment regarding the Commonwealth's basis for
its selection of air pollution control strategies in the Northern
Kentucky area is beyond the scope of this action and will not be
addressed. Kentucky has the discretion to select the emissions
reduction programs it will use to reach attainment of applicable air
quality standards and EPA must approve those selections as long as all
provisions of the CAA are met. See CAA section 116.
Comment 20: A few commenters claim that if the VET Program is
eliminated, fewer vehicle owners will pursue maintenance and thus,
vehicles will operate less optimally, further exacerbating pollution in
the area. One commenter affirms that this will result in decreased
demand for vehicle maintenance providers, causing business loss and job
loss within this sector. A commenter questions why it is more
appropriate to have small businesses adopt new controls to offset the
additional emissions that will result from lack of vehicle maintenance
after termination of the I/M program, rather than to test the cars to
assure proper maintenance. Another commenter notes that by improving
and keeping the VET Program, the stress on the small businesses may be
stretched over a longer period of time, as these gradual reductions
will be desired to offset increased pollution from the Brent Spence
Bridge congestion. This commenter claims that the Brent Spence Bridge
is the most significant factor in motor vehicle pollution generation
and that over the next decade, pollution will worsen as a result.
Response 20: In reviewing SIP submissions, EPA's role is to approve
state choices, provided that they meet the criteria of the CAA. (See
Section VI. of this action.) It is the Commonwealth's discretion to
choose to propose replacement, rather than modification, of the VET
Program for the purposes of this specific action. The comments related
to the Brent Spence Bridge are not specific to the issues contained in
the April 4, 2005, proposed rule (70 FR 17029) and thus, will not be
addressed here. Any emissions increases resulting from that action will
be addressed in appropriate forums relating to approval of such
activities, such as the transportation conformity program.
Comment 21: The commenter states that the values for pollution
magnitude on which the proposed SIP revision is based derive from
models which depend on data measured at a monitoring location.
Currently, across the three-county Northern Kentucky area, the
commenter notes that there is an average of one monitor per pollutant
measured. It is therefore likely that we under-estimate current
pollution magnitude.
Response 21: The Northern Kentucky monitoring network consists of
the following monitors to address the NAAQS which are currently
operating in 2005. Three of the eight ozone monitors in the Cincinnati-
Hamilton MSA are located in Boone, Campbell, and Kenton Counties (one
monitor per county). Two of the eight PM2.5 monitors in the Cincinnati-
Hamilton MSA are located in the Northern Kentucky area in Kenton and
Campbell Counties. The Northern Kentucky area also has three monitors,
one for each of the following pollutants: sulfur dioxide, nitrogen
dioxide, and coarse particulate matter (i.e., PM10). EPA has approved
the siting and design of this monitoring network as adequate for this
area, and to support the entire MSA monitoring network, and has
determined it meets the requirements of 40 CFR part 58. EPA thus
believes that ambient levels of pollutants for which the Agency has
established NAAQS are adequately monitored for in the Northern Kentucky
area.
Comment 22: One commenter requested extensions to the public
comment period. Another commenter states that it is entirely
inappropriate to curtail the public comment period before the summer
period during which citizens may best evaluate the burden of under-
maintained vehicular emissions.
Response 22: EPA extended the public comment period on the proposed
rule (on April 4, 2005, EPA opened a 30 day period for comments on our
proposed action) as requested from May 4, 2005 to May 18, 2005. (May 2,
2005, 70 FR 22623) EPA also accepted comments received in the next few
weeks following the May 18, 2005, date. The comment regarding the need
to extend the public comment period until the end of the 2005 summer
period to evaluate any changes in vehicle emissions is not valid for
two main reasons. First, the Northern Kentucky VET Program will
continue to be in operation until on or after the effective date of
EPA's final action on the February 9, 2005, submittal. If the public
comment period were extended on this action, EPA would not be able to
take final action and thus, the VET
[[Page 57760]]
Program would still be operating, which would invalidate the purpose of
the comment period extension. Second, cessation of the VET Program will
not yield an immediate change in vehicle emissions. The Program's
benefits will continue for a period of time after its cessation, as
vehicles inspected and/or repaired up until that time would continue to
operate in a manner that meets the emissions specification of the
program. Additionally, fleet turnover would continue to occur during
this time period, thereby removing older cars from use and replacing
them with newer, cleaner cars.
Comment 23: The commenter states that the Commonwealth's earlier
proposal to take emissions reduction credit for the shutdown of the
electric arc furnace from the Newport Steel Wilder facility was
inappropriate because the reductions were not contemporaneous with the
cessation of the VET Program and historical emissions numbers were
inappropriate to use to determine emissions reductions credit in light
of the terms of a pending enforcement order at the time. The commenter
urges the EPA to maintain its position concerning the use of the
proposed Newport Steel emissions reductions to replace the VET
Program's emissions reductions.
Response 23: This comment is not relevant to either the April 4,
2005, (70 FR 17029) proposed rule or the February 9, 2005, SIP
submittal since neither the proposed nor the final SIP packages rely on
equivalent emissions reductions from the Newport Steel facility. Thus,
this comment will not be addressed.
Comment 24: The commenter writes that any reliance by Kentucky or
EPA on NOX emissions reductions that will occur due to
controls being installed by utilities in response to the NOX
SIP Call would be inappropriate for several reasons. These reasons
include the reductions are not surplus, would require appropriate
modeling and analysis to demonstrate equivalent or better air quality
benefit in ozone formation, and are not considered permanent nor
enforceable without an Order and permanent retirement of equivalent
NOX allowances.
Response 24: This comment is not relevant to either the April 4,
2005, (70 FR 17029) proposed rule or the February 9, 2005, SIP
submittal since neither the proposed nor the final SIP packages rely on
equivalent emissions reductions of NOX achieved in response
to the NOX SIP call. Thus, this comment will not be
addressed.
Comment 25: Several comments were submitted in support of the
Agency's April 4, 2005, proposed rulemaking (70 FR 17029). Many
commenters stated that the present VET Program is not an effective
means of reducing air pollution. Some commenters urged the Agency to
consider other ways to clean up the air and the environment. Other
commenters requested to stop the VET Program due to the burden imposed
on the Northern Kentucky residents in terms of expense and
inconvenience. Several commenters suggested ways to revise the VET
Program to improve effectiveness and to make the program less costly.
Response 25: Comments related to the obligations, effectiveness,
and cost of the VET Program, and to other methods to clean the air are
not specific to the issues contained in the April 4, 2005, proposed
rule (70 FR 17029) and thus, will not be addressed. EPA notes that the
existing Northern Kentucky VET Program meets the I/M program
requirements applicable to the Northern Kentucky area. For the purposes
of this specific action, it is the Commonwealth's discretion to choose
to propose replacement, rather than modification, of the VET Program.
Comment 26: Some commenters suggested that the EPA identify where
to make public comments, as the newspaper article highlighting that the
public comment period was open did not mention this.
Response 26: The EPA is not responsible for managing the content of
news articles, and was not involved in the newspaper article
referenced. The EPA's April 4, 2005, (70 FR 17029) proposed approval of
Kentucky's proposed November 12, 2004, SIP revision request provides a
number of ways for submitting comments under the ADDRESSES section of
the proposed action.
V. Final Action
EPA is approving a revision to the Kentucky SIP which moves
regulation 401 KAR 65:010 from the regulatory portion of the Kentucky
SIP to the contingency measures section of the Kentucky portion of the
Northern Kentucky 1-Hour Ozone Maintenance Plan. EPA is also approving
revisions to 401 KAR 59:185 with a state effective date of January 4,
2005, and adding a new rule, 401 KAR 59:760, to the SIP, with a state
effective date of March 11, 2005. Further, EPA is approving updated
mobile source category emissions projections using MOBILE6.2 with
updated, state MVEBs for the year 2010 of 7.68 tpsd VOCs and 17.42 tpsd
NOX. In this final action, EPA is also correcting references
to the former 2010 MVEBs developed using MOBILE 5, which were stated in
the November 12, 2004, proposed SIP submittal and on page 17033 of the
April 4, 2005, rule (70 FR 17029), as 7.02 tpsd VOC and 17.33 tpsd
NOX. The correct numbers, as reflected in the latest SIP
revision approved by EPA published on May 30, 2003, (68 FR 32382), are
7.33 tpsd VOC and 17.13 tpsd NOX.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885,
[[Page 57761]]
April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule 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 December 5, 2005. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: September 27, 2005.
J.I. Palmer, Jr.
Regional Administrator, Region 4.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart S--Kentucky
0
2. Section 52.920 is amended:
0
a. In paragraph (c) by removing from Table 1, 401 KAR 65:010 titled,
``Vehicle emission control programs.''
0
b. In paragraph (c) by revising the entry in Table 1 for 401 KAR 59:185
titled ``New solvent metal cleaning equipment.'' and adding a new
entry, 401 KAR 59:760 titled ``Commercial Motor Vehicle and Mobile
Equipment Refinishing Operations.'' and
0
c. In paragraph (e) by revising the entire entry for ``Northern
Kentucky Maintenance Plan revisions,'' including the entry name to read
as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
Table 1.--EPA-Approved Kentucky Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
Name of source Title/subject effective date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
401 KAR 59:185.................... New solvent metal cleaning 01/04/05 10/04/05 [Insert first page number
equipment. of publication]
401 KAR 59:760.................... Commercial Motor Vehicle 03/11/05 10/04/05 [Insert first page number
and Mobile Equipment of publication]
Refinishing Operations.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
EPA-Approved Kentucky Non-Regulatory Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
Name of non-regulatory SIP Applicable geographic or submittal date/ EPA approval Explanation
provision nonattainment area effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Northern Kentucky 1-Hour Ozone Boone, Campbell, and 02/09/05 10/04/05 [Insert first page number
Maintenance Plan. Kenton Counties. of publication]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 57762]]
* * * * *
[FR Doc. 05-19875 Filed 10-3-05; 8:45 am]
BILLING CODE 6560-50-P