[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Rules and Regulations]
[Pages 36601-36605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13003]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-RO4-OAR-2006-0584-200723; FRL-8335-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Kentucky: Redesignation of
the Kentucky Portion of the Louisville 8-Hour Ozone Nonattainment Area
to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a request, submitted on September 29, 2006,
from the Commonwealth of Kentucky (Kentucky), through the Kentucky
Division for Air Quality (KDAQ), to redesignate the Kentucky portion of
the bi-State Louisville 8-hour ozone nonattainment area to attainment
for the 8-hour National Ambient Air Quality Standard (NAAQS). The
Kentucky portion of the bi-State Louisville 8-hour ozone nonattainment
area (hereafter referred to as the ``Kentucky State Louisville Area'')
is comprised of three Kentucky Counties--Bullitt, Jefferson and Oldham.
The Indiana portion of the bi-State Louisville 8-hour ozone
nonattainment area is comprised of two Indiana Counties--Clark and
Floyd. EPA's approval of Kentucky's redesignation request is based upon
the determination that Kentucky has demonstrated that the Kentucky
State Louisville Area has met the criteria for redesignation to
attainment specified in the Clean Air Act (CAA), including the
determination that the entire (both the Kentucky and Indiana portions)
bi-State Louisville 8-hour ozone nonattainment area has attained the 8-
hour ozone standard. Additionally, EPA is approving the 8-hour ozone
maintenance plan for the Kentucky State Louisville Area, including the
regional motor vehicle emission budgets (MVEBs) for nitrogen oxides
(NOX) and volatile organic compounds (VOCs) which cover the
Kentucky and Indiana portions of this bi-State area. In July and
September 2006, Indiana submitted a redesignation request and
maintenance plan for the Indiana portion of this 8-hour ozone area with
identical MVEBs to those reflected in Kentucky's maintenance plan. EPA
is taking action on that redesignation request and maintenance plan in
a separate action. This final rule also addresses a comment made on
EPA's proposed rulemaking for this action, previously published April
27, 2007 (72 FR 20966).
EFFECTIVE DATE: This rule will be effective August 6, 2007.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-RO4-OAR-2006-0584. All documents in the docket
are listed on the www.regulations.gov Web site. 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 through www.regulations.gov or in hard
copy at the Regulatory Development Section, Air Planning Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30, excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Heidi LeSane, 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. LeSane can be reached via
telephone number at (404) 562-9074 or electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Is the Background for the Actions?
II. What Actions Is EPA Taking?
III. Why Are We Taking These Actions?
IV. What Are the Effects of These Actions?
V. Response to Comments
VI. Final Action
VII. Statutory and Executive Order Reviews
I. What Is the Background for the Actions?
On September 29, 2006, Kentucky, through the KDAQ, submitted a
request to redesignate the Kentucky bi-State Louisville Area to
attainment for the 8-hour ozone standard, and for EPA approval of the
Kentucky State Implementation Plan (SIP) revision containing a
maintenance plan for the Kentucky State Louisville Area. In an action
published on April 27, 2007 (72 FR 20966), EPA proposed to approve the
redesignation of the Kentucky State Louisville Area to attainment. EPA
also proposed approval of Kentucky's plan for maintaining the 8-hour
NAAQS as a SIP revision, and proposed to approve the regional MVEBs for
the Kentucky bi-State Louisville Area that were contained in the
maintenance plan. This rule is EPA's final action on the April 27,
2007, proposed rule.
During the comment period for EPA's proposal, one commenter
submitted an adverse comment. EPA is addressing that comment in this
action, and is taking final action as described in Section II and
Section V of this rulemaking.
EPA is also providing information on the status of the Agency's
transportation conformity adequacy determination for the new regional
MVEBs for the years 2003 and 2020 that are contained in the maintenance
plan for the Kentucky bi-State Louisville Area. These MVEBs are
identical to those reflected in Indiana's maintenance plan for this bi-
State area. The maintenance plans establish the following regional
MVEBs for the Kentucky bi-State Louisville Area.
Kentucky Bi-State Louisville 8-Hour Ozone MVEBs
[Tons per day]
------------------------------------------------------------------------
2003 2020
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VOC................................................... 40.97 22.92
NOX................................................... 95.51 29.46
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EPA's adequacy public comment period on these budgets (as contained
in Kentucky's submittal) began on April 27, 2007, and closed on May 29,
2007.
[[Page 36602]]
No comments related to the adequacy of the MVEBs were received during
EPA's adequacy public comment period.
Consequently, in a letter dated June 18, 2007, to John Lyons,
Director of the Kentucky Department of Air Quality, and Art Williams,
Director of Jefferson County Air Pollution Control District, EPA
informed Kentucky of its intention to find the new 2003 and 2020 MVEBs
for VOC and NOX adequate for transportation conformity
purposes. The State of Indiana was also informed of EPA's intentions in
a letter date June 18, 2007. Subsequently, in a separate Federal
Register notice, EPA is finding the 2003 and 2020 MVEBs, as contained
in Kentucky's submittal, adequate. A similar notice was published for
these MVEBs as contained in Indiana's submittal. These MVEBs meet the
adequacy criteria contained in the Transportation Conformity Rule. The
new regional MVEBs are thus currently being used for transportation
conformity determinations.
Various aspects of EPA's Phase 1 8-hour ozone implementation rule
were challenged in court and on December 22, 2006, the U.S. Court of
Appeals for the District of Columbia Circuit (D.C. Circuit Court)
vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone
Standard. (69 FR 23951, April 30, 2004.) South Coast Air Quality
Management Dist. (SCAQMD) v. EPA, 472 F. 3d 882 (DC Cir. 2006). On June
8, 2007, in response to several petitions for rehearing, the D.C.
Circuit clarified that the Phase 1 Rule was vacated only with regard to
those parts of the rule that had been successfully challenged.
Therefore, the Phase 1 Rule provisions related to classifications for
areas currently classified under subpart 2 of title I, part D of the
Act as 8-hour nonattainment areas, the 8-hour attainment dates and the
timing for emissions reductions needed for attainment of the 8-hour
ozone NAAQS remain effective. The June 8th decision left intact the
Court's rejection of EPA's reasons for implementing the 8-hour standard
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule
that had not been successfully challenged. The June 8th decision
reaffirmed the December 22, 2006, decision that EPA had improperly
failed to retain four measures required for 1-hour nonattainment areas
under the anti-backsliding provisions of the regulations: (1)
Nonattainment area New Source Review (NSR) requirements based on an
area's 1-hour nonattainment classification; (2) Section 185 penalty
fees for 1-hour severe or extreme nonattainment areas; (3) measures to
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act,
on the contingency of an area not making reasonable further progress
toward attainment of the 1-hour NAAQS, or for failure to attain that
NAAQS; and (4) certain transportation conformity requirements for
certain types of federal actions. The June 8th decision clarified that
the Court's reference to conformity requirements was limited to
requiring the continued use of 1-hour MVEBs until 8-hour budgets were
available for 8-hour conformity determinations.
For the reasons set forth in the proposal action for the Kentucky
bi-state Louisville Area, EPA does not believe that the Court's rulings
alter any requirements relevant to this redesignation action so as to
preclude redesignation, and do not prevent EPA from finalizing this
redesignation. EPA believes that the Court's December 22, 2006, and
June 8, 2007, decisions impose no impediment to moving forward with
redesignation of this area to attainment, because even in light of the
Court's decisions, redesignation is appropriate under the relevant
redesignation provisions of the Act and longstanding policies regarding
redesignation requests.
II. What Actions Is EPA Taking?
EPA is taking final action to approve Kentucky's redesignation
request and to change the legal designation of the Kentucky bi-State
Louisville Area from nonattainment to attainment for the 8-hour ozone
NAAQS. EPA's response to the only comment received on the April 27,
2007, proposed rule, is described in Section III below. The entire bi-
State Louisville 8-hour ozone nonattainment area is comprised of three
Kentucky Counties--Bullitt, Jefferson, and Oldham, and two Indiana
Counties--Clark and Floyd. This final action addresses only the
Kentucky portion of the bi-state Louisville 8-hour ozone area. EPA will
take action on the redesignation request and maintenance plan for the
Indiana portion of this area in a separate action. EPA is also
approving Kentucky's 8-hour ozone maintenance plan for Bullitt,
Jefferson, and Oldham counties (such approval being one of the CAA
criteria for redesignation to attainment status). The maintenance plan
is designed to help keep the Kentucky state Louisville Area in
attainment for the 8-hour ozone NAAQS through 2020. These approval
actions are based on EPA's determination that Kentucky has demonstrated
that the Kentucky state Louisville Area has met the criteria for
redesignation to attainment specified in the CAA, including a
demonstration that the entire bi-state Louisville area has attained the
8-hour ozone standard. EPA's analyses of Kentucky's 8-hour ozone
redesignation request and maintenance plan are described in detail in
the proposed rule published April 27, 2007 (72 FR 20966).
Consistent with the CAA, the maintenance plan that EPA is approving
today also includes 2003 and 2020 regional MVEBs for NOX and
VOCs. In this action, EPA is approving these 2003 and 2020 MVEBs. For
regional emission analysis years that involve years prior to 2020, the
applicable budget, for the purpose of conducting transportation
conformity analyses, are the new 2003 MVEBs. For regional emission
analysis years that involve the year 2020 and beyond, the applicable
budget, for the purpose of conducting transportation conformity
analyses, are the new 2020 MVEBs. EPA determined that the 2003 and 2020
MVEBs are adequate through a previous action. EPA is approving such
MVEBs in this action.
Additionally, in this action, EPA is responding to the one comment
received on the April 27, 2007 (72 FR 20966), rulemaking proposing to
approve the redesignation request and the maintenance plan SIP
revision.
III. Why Are We Taking These Actions?
EPA has determined that the entire bi-state Louisville area has
attained the 8-hour ozone standard and has also determined that
Kentucky has demonstrated that all other criteria for the redesignation
of the Kentucky State Louisville Area from nonattainment to attainment
of the 8-hour ozone NAAQS have been met. See, section 107(d)(3)(E) of
the CAA. EPA is also taking final action to approve the maintenance
plan for the Kentucky State Louisville Area as meeting the requirements
of sections 175A and 107(d) of the CAA. Furthermore, EPA is approving
the 2003 and 2020 MVEBs contained in Kentucky's maintenance plan
because these MVEBs are consistent with maintenance for the entire bi-
state Louisville area. In the April 27, 2007, proposal to redesignate
the Kentucky State Louisville Area, EPA described the applicable
criteria for redesignation to attainment and its analysis of how those
criteria have been met. The rationale for EPA's findings and actions is
set forth in the proposed rulemaking and summarized in this rulemaking.
IV. What Are the Effects of These Actions?
Approval of the redesignation request changes the official
designation of
[[Page 36603]]
Bullitt, Jefferson, and Oldham Counties for the 8-hour ozone NAAQS,
found at 40 CFR Part 81. It also incorporates into the Kentucky SIP a
plan for maintaining the 8-hour ozone NAAQS in the area through 2020.
The maintenance plan includes contingency measures to remedy future
violations of the 8-hour ozone NAAQS, and establishes MVEBs for the
years 2003 and 2020 for the entire bi-state Louisville area.
V. Response to Comments
EPA received comments from one individual in response to the April
27, 2007, proposal to redesignate the Kentucky State Louisville Area.
72 FR 20966. The following is a summary of the adverse comment received
and EPA's response to that comment.
Comment: Kentucky Resource Council states that the data reflects
that Louisville Gas & Electric's (LG&E) power plants, Trimble, Ghent
and Mill Creek, are running at low NOX emission rates due to
recent installation of selective catalytic reduction control
technology. To the extent that these reductions achieved by the
utilities to aid compliance with the NOX SIP call are relied
upon by the District and Kentucky in order to demonstrate attainment or
maintenance of attainment, those emission reductions must be made
permanent and enforceable. As a cap and trade program, the
NOX SIP call would not itself require that the utilities
continue to operate at such a low emissions rate from these units.
Response: In evaluating attainment and future maintenance of the 8-
hour ozone standard in the Louisville area, the Commonwealth of
Kentucky and EPA utilized current air quality monitoring data and
future projected emissions data based upon enforceable, permanent
reductions. Some of these reductions are related to regional
NOX reduction programs, such as the NOX SIP Call
and the Clean Air Interstate Rule. As discussed in the redesignation
proposal, the emissions analysis for the Louisville area indicates that
the area will continue to maintain the 8-hour ozone standard until at
least 2020 without taking into account the reductions from LG&E's use
of specific control technology. The projected NOX levels
without reductions from the NOX SIP Call for the years 2005,
2008, 2011, 2014, 2017 and 2020, continue to show reductions below the
base year, which demonstrate maintenance as summarized in the table
below. We expect the area will continue to benefit from the reductions
due to control equipment installed to meet the NOX SIP Call.
However, EPA's analysis indicates that the area will continue to
maintain even without those reductions.
Actual and Projected NOX Emissions for Bullitt, Jefferson and Oldham Counties
[Tons per day]
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Categories 2003 2005 2008 2011 2014 2017 2020
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Point
Bullitt............................ 0.60 0.61 0.64 0.65 0.68 0.71 0.72
Jefferson.......................... 74.48 53.95 53.63 50.91 51.76 51.24 46.49
Oldham............................. 0.09 0.09 0.09 0.10 0.10 0.10 0.10
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Area Subtotal.................. 75.47 54.65 54.36 51.66 52.54 52.05 47.31
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Point
Bullitt............................ 0.11 0.11 0.12 0.12 0.13 0.13 0.14
Jefferson.......................... 0.75 0.76 0.76 0.76 0.76 0.76 0.76
Oldham............................. 0.07 0.07 0.07 0.08 0.09 0.09 0.09
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Area Subtotal.................. 0.93 0.94 0.95 0.96 0.98 0.98 0.99
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Mobile*
Bullitt............................ 7.52 7.23 5.99 4.83 3.84 3.17 2.73
Jefferson.......................... 63.29 54.96 41.55 29.62 19.76 13.87 11.02
Oldham............................. 4.43 4.36 3.58 2.88 2.34 1.96 1.72
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Mobile Subtotal................ 75.24 66.55 51.12 37.33 25.94 19.00 15.47
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Nonroad
Bullitt............................ 1.81 1.78 1.70 1.60 1.47 1.35 1.27
Jefferson.......................... 31.94 31.11 29.36 27.37 25.26 23.44 22.17
Oldham............................. 1.63 1.59 1.49 1.37 1.22 1.07 0.95
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Nonroad Total.................. 35.38 34.48 32.55 30.34 27.95 25.86 24.39
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Total with NOX SIP Call 187.02* 156.62 138.98 120.29 107.41 97.89 88.16
Reductions................
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Reductions due to NOX SIP Call..... ......... 20.88 21.25 23.93 23.05 23.54 28.25
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Total without NOX SIP Call ......... 177.50 160.23 144.22 130.46 121.43 116.41
reductions................
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* Actual baseline emissions.
Without taking credit for NOX SIP Call reductions, projected
emissions are below the baseline emissions for attainment.
VI. Final Action
After evaluating Kentucky's redesignation request and the comments
received, EPA is taking final action to approve the redesignation and
change the legal designation of the Kentucky state Louisville Area from
nonattainment to attainment for the 8-hour ozone NAAQS. Through this
action, EPA is also approving into the Kentucky SIP, the 8-hour ozone
maintenance plan for Bullitt, Jefferson,
[[Page 36604]]
and Oldham Counties, which includes the new 2003 MVEBs of 40.97 tpd for
VOC, and 95.51 tpd for NOX, and 2020 MVEBs of 22.92 tpd for
VOC, and 29.46 tpd for NOX for the entire bi-state
Louisville area. These identical MVEBs are reflected in Indiana's 8-
hour maintenance plan which was developed for Clark and Floyd Counties,
as part of this bi-state 8-hour ozone area. EPA is taking action on the
Indiana SIP through a separate rulemaking.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is 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 (Public Law 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 affects the status of a
geographical area, does not impose any new requirements on sources or
allow a state to avoid adopting or implementing other requirements, and
does not alter the relationship or the distribution of power and
responsibilities established in the CAA. This rule also is not subject
to Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because
it is not economically significant and because the Agency does not have
reason to believe that the rule concerns an environmental health risk
or safety risk that may disproportionately affect children.
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 September 4, 2007. 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) of the CAA.)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: June 27, 2007.
J.I. Palmer Jr.,
Regional Administrator, Region 4.
0
40 CFR part 52 and 81 are 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(e) is amended by adding a new entry at the end of the
table for ``Louisville 8-hour Ozone Maintenance Plan'' to read as
follows:
Sec. 52.920 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Kentucky Non-regulatory Provisions
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Applicable State submittal
Name of nonregulatory SIP geographic or date/effective EPA approval date Explanation
provision nonattainment area date
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* * * * * * *
Louisville 8-hour Ozone Bullitt County, .................. 07/05/07 [Insert
Maintenance Plan. Jefferson County, first page of
Oldham County. publication].
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[[Page 36605]]
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 81.318, the table entitled ``Kentucky-Ozone (8-Hour
Standard)'' is amended by revising the entry for ``Louisville, KY-IN'',
``Bullitt County'', ``Jefferson County'', and ``Oldham County'' to read
as follows:
Sec. 81.318 Kentucky.
* * * * *
Kentucky-Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation \a\ Category/classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Louisville, KY-IN:
Bullitt County...................... 08/06/07 Attainment...............................
Jefferson County.................... 08/06/07 Attainment...............................
Oldham County....................... 08/06/07 Attainment...............................
* * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * *
[FR Doc. E7-13003 Filed 7-3-07; 8:45 am]
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