[Federal Register Volume 72, Number 81 (Friday, April 27, 2007)]
[Proposed Rules]
[Pages 20966-20977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8114]
[[Page 20966]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R04-OAR-2006-0584-200701-; FRL-8306-4]
Approval and Promulgation of Implementation Plans and
Designations 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: Proposed rule.
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SUMMARY: On September 29, 2006, the Commonwealth of Kentucky
(Kentucky), through the Kentucky Division for Air Quality (KDAQ),
submitted a request 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); and to approve a State
Implementation Plan (SIP) revision containing a maintenance plan for
the Kentucky portion of the bi-State Louisville area. The Kentucky
portion of the bi-State Louisville 8-hour ozone nonattainment area
(hereafter referred to as the ``Kentucky Bi-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. In this action, EPA is proposing to approve Kentucky's 8-hour
ozone redesignation request for the Kentucky Bi-State Louisville Area.
Additionally, EPA is proposing to approve the 8-hour ozone maintenance
plan for the Kentucky Bi-State Louisville Area, including the regional
motor vehicle emission budgets (MVEBs) for nitrogen oxides
(NOX) and volatile organic compounds (VOCs). This proposed
approval of Kentucky's redesignation request is based upon EPA's
determination that Kentucky has demonstrated that the Kentucky Bi-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.
In July and September 2006, Indiana submitted a redesignation request
and maintenance plan for the Indiana portion of this 8-hour ozone area.
EPA is taking action on that redesignation request and maintenance plan
in a separate action. In this action, EPA is also notifying the public
that EPA is reviewing the 2003 and 2020 regional MVEBs for
NOX and VOCs submitted by Kentucky as part of its
maintenance plan, for adequacy. These regional MVEBs are identical to
those contained in the Indiana submittal for the bi-State area. During
the comment period for this proposal, the public may also comment on
the adequacy of the proposed regional MVEBs.
DATES: Comments must be received on or before May 29, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2006-0584, by one of the following methods:
(a) www.regulations.gov: Follow the on-line instructions for
submitting comments.
(b) E-mail: [email protected].
(c) Fax: 404-562-9019.
(d) Mail: EPA-R04-OAR-2006-0584 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.
(e) Hand Delivery or Courier: Heidi LeSane, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only
accepted during the Regional Office's normal hours of operation. The
Regional Office's official hours of business are Monday through Friday,
8:30 to 4:30, excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2006-0584, EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or e-
mail, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in 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, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9074. Mrs. LeSane can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Proposed Actions Is EPA Taking?
II. What Is the Background for EPA's Proposed Actions?
III. What Are the Criteria for Redesignation?
IV. Why Is EPA Proposing These Actions?
V. What Is the Effect of EPA's Proposed Actions?
VI. What Is EPA's Analysis of the Request?
[[Page 20967]]
VII. What Are the Proposed Regional MVEBs for the Bi-State
Louisville 8-Hour Ozone Area?
VIII. What Is the Status of EPA's Adequacy Determination for the
MVEBs for the Bi-State Louisville 8-Hour Ozone Area?
IX. Proposed Action on the Redesignation Request and Maintenance
Plan SIP Revision, Including Proposed Approval of the 2003 and 2020
MVEBs
X. Statutory and Executive Order Reviews
I. What Proposed Actions Is EPA Taking?
EPA is proposing to take three related actions, which are
summarized below and described in greater detail throughout the notice
of proposed rulemaking: (1) To redesignate the Kentucky Bi-State
Louisville Area to attainment for the 8-hour ozone NAAQS; (2) to
approve Kentucky's 8-hour ozone maintenance plan, including the
associated MVEBs; and (3) to notify the public that EPA is reviewing
regional MVEBs for adequacy.
First, EPA is proposing to determine that the Kentucky Bi-State
Louisville Area has attained the 8-hour ozone standard, and has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
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. Today's proposal 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 now
proposing to approve a request to change the legal designation of
Bullitt, Jefferson, and Oldham Counties in Kentucky from nonattainment
to attainment for the 8-hour ozone NAAQS.
Second, EPA is proposing to approve Kentucky's 8-hour ozone
maintenance plan for the Kentucky Bi-State Louisville Area (such
approval being one of the CAA criteria for redesignation to attainment
status). The maintenance plan is designed to help keep the Kentucky Bi-
State Louisville Area in attainment for the 8-hour ozone NAAQS through
2020. Consistent with the CAA, the maintenance plan that EPA is
proposing to approve today also includes 2003 and 2020 regional MVEBs
for NOX and VOCs. Therefore, EPA is proposing to approve the
2003 and 2020 regional MVEBs that are included as part of Kentucky's
maintenance plan. These regional MVEBs apply to both the Kentucky and
Indiana portions of this bi-State 8-hour ozone area.
Third, EPA is notifying the public in today's notice of proposed
rulemaking that EPA is reviewing the 2003 and 2020 regional MVEBs for
NOX and VOCs, as provided in the Kentucky submittal, for
adequacy pursuant to 40 CFR 93.118(f)(2). The public may comment at
this time on whether the proposed MVEBs meet the adequacy criteria
found in EPA's conformity regulations, 40 CFR 93.118(e).
Today's notice of proposed rulemaking is in response to Kentucky's
September 29, 2006, SIP submittal which supersedes Kentucky's June 7,
2006, submittal that included a request for parallel processing. The
September 29, 2006, submittal requested redesignation of the Kentucky
bi-State Louisville Area, and included a SIP revision addressing the
specific issues summarized above, and the necessary elements for
redesignation described in section 107(d)(3)(E).
II. What Is the Background for EPA's Proposed Actions?
Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOCs react in the presence of sunlight
to form ground-level ozone. NOX and VOCs are referred to as
precursors of ozone. The CAA establishes a process for air quality
management through the NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. Under EPA regulations at 40
CFR part 50, the 8-hour ozone standard is attained when the 3-year
average of the annual fourth highest daily maximum 8-hour average
ambient air quality ozone concentrations is less than or equal to 0.08
ppm (i.e., 0.084 ppm when rounding is considered). (See, 69 FR 23857
(April 30, 2004) for further information). Ambient air quality
monitoring data for the 3-year period must meet a data completeness
requirement. The ambient air quality monitoring data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90 percent, and no single year has less
than 75 percent data completeness as determined in Appendix I of part
50. Specifically, section 2.3 of 40 CFR part 50, Appendix I,
``Comparisons with the Primary and Secondary Ozone Standards'' states:
``The primary and secondary ozone ambient air quality standards
are met at an ambient air quality monitoring site when the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentration is less than or equal to 0.08 ppm. The number of
significant figures in the level of the standard dictates the
rounding convention for comparing the computed 3-year average annual
fourth-highest daily maximum 8-hour average ozone concentration with
the level of the standard. The third decimal place of the computed
value is rounded, with values equal to or greater than 5 rounding
up. Thus, a computed 3-year average ozone concentration of 0.085 ppm
is the smallest value that is greater than 0.08 ppm.''
The CAA required EPA to designate as nonattainment any area that
was violating the 8-hour ozone NAAQS based on the three most recent
years of ambient air quality data. The entire bi-State Louisville 8-
hour ozone nonattainment area was designated using 2001-2003 ambient
air quality data. The Federal Register document making these
designations was signed on April 15, 2004, and published on April 30,
2004 (69 FR 23857). The CAA contains two sets of provisions--subpart 1
and subpart 2--that address planning and control requirements for ozone
nonattainment areas. (Both are found in title I, part D.) Subpart 1
(which covers areas that EPA refers to as ``basic'' nonattainment)
contains general, less prescriptive, requirements for nonattainment
areas for any pollutant--including ozone--governed by a NAAQS. Subpart
2 (which covers areas that EPA refers to as ``classified''
nonattainment) provides more specific requirements for certain ozone
nonattainment areas. Some 8-hour ozone nonattainment areas are subject
only to the provisions of subpart 1. Other 8-hour ozone nonattainment
areas are also subject to the provisions of subpart 2. Under EPA's
Phase 1 8-hour ozone implementation rule (69 FR 23857) (Phase 1 Rule),
signed on April 15, 2004 and published on April 30, 2004, an area was
classified under subpart 2 based on its 8-hour ozone design value
(i.e., the 3-year average of the annual fourth-highest daily maximum 8-
hour average ozone concentrations), if it had a 1-hour design value at
or above 0.121 ppm (the lowest 1-hour design value in Table 1 of
subpart 2). All other areas are covered under subpart 1, based upon
their 8-hour ambient air quality design values.
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. South Coast Air Quality Management Dist. (SCAQMD) v. EPA, 472
F.3d 882 (D.C. Cir. 2006). The D.C. Circuit Court held that certain
[[Page 20968]]
provisions of EPA's Phase I Rule were inconsistent with the
requirements of the CAA. The Court rejected EPA's reasons for
implementing the 8-hour standard in nonattainment areas under subpart 1
in lieu of subpart 2 of title I, part D of the CAA. The Court also held
that EPA improperly failed to retain four measures required for 1-hour
nonattainment areas under the anti-backsliding provisions of EPA's
regulations: (1) Nonattainment area New Source Review (NSR)
requirements based on an area's 1-hour nonattainment classification;
(2) CAA 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 CAA, on the contingency of an area not
making reasonable further progress toward attainment of the 1-hour
NAAQS, or for failure to attain that NAAQS; and (4) certain conformity
requirements for certain types of Federal actions. The D.C. Circuit
Court upheld EPA's authority to revoke the 1-hour standard provided
that there were adequate anti-backsliding provisions in place.
This section sets forth EPA's views on the potential effect of the
Court's ruling on this redesignation action. For the reasons described
throughout this notice of proposed rulemaking, EPA does not believe
that the D.C. Circuit Court's ruling alters any requirements relevant
to the redesignation of the Kentucky Bi-State Louisville Area so as to
preclude redesignation, and does not prevent EPA from proposing to
finalize, or finalizing, the Louisville redesignation. EPA believes
that the Court's decision, as it currently stands or as it may be
modified based upon the petitions for rehearing that have been filed,
imposes no impediment to moving forward with redesignation of the
Kentucky Bi-State Louisville Area to attainment, because redesignation
is appropriate under the relevant redesignation provisions of the CAA
and longstanding policies regarding redesignation requests.
The Kentucky Bi-State Louisville Area was originally designated as
moderate nonattainment for the 1-hour ozone standard in November 6,
1991 (56 FR 56694). The Area was redesignated as attainment for the 1-
hour ozone standard on October 23, 2001 (66 FR 53665). On April 30,
2004, EPA designated the Kentucky Bi-State Louisville Area as a
``basic'' 8-hour ozone nonattainment area. (69 FR 23857).
The D.C. Circuit Court's decision in 2006 also addressed the 8-hour
ozone classification scheme. The Court rejected EPA's reasons for
classifying areas under subpart 1 for the 8-hour standard, and remanded
that matter to the Agency. Consequently, it is possible that the
Kentucky Bi-State Louisville area could, as a result of the remand to
EPA, be reclassified under subpart 2. Although any future decision by
EPA to classify this area under subpart 2 might trigger additional
future requirements for the area, this does not mean that redesignation
cannot go forward now. EPA's position is based upon: (1) EPA's
longstanding policy of evaluating requirements in accordance with the
requirements due at the time that the request is submitted; and (2)
consideration of the inequity of retroactively applying any
requirements that might be applied in the future.
In September 2006, when Kentucky submitted its final redesignation
request, the Kentucky Bi-State Louisville Area was classified under
subpart 1 of the CAA, and was obligated to meet only the subpart 1
requirements. Under EPA's longstanding interpretation of section
107(d)(3)(E) of the CAA, to qualify for redesignation, States
requesting redesignation to attainment must meet only the relevant SIP
requirements that came due prior to the submittal of a complete
redesignation request. See, ``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, September 4, 1992; see also,
Michael Shapiro Memorandum, ``SIP Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide NAAQS On or After November 15, 1992,'' Memorandum from Michael
H. Shapiro, Acting Assistant Administrator for Air and Radiation,
September 17, 1993; and 60 FR 12459, 12465-66 (March 7,
1995)(redesignation of Detroit-Ann Arbor). See, Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004), which upheld this interpretation. See also,
68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis,
Missouri).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit Court recognized the general inequity in
retroactive rulemakings in Sierra Club v. Whitman, 285 F. 3d 63 (D.C.
Cir. 2002), in which the D.C. Circuit Court upheld a district court's
refusal to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. In
Sierra Club, the D.C. Circuit Court stated, ``[a]lthough EPA failed to
make the nonattainment determination within the statutory time frame,
Sierra Club's proposed solution only makes the situation worse.
Retroactive relief would likely impose large costs on the States, which
would face fines and suits for not implementing air pollution
prevention plans in 1997, even though they were not on notice at the
time.'' Id. at 68. Similarly, with regard to Kentucky's redesignation
request, it would be unfair to penalize Kentucky by retroactively
applying to it for purposes of redesignation, additional SIP
requirements under subpart 2 that were not in effect at the time it
submitted its redesignation request, and that are not currently in
effect, but that might be in effect as a result of the D.C. Circuit
Court's remand.
With respect to the requirements under the 1-hour standard ozone
standard, the Kentucky Bi-State Louisville Area was originally
designated as moderate nonattainment for the 1-hour ozone standard in
November 6, 1991 (56 FR 56694). The Area was redesignated as attainment
for the 1-hour ozone standard on October 23, 2001 (66 FR 53665).
Therefore, the Kentucky Bi-State Louisville Area was designated to
attainment of the 1-hour ozone standard prior to its nonattainment
designation for the 8-hour ozone standard. As a result, it is
considered to be a 1-hour attainment area subject to a CAA section 175A
maintenance plan for the 1-hour standard. The D.C. Circuit Court's
ruling does not impact redesignation requests for these types of areas
for two main reasons.
First, there are no conformity requirements relevant for the
Louisville redesignation request, such as a transportation conformity
SIP.\1\ It is EPA's longstanding policy position that it is reasonable
to interpret the conformity SIP requirements as not applying for
purposes of evaluating a redesignation request under section 107(d)
because State conformity rules are still required after redesignation,
and Federal conformity rules apply where State rules have not been
approved. See, 40 CFR 51.390; see also, Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001) (upholding EPA's interpretation).
[[Page 20969]]
See also, 60 FR 62748 (Dec. 7, 1995) (redesignation of Tampa, Florida).
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\1\ CAA section 176(c)(4)(E) requires states to submit revisions
to their SIPs to reflect certain federal criteria and procedures for
determining transportation conformity. Transportation conformity
SIPs are different from the motor vehicle emissions budgets that are
established in control strategy SIPs and maintenance plans.
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Second, with regard to the three other anti-backsliding provisions
for the 1-hour standard that the D.C. Circuit Court found were not
properly retained, the Kentucky Bi-State Louisville Area is an
attainment area subject to a maintenance plan for the 1-hour standard,
and the NSR, contingency measure (pursuant to section 172(c)(9) or
182(c)(9)), and fee provision requirements no longer apply to this area
because it was redesignated to attainment of the 1-hour standard. As a
result, the decision in SCAQMD should not alter any requirements that
would preclude EPA from finalizing the redesignation of Kentucky Bi-
State Louisville Area to attainment for the 8-hour ozone standard.
As noted earlier, in 2005, the ambient ozone data for the Kentucky
Bi-State Louisville Area indicated no further violations of the 8-hour
ozone NAAQS, using data from the 3-year period of 2003-2005 to
demonstrate attainment. As a result, on September 29, 2006, Kentucky
requested redesignation of the Kentucky Bi-State Louisville Area to
attainment for the 8-hour ozone NAAQS. The redesignation request
included three years of complete, quality-assured ambient air quality
data for the ozone seasons (March 1st until October 31st) of 2003-2005,
indicating that the 8-hour ozone NAAQS has been achieved for the entire
Bi-State Louisville area. Under the CAA, nonattainment areas may be
redesignated to attainment if sufficient, complete, quality-assured
data is available for the Administrator to determine that the area has
attained the standard and the area meets the other CAA redesignation
requirements in section 107(d)(3)(E).
III. What Are the Criteria for Redesignation?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation providing that: (1) The Administrator
determines that the area has attained the applicable NAAQS; (2) the
Administrator has fully approved the applicable implementation plan for
the area under section 110(k); (3) the Administrator determines that
the improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
SIP and applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (4) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
section 175A; and, (5) the State containing such area has met all
requirements applicable to the area under section 110 and part D of the
CAA.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
1. ``Ozone and Carbon Monoxide Design Value Calculations,''
Memorandum from Bill Laxton, Director, Technical Support Division, June
18, 1990;
2. ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G. T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
3. ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
4. ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (hereafter referred to as the
``Calcagni Memorandum'');
5. ``State Implementation Plan (SIP) Actions Submitted in Response
to Clean Air Act Deadlines,'' Memorandum from John Calcagni, Director,
Air Quality Management Division, October 28, 1992;
6. ``Technical Support Documents (TSD's) for Redesignation of Ozone
and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T.
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
7. `` State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On
or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
8. ``Use of Actual Emissions in Maintenance Demonstrations for
Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry,
Acting Director, Air Quality Management Division, November 30, 1993;
9. ``Part D New Source Review (Part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
10. ``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.
IV. Why Is EPA Proposing These Actions?
On September 29, 2006, Kentucky requested redesignation of the
Kentucky Bi-State Louisville Area from nonattainment to attainment for
the 8-hour ozone NAAQS. EPA's evaluation indicates that Kentucky has
demonstrated that the Kentucky Bi-State Louisville Area has attained
the 8-hour ozone standard and has met the requirements for
redesignation set forth in section 107(d)(3)(E) of the CAA. EPA is also
notifying the public of its review of the adequacy of the proposed
regional MVEBs, which is relevant to the requested redesignation.
V. What Is the Effect of EPA's Proposed Actions?
EPA's proposed actions establish the basis upon which EPA may take
final action on the three issues being proposed for approval today.
Approval of Kentucky's redesignation request would change the official
designation of Bullitt, Jefferson, and Oldham Counties in Kentucky for
the 8-hour ozone NAAQS found at 40 CFR part 81. Approval of Kentucky's
request would also incorporate into the Kentucky SIP, a plan for
maintaining the 8-hour ozone NAAQS in the Kentucky Bi-State Louisville
Area through 2020. The maintenance plan includes contingency measures
to remedy future violations of the 8-hour ozone NAAQS. The maintenance
plan also establishes regional MVEBs of 40.97 tons per day (tpd) for
VOC and 95.51 tpd for NOX for the year 2003, and MVEBs of
22.92 tpd for VOC and 29.46 tpd for NOX for the year 2020.
Approval of Kentucky's maintenance plan would also result in approval
of the regional MVEBs. Additionally, EPA is notifying the public that
it is reviewing the adequacy of the proposed regional MVEBs pursuant to
40 CFR 93.118(f)(2).
VI. What Is EPA's Analysis of the Request?
EPA is proposing to make the determination that the Kentucky Bi-
State Louisville Area has attained the 8-
[[Page 20970]]
hour ozone NAAQS, and that all other redesignation criteria have been
met. The basis for EPA's determination is discussed in greater detail
below.
(1) The Kentucky Bi-State Louisville Area Has Attained the 8-Hour Ozone
NAAQS
EPA is proposing to determine that the Kentucky Bi-State Louisville
Area has attained the 8-hour ozone NAAQS. For ozone, an area may be
considered to be attaining the 8-hour ozone NAAQS if there are no
violations, as determined in accordance with 40 CFR 50.10 and Appendix
I of part 50, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain this standard,
the 3-year average of the fourth-highest daily maximum 8-hour average
ozone concentrations measured at each monitor within an area over each
year must not exceed 0.08 ppm. Based on the rounding convention
described in 40 CFR part 50, Appendix I, the standard is attained if
the design value is 0.084 ppm or below. The data must be collected and
quality-assured in accordance with 40 CFR part 58, and recorded in the
EPA Air Quality System (AQS). The monitors generally should have
remained at the same location for the duration of the monitoring period
required for demonstrating attainment.
EPA reviewed ozone monitoring data from ambient ozone monitoring
stations in the bi-State Louisville area for the ozone season from
2003-2005. This data has been quality assured and is recorded in AQS.
The fourth high averages for 2003, 2004 and 2005, and the 3-year
average of these values (i.e., design value), are summarized in Table 1
below.
Table 1.--Annual 4th Max High and Design Value for 8-Hour Ozone for Bi-State Louisville Area
[parts per million, ppm]
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Design
Monitor County 2003 2004 2005 value
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Charleston, IN...................... Clark................. 0.090 0.074 0.080 0.081
New Albany, IN...................... Floyd................. 0.086 0.071 0.080 0.079
WLKY, KY............................ Jefferson............. 0.073 0.068 0.074 0.071
Watson, KY.......................... Jefferson............. 0.075 0.070 0.085 0.076
Bates, KY........................... Jefferson............. 0.072 0.070 0.079 0.073
Shepherdsville, KY.................. Bullitt............... 0.072 0.068 0.080 0.073
Buckner, KY......................... Oldham................ 0.082 0.076 0.089 0.082
----------------------------------------------------------------------------------------------------------------
As discussed above, the design value for an area is the highest
design value recorded at any monitor in the area. Therefore, the design
value for the Kentucky Louisville Bi-State Area is 0.082 ppm, which
meets the 8-hour ozone NAAQS. Additionally, preliminary air quality
data from the 2006 monitoring season indicates that the Kentucky
Louisville Bi-State Area is continuing to attain the 8-hour ozone
standard. As is discussed in more detail below, KDAQ has indicated a
commitment to continue monitoring in the Kentucky Bi-State Louisville
Area in accordance with 40 CFR part 58. The data submitted by Kentucky
provides an adequate demonstration that the Kentucky Bi-State
Louisville Area has attained the 8-hour ozone NAAQS.
(2) Kentucky Has a Fully Approved SIP Under Section 110(k) for the
Three Affected Counties and (5) Has Met All Applicable Requirements
Under Section 110 and Part D of the CAA
Below is a summary of how these two criteria were met.
EPA has determined that Kentucky has met all applicable SIP
requirements for Bullitt, Jefferson and Oldham Counties under section
110 of the CAA (general SIP requirements). EPA has also determined that
the Kentucky SIP satisfies the criterion that it meets applicable SIP
requirements under part D of title I of the CAA (requirements specific
to subpart 1 basic 8-hour ozone nonattainment areas), in accordance
with section 107(d)(3)(E)(v). In addition, EPA has determined that the
SIP is fully approved with respect to all applicable requirements in
accordance with section 107(d)(3)(E)(ii). In making these
determinations, EPA ascertained which requirements are applicable to
the Area and that if applicable, they are fully approved under section
110(k). SIPs must be fully approved only with respect to applicable
requirements.
a. Bullitt, Jefferson and Oldham Counties in Kentucky Have Met All
Applicable Requirements Under Section 110 and Part D of the CAA
The September 4, 1992, Calcagni Memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' September 4,
1992) describes EPA's interpretation of section 107(d)(3)(E).
Consistent with this interpretation, to qualify for redesignation,
States requesting redesignation to attainment must meet only the
relevant CAA requirements that come due prior to the submittal of a
complete redesignation request. See also, Michael Shapiro Memorandum
(``SIP Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide NAAQS On or After November
15, 1992,'' September 17, 1993), and 60 FR 12459, 12465-66 (March 7,
1995) (redesignation of Detroit-Ann Arbor, Michigan). Applicable
requirements of the CAA that come due subsequent to the area's
submittal of a complete redesignation request remain applicable until a
redesignation is approved, but are not required as a prerequisite to
redesignation. See, section 175A(c) of the CAA; Sierra Club, 375 F.3d
537 (7th Cir. 2004); see also, 68 FR 25424, 25427 (May 12, 2003)
(redesignation of St. Louis, Missouri).
General SIP requirements. Section 110(a)(2) of title I of the CAA
delineates the general requirements for a SIP, which include
enforceable emissions limitations and other control measures, means,
techniques, or provisions for the establishment and operation of
appropriate devices necessary to collect data on ambient air quality,
and programs to enforce the limitations. General SIP elements and
requirements are delineated in section 110(a)(2) of title I, part A of
the CAA. These requirements include, but are not limited to, the
following: submittal of a SIP that has been adopted by the State after
reasonable public notice and hearing; provisions for establishment and
operation of appropriate procedures needed to monitor ambient air
quality; implementation of a source permit program; provisions for the
implementation of part C requirements (Prevention of Significant
Deterioration (PSD)) and provisions for the implementation of part D
requirements (New Source Review (NSR) permit
[[Page 20971]]
programs); provisions for air pollution modeling; and provisions for
public and local agency participation in planning and emission control
rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a State from significantly contributing to air
quality problems in another State. To implement this provision, EPA has
required certain States to establish programs to address the transport
of air pollutants (NOX SIP Call, Clean Air Interstate Rule
(CAIR)). EPA has also found, generally, that States have not submitted
SIPs under section 110(a)(1) to meet the interstate transport
requirements of section 110(a)(2)(D)(i). However, the section
110(a)(2)(D) requirements for a State are not linked with a particular
nonattainment area's designation and classification in that State. EPA
believes that the requirements linked with a particular nonattainment
area's designation and classifications are the relevant measures to
evaluate in reviewing a redesignation request. The transport SIP
submittal requirements, where applicable, continue to apply to a State
regardless of the designation of any one particular area in the State.
Thus, we do not believe that the CAA's interstate transport
requirements should be construed to be applicable requirements for
purposes of redesignation.
In addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The State will still be subject to these requirements
after the area is redesignated. The section 110 and part D
requirements, which are linked with a particular area's designation and
classification, are the relevant measures to evaluate in reviewing a
redesignation request. This approach is consistent with EPA's existing
policy on applicability (i.e., for redesignations) of conformity and
oxygenated fuels requirements, as well as with section 184 ozone
transport requirements. See, Reading, Pennsylvania, proposed and final
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458,
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748,
December 7, 1995). See also, the discussion on this issue in the
Cincinnati, Ohio redesignation (65 FR 37890, June 19, 2000), and in the
Pittsburgh, Pennsylvania redesignation (66 FR 50399, October 19, 2001).
EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
Any section 110 requirements that are linked to the part D requirements
for 8-hour ozone nonattainment areas are not yet due, since, as
explained below, no part D requirements for the 8-hour standard became
due prior to submission of the redesignation request. Therefore, as
discussed earlier, for purposes of redesignation, they are not
considered applicable requirements. Nonetheless, EPA notes that it has
previously approved provisions into the Kentucky SIP addressing section
110 elements under the 1-hour ozone NAAQS (47 FR 30059, July 12, 1982).
EPA believes that the section 110 SIP approved for the 1-hour ozone
NAAQS is also sufficient to meet the requirements under the 8-hour
ozone NAAQS (as well as satisfying the issues raised by the D.C.
Circuit Court in the SCAQMD case).
Part D requirements. EPA has also determined that the Kentucky SIP
meets applicable SIP requirements under part D of the CAA since no
requirements became due prior to the submission of the area's
redesignation request. Sections 172-176 of the CAA, found in subpart 1
of part D, set forth the basic nonattainment requirements applicable to
all nonattainment areas. Section 182 of the CAA, found in subpart 2 of
part D, establishes additional specific requirements depending on the
area's nonattainment classification. Subpart 2 is not applicable to the
Kentucky Bi-State Louisville Area.
Part D, subpart 1 applicable SIP requirements. For purposes of
evaluating Kentucky's redesignation request, the applicable part D,
subpart 1 SIP requirements for all nonattainment areas are contained in
sections 172(c)(1)-(9). A thorough discussion of the requirements
contained in section 172 can be found in the General Preamble for
Implementation of Title I (57 FR 13498). No requirements applicable for
purposes of redesignation under part D became due prior to the
submission of the redesignation request, and therefore none are
applicable to the area for purposes of redesignation. For example, the
requirements for an attainment demonstration that meets the
requirements of section 172(c)(1) are not yet applicable, nor are the
requirements for Reasonably Achievable Control Technology (RACT) and
Reasonably Available Control Measures (RACM) (section 172(c)(1)),
reasonable further progress (RFP) (section 172(c)(2)), or contingency
measures (section 172(c)(9)).
In addition to the fact that no part D requirements applicable for
purposes of redesignation became due prior to submission of the
redesignation request, and therefore are not applicable, EPA believes
it is reasonable to interpret the conformity and NSR requirements as
not requiring approval prior to EPA final action approving the
redesignation.
Section 176 Conformity Requirements: Section 176(c) of the CAA
requires States to establish criteria and procedures to ensure that
Federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. The requirement to determine
conformity applies to transportation plans, programs and projects
developed, funded or approved under title 23 of the United States Code
(U.S.C.) and the Federal Transit Act (``transportation conformity'') as
well as to all other Federally supported or funded projects (``general
conformity''). State conformity revisions must be consistent with
Federal conformity regulations relating to consultation, enforcement
and enforceability that the CAA required the EPA to promulgate.
EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) because State conformity
rules are still required after redesignation and Federal conformity
rules apply where State rules have not been approved. See, Wall, 265
F.3d 426 (upholding this interpretation). See also, 60 FR 62748 (Dec.
7, 1995, Tampa, Florida).
EPA has also determined that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without a part D NSR program in effect since PSD requirements
will apply after redesignation. The rationale for this view is
described in a Memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled ``Part D New
Source Review (Part D NSR) Requirements for Areas Requesting
Redesignation to Attainment.'' Kentucky has demonstrated that the area
will be able to maintain the standard without a part D NSR program in
effect, and therefore, Kentucky need not have a fully approved part D
NSR program prior to approval of the redesignation request. EPA most
recently approved Kentucky's NSR program (including a nonattainment NSR
and PSD program) into the Kentucky SIP on July 11, 2006 (71 FR 38990).
Kentucky's PSD program
[[Page 20972]]
will become effective in the Kentucky Bi-State Louisville Area upon
final redesignation to attainment. See, rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorraine,
Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR
53665, October 23, 2001); Grand Rapids, Michigan (61 FR 31834-31837,
June 21, 1996). Thus, the Kentucky Bi-State Louisville Area has
satisfied all applicable requirements for purposes of redesignation
under section 110 and part D of the CAA.
b. The Area Has a Fully Approved Applicable SIP Under Section 110(k) of
the CAA
EPA has fully approved the applicable Kentucky SIP for Bullitt,
Jefferson and Oldham Counties in Kentucky under section 110(k) of the
CAA for all requirements applicable for purposes of redesignation. EPA
may rely on prior SIP approvals in approving a redesignation request,
see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth
Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265
F.3d 426; plus any additional measures it may approve in conjunction
with a redesignation action. See, 68 FR 25426 (May 12, 2003), and
citations contained therein. Following the passage of the CAA of 1970
by the U.S. Congress, Kentucky adopted and submitted, and EPA has fully
approved at various times, provisions addressing the various 1-hour
ozone standard SIP elements applicable in the Bullitt, Jefferson and
Oldham Counties in the Kentucky Bi-State Louisville Area (66 FR 53665,
October 23, 2001).
As indicated above, EPA believes that the section 110 elements not
connected with nonattainment plan submissions and not linked to the
area's nonattainment status are not applicable requirements for
purposes of redesignation. EPA also believes that since the part D
requirements applicable for purposes of redesignation did not become
due prior to submission of the redesignation request, they also are
therefore not applicable requirements for purposes of redesignation.
(3) The Air Quality Improvement in the Kentucky Bi-State Louisville
Area Is Due to Permanent and Enforceable Reductions in Emissions
Resulting From Implementation of the SIP and Applicable Federal Air
Pollution Control Regulations and Other Permanent and Enforceable
Reductions
EPA believes that Kentucky has demonstrated that the observed air
quality improvement in the area is due to permanent and enforceable
reductions in emissions resulting from implementation of the SIP,
Federal measures, and other State-adopted measures. EPA has determined
that the implementation of the following permanent and enforceable
emissions controls, that occurred from 2002-2005, have reduced local
NOX and VOC emissions and brought the area into attainment:
2002-2005 Emission Reduction Programs
------------------------------------------------------------------------
-------------------------------------------------------------------------
Highway Mobile Source Reductions
------------------------------------------------------------------------
Federal Motor Vehicle Control Programs (FMVCP).
Tier 2 Vehicle Emissions and Fuel Standards
Heavy Duty Engine, Vehicle and Fuel Standards.
Point Source Emissions Reductions.
------------------------------------------------------------------------
Reasonably Available Control Measures (RACM).
Maximum Available Control Technology (MACT).
------------------------------------------------------------------------
Area Source Reductions.
------------------------------------------------------------------------
Open burning regulations for former 1-hour ozone area.
------------------------------------------------------------------------
Additional Reductions
------------------------------------------------------------------------
NOX SIP Call Reductions
------------------------------------------------------------------------
Notably, no credit specific emission reduction is being claimed in the
SIP for the NOX SIP call reductions although this program
has resulted in measurable emissions reductions.
Kentucky has demonstrated that the implementation of permanent and
enforceable emissions controls have reduced local VOC and
NOX emissions. Most of the reductions are attributable to
Federal programs such as EPA's Tier 2/Low Sulfur Gasoline program and
other national clean fuel programs that began implementation in 2004.
Additionally, Kentucky has indicated in its September 2006 SIP
submittal that the Kentucky Bi-State Louisville Area has benefited from
emissions reductions that have been achieved, and will continue to be
achieved, through the implementation of the NOX SIP Call,
beginning in 2002. Kentucky has further demonstrated that year-to-year
meteorological changes and trends are not the likely source of the
overall, long-term improvements in ozone levels. In addition, the
following non-highway mobile source reduction programs were implemented
during the 2002-2004 period: small spark-ignition engines, large-spark
ignition engines, locomotives and land-base diesel engines. EPA
believes that permanent and enforceable emissions reductions, in and
surrounding the nonattainment area, are the cause of long-term
improvements in ozone levels, and are the cause of the Kentucky Bi-
State Louisville Area achieving attainment of the 8-hour ozone
standard.
(4) The Area Has a Fully Approved Maintenance Plan Pursuant to Section
175A of the CAA
In its request to redesignate Bullitt, Jefferson and Oldham
Counties in Kentucky to attainment, KDAQ submitted a SIP revision to
provide for the maintenance of the 8-hour ozone NAAQS in the Kentucky
Bi-State Louisville Area for at least 10 years after the effective date
of redesignation to attainment.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after the Administrator
approves a redesignation to attainment. Eight years after the
redesignation, Kentucky must submit a revised maintenance plan which
demonstrates that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni Memorandum provides additional guidance on the
content of a maintenance plan. The Calcagni Memorandum explains that an
ozone maintenance plan should address five requirements: The attainment
emissions inventory, maintenance demonstration, monitoring,
verification of continued attainment, and a contingency plan. As is
discussed more fully below, Kentucky's maintenance plan includes all
the necessary components and is approvable as part of the redesignation
request.
b. Attainment Emissions Inventory
In coordination with Indiana, Kentucky selected 2003 as ``the
[[Page 20973]]
attainment year'' for the Kentucky Bi-State Louisville Area for the
purposes of demonstrating attainment of the 8-hour ozone NAAQS. This
attainment inventory identifies the level of emissions in the area
which is necessary to attain the 8-hour ozone standard. The 2003 VOC
and NOX emissions (as well as the emissions for other years)
for Bullitt, Jefferson and Oldham Counties in Kentucky were developed
consistent with EPA guidance, and are summarized in the table in the
following subsection.
c. Maintenance Demonstration
The September 29, 2006, SIP submittal includes a maintenance plan
for the Kentucky Bi-State Louisville Area. This demonstration:
(i) Shows compliance with and maintenance of the 8-hour ozone
standard by assuring that current and future emissions of VOC and
NOX will remain at or below attainment year 2003 emissions
levels. The year 2003 was chosen as the attainment year because it is
one of the most recent three years (i.e., 2003, 2004, and 2005) for
which the Kentucky Bi-State Louisville Area has clean air quality data
for the 8-hour ozone standard.
(ii) Uses 2003 as the attainment year and includes actual emissions
for 2003 and 2005, and future emission inventory projections for 2008,
2011, 2014, 2017, and 2020.
(iii) Identifies an ``out year'' at least 10 years after the time
necessary for EPA to review and approve the maintenance plan. In
accordance with 40 CFR part 93, regional MVEBs for NOX and
VOCs were established for the last year of the maintenance plan (in
addition to 2003).
(iv) Provides the following actual and projected emissions
inventories for the Kentucky portion of the bi-State Louisville
nonattainment area. See, Tables 2 and 3. For informational purposes, a
summary of the actual and projected emissions inventories for the
entire bi-State area are also provided. See, Tables 4 and 5.
Table 2.--Actual and Projected VOC Emissions for Bullitt, Jefferson and Oldham Counties
[Tons per day]
----------------------------------------------------------------------------------------------------------------
Categories 2003 2005 2008 2011 2014 2017 2020
----------------------------------------------------------------------------------------------------------------
Point
Bullitt.......................................... 8.10 8.21 8.39 8.58 8.77 8.95 9.16
Jefferson........................................ 23.63 23.62 23.55 23.33 23.15 22.96 22.74
Oldham........................................... 0.72 0.73 0.75 0.76 0.78 0.79 0.81
--------------------------------------------------------------
Point Subtotal............................... 32.45 32.56 32.69 32.67 32.70 32.70 32.71
Area
Bullitt.......................................... 3.34 3.43 3.60 3.75 3.92 4.09 4.26
Jefferson........................................ 17.33 17.41 17.51 17.59 17.67 17.76 17.85
Oldham........................................... 2.46 2.55 2.70 2.82 3.01 3.16 3.32
--------------------------------------------------------------
Area Subtotal................................ 23.13 23.39 23.81 24.16 24.60 25.01 25.43
Mobile*
Bullitt.......................................... 3.74 3.43 2.87 2.52 2.30 2.18 2.05
Jefferson........................................ 25.34 23.04 19.22 15.49 12.24 10.52 9.52
Oldham........................................... 2.29 2.16 1.79 1.56 1.45 1.40 1.34
--------------------------------------------------------------
Mobile Subtotal.............................. 31.37 28.63 23.88 19.57 15.99 14.10 12.91
Nonroad
Bullitt.......................................... 1.77 1.91 1.91 1.82 1.69 1.49 1.36
Jefferson........................................ 14.31 13.14 11.50 10.62 10.41 10.45 10.64
Oldham........................................... 1.54 1.38 1.18 1.08 1.06 1.06 1.08
--------------------------------------------------------------
Nonroad Total................................ 17.62 16.43 14.59 13.52 13.16 13.00 13.08
--------------------------------------------------------------
Total.................................... 104.57 101.01 94.97 89.92 86.45 84.81 84.13
----------------------------------------------------------------------------------------------------------------
Table 3.--Actual and Projected NOX Emissions for Bullitt, Jefferson and Oldham Counties
[Tons per day]
----------------------------------------------------------------------------------------------------------------
Categories 2003 2005 2008 2011 2014 2017 2020
----------------------------------------------------------------------------------------------------------------
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
--------------------------------------------------------------
Point Subtotal............................... 75.47 54.65 54.36 51.66 52.54 52.05 47.31
Area
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
--------------------------------------------------------------
Area Subtotal................................ 0.93 0.94 0.95 0.96 0.98 0.98 0.99
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
[[Page 20974]]
Oldham........................................... 4.43 4.36 3.58 2.88 2.34 1.96 1.72
--------------------------------------------------------------
Mobile Subtotal.............................. 75.24 66.55 51.12 37.33 25.94 19.00 15.47
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
--------------------------------------------------------------
Nonroad Total................................ 35.38 34.48 32.55 30.34 27.95 25.86 24.39
--------------------------------------------------------------
Total.................................... 187.02 156.62 138.98 120.29 107.41 97.89 88.16
----------------------------------------------------------------------------------------------------------------
Table 4.--Attainment Year and End-Year VOC Emissions for Bi-State
Louisville 8-Hour Ozone Area
[Tons per day] *
------------------------------------------------------------------------
2003 2020
------------------------------------------------------------------------
Kentucky...................................... 104.57 84.13
Indiana....................................... 29.26 ** 27.91
-------------------------
Total..................................... 133.83 112.04
=========================
Safety Margin................................. n/a 21.79
------------------------------------------------------------------------
* Emissions inventories, as provided by Kentucky, for this table and
Table 2 may be slightly different due to rounding conventions.
** This total reflects the VOC emissions for Indiana as submitted in the
Indiana SIP and is an update to the total of 27.65 as provided in the
Kentucky submittal.
Table 5.--Attainment Year and End-Year NOX Emissions for Bi-State
Louisville 8-Hour Ozone Area
[Tons per day] *
------------------------------------------------------------------------
2003 2020
------------------------------------------------------------------------
Kentucky...................................... 187.02 88.16
Indiana....................................... 51.77 ** 38.10
-------------------------
Total..................................... 238.79 126.26
=========================
Safety Margin................................. n/a 112.53
------------------------------------------------------------------------
* Emissions inventories, as provided by Kentucky, for this table and
Table 3 may be slightly different due to rounding conventions.
** This total reflects the NOX emissions for Indiana as submitted in the
Indiana SIP and is an update to the total of 38.11 as provided in the
Kentucky submittal.
A safety margin is the difference between the attainment level of
emissions (from all sources) and the projected level of emissions (from
all sources) in the maintenance area. The attainment level of emissions
is the level of emissions during one of the years in which the area met
the NAAQS. Kentucky and Indiana have collectively decided to allocate a
portion of the available safety margin to the regional 2020 MVEBs for
VOC and NOX. This allocation and the remaining available
safety margin for this bi-State area are discussed further in section
VII of this rulemaking.
d. Monitoring Network
There are currently seven monitors measuring ozone in the entire
bi-State Louisville 8-hour ozone area--two in Indiana and five in
Kentucky. KDAQ has committed in the maintenance plan to continue
operation of the Kentucky monitors in compliance with 40 CFR part 58,
and has addressed the requirement for monitoring. Indiana has provided
a similar commitment for the monitors in Clark and Floyd Counties.
e. Verification of Continued Attainment
Kentucky has the legal authority to enforce and implement the
requirements of the ozone maintenance plan for the Kentucky Bi-State
Louisville Area. This includes the authority to adopt, implement and
enforce any subsequent emissions control contingency measures
determined to be necessary to correct future ozone attainment problems.
Kentucky will track the progress of the maintenance plan by
performing future reviews of actual emissions for the area using the
latest emissions factors, models and methodologies. For these periodic
inventories Kentucky will review the assumptions made for the purpose
of the maintenance demonstration concerning projected growth of
activity levels. If any of these assumptions appear to have changed
substantially, Kentucky will re-project emissions. Following the
redesignation of the area, sources are prohibited from reducing
emission controls already in place when attainment is achieved unless
EPA approves a SIP revision consistent with section 110 of the CAA.
Kentucky and EPA have instituted the following programs that will
remain enforceable and are included as part of Kentucky's September
2006 SIP submittal, to maintain air quality which meets the NAAQS for
the 8-hour ozone standard.
All new major VOC or NOX sources locating in
Kentucky shall, as a minimum, apply control procedures that are
reasonable, available, and practical;
All major modifications to existing major VOC or
NOX sources are subject to RACT requirements as well as the
best available control technology (BACT) requirement of the KDAQ and
Louisville Metro Air Pollution Control District (LMAPCD) PSD
regulations;
All new affected facilities with the potential to emit
more than 5 tons per year of VOC are required to comply with the
Jefferson County Air Pollution Control Commission Regulation Number 7
regarding emissions of VOCs;
Continuation of the rule effectiveness programs to enhance
inspection of stationary sources to ensure emission control equipment
is functioning properly and compliance is maintained (Jefferson
County);
Stage I vapor recovery in former 1-hour maintenance
portions of Bullitt and Oldham counties;
Stage II vapor recovery (Jefferson County);
Federal Motor Vehicle Control Standards;
Louisville Metro Air Pollution Control District (LMAPCD)
Amended Board Order with the Kosmos Cement Company to comply with an
allowed emission rate for the cement kiln that is more stringent than
the previous Kentucky SIP NOX RACT limit;
Reformulated Gasoline Phase II in effect in Jefferson
County and the former 1-Hour Maintenance portions of Bullitt and Oldham
counties since January 1, 2000;
Transportation conformity requirements;
PSD requirements;
Federal controls on certain nonroad engines (e.g. diesel
and other Federal requirements, industrial diesel equipment,
locomotives) after 2000;
[[Page 20975]]
Federal controls on the VOC content for architectural and
maintenance paints, auto body shops and consumer products;
The Kentucky open burning rule to further limit types of
burning in the former 1-hour Maintenance portions of Bullitt and Oldham
Counties.
In addition to these measures, Kentucky explains in its submittal
that further reductions will be achieved through the continued
implementation of new Federal regulations to further control the
emissions of hazardous air pollutants that are VOCs (40 CFR part 63--
NESHAPS).
f. Contingency Plan
The contingency plan provisions of the maintenance plan are
designed to promptly correct a violation of the NAAQS that occurs after
redesignation to attainment. Section 175A of the CAA requires that a
maintenance plan include such contingency measures as EPA deems
necessary to assure that a State will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the contingency measures to be adopted, a schedule and
procedure for adoption and implementation, and a time limit for action
by the State. A State should also identify specific indicators to be
used to determine when the contingency measures need to be implemented.
The maintenance plan must include a requirement that a State will
implement all measures with respect to control of the pollutant that
were contained in the SIP before redesignation of the area to
attainment in accordance with section 175A(d). This requirement is met
because all SIP measures are retained for maintenance. Kentucky's
submittal satisfies all the contingency plan requirements described in
section 175A of the CAA.
In its September 29, 2006, SIP submittal, Kentucky affirms that a
combination of all programs already instituted by Kentucky and EPA have
resulted in cleaner air in the Kentucky Bi-State Louisville Area and
the anticipated future benefits from these programs are expected to
result in continued maintenance of the 8-hour ozone NAAQS in this area.
Sources are prohibited from terminating emissions controls following
the redesignation of the Kentucky Bi-State Louisville Area unless EPA
approves a SIP revision consistent with section 110 of the CAA. The
contingency plan includes tracking and triggering mechanisms to
determine when contingency measures are needed and a process of
developing and adopting appropriate control measures. The triggers of
the contingency plan are (1) If a measured design value of the fourth
highest maximum at any monitor within the maintenance area in a single
ozone season is .087 ppm or greater, or (2) if periodic emission
inventory updates reveal excessive or unanticipated growth greater than
10 percent in ozone precursor emissions. If either of these two
triggers are met, Kentucky will evaluate existing control measures to
determine if any further emission reduction measures should be
implemented at that time. If there is a measured violation of the 8-
hour ozone NAAQS in the Kentucky Bi-State Louisville Area, Kentucky, or
as appropriate, LMAPCD, commits to consider for adoption one or more of
the following measures within nine months. All regulatory programs
adopted will be implemented within 18 months from a measured violation.
A program to require additional emission reductions on
stationary sources;
A program to enhance inspection of stationary sources to
ensure emission control equipment is functioning properly;
Fuel programs \2\ including incentives for alternative
fuels;
---------------------------------------------------------------------------
\2\ Generally, states are preempted from adopting fuel controls
pursuant to section 211(c)(4)(A) of the CAA unless EPA grants a fuel
waiver in accordance with section 211(c)(4)(C) of the CAA.
Specifically, section 211(c)(4)(A) of the CAA states that: ``Except
as otherwise provided in [the CAA], no State (or political
subdivision thereof) may prescribe or attempt to enforce, for
purposes of motor vehicle emission control, any control or
prohibition respecting any characteristic or component of a fuel or
fuel additive in a motor vehicle or motor vehicle engine * * * ''
Thus, any SIP-approved fuel program can only be approved if a
section 211(c)(4)(C) waiver is granted.
---------------------------------------------------------------------------
Restriction of certain roads or lanes to, or construction
of such roads or lanes for use by, passenger buses or high occupancy
vehicles;
Trip-reduction ordinances;
Employer-based transportation management plans, including
incentives;
Programs to limit or restrict vehicle use in downtown
areas, or other areas of emission concentration particularly during
periods of peak use;
Programs for new construction and major reconstructions of
paths or tracks for use by pedestrians or by non-motorized vehicles
when economically feasible and in the public interest; and
LMAPCD vehicle inspection/maintenance (I/M) program.
The following milestones are applicable to all contingency measures
and are calculated from the date upon which Kentucky is notified of a
violation of the 8-hour ozone NAAQS:
Proposal of draft regulations and promulgation of final
regulations--3 months;
Issuance of final specifications and procedures--3 months;
Issuance of final request for proposals (if applicable)--4
months; and
Licensing or certifications of stations and inspectors--17
months.
EPA has concluded that the maintenance plan adequately addresses
the five basic components of a maintenance plan: attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and a contingency plan. The maintenance plan SIP
revision submitted by Kentucky for Bullitt, Jefferson and Oldham
Counties therefore meets the requirements of section 175A of the CAA
and is approvable.
VII. What Are the Proposed Regional MVEBs for the Bi-State Louisville
8-Hour Ozone Area?
Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (e.g., reasonable further progress SIPs and
attainment demonstration SIPs) and maintenance plans establish MVEBs
for criteria pollutants and/or their precursors to address pollution
from cars and trucks. Per 40 CFR part 93, an MVEB is established for
the last year of the maintenance plan. A State may adopt MVEBs for
other years as well. Additionally, in coordination with cooperating
States in a multi-State area, such States may adopt regional MVEBs that
include another State. The MVEB is the portion of the total allowable
emissions in the maintenance demonstration that is allocated to highway
and transit vehicle use and emissions. See, 40 CFR 93.101. The MVEB
serves as a ceiling on emissions from an area's planned transportation
system. The MVEB concept is further explained in the preamble to the
November 24, 1993, transportation conformity rule (58 FR 62188). The
preamble also describes how to establish the MVEB in the SIP and revise
the MVEB. In addition to MVEBs for the last year of the maintenance
plan, a State may adopt MVEBs for other years as well.
Kentucky and Indiana developed regional MVEBs for NOX
and VOCs. Kentucky used the year 2020, the last year of its maintenance
plan, and an additional year, 2003. Kentucky's maintenance plan being
proposed for approval today includes the regional MVEBs for
NOX and VOCs developed jointly by Kentucky and Indiana. EPA
is
[[Page 20976]]
now proposing to approve the regional MVEBs.
Kentucky's September 29, 2006, SIP submittal included a maintenance
plan with regional MVEBs for NOX and VOCs for the entire bi-
State Louisville 8-hour ozone area for the years 2003 and 2020. As part
of its rulemaking process, Kentucky presented the regional MVEBs (for
2020) for public comment on the State level, however, the additional
2003 year was not included in that public comment process. The 2003
mobile emissions projections (the partial basis of the 2003 MVEBs)
were, however, included in Kentucky's June 7, 2006, initial SIP
submittal that was the subject of public comment. At that time, the
public had an opportunity to comment on those projections. In its final
submittal in September 2006, Kentucky included the 2003 MVEBs, and
addressed the inclusion of the 2003 MVEBs in a response to comments on
its June 7, 2006, submittal. MVEBs are mandatory for the last year of
most maintenance plans (2020 for this area), and optional for other
years (such as 2003 for this Area).
Kentucky's inclusion of 2003 MVEBs in its final submittal was made
to provide consistency between the Kentucky and Indiana submittals for
the regional MVEBs years provided for this entire bi-State area.
Indiana included the 2003 MVEBs in its request for redesignation of the
8-hour ozone standard and its maintenance plan SIP revision. The
interstate-Louisville transportation and air quality partners were
consulted on the development of the MVEBs for 2003 and 2020, and are in
agreement with the establishment of MVEBs for 2003 and 2020 for the
entire bi-State Louisville 8-hour ozone area. In the present
circumstance, EPA believes that the public had adequate notice and
opportunity to comment on Kentucky's use of the years 2003 and 2020 for
the regional MVEBs. The regional MVEBs for the entire bi-State
Louisville 8-hour ozone area are defined in the table below.
Table 6.--Louisville KY-IN 8-Hour Ozone Regional Motor Vehicle Emissions
Budgets
[Tons per day]
------------------------------------------------------------------------
2003 2020
------------------------------------------------------------------------
VOC........................................... 40.97 22.92
NOX........................................... 95.51 29.46
------------------------------------------------------------------------
Kentucky and Indiana have jointly chosen to allocate a portion of
the available safety margin to the 2020 MVEBs. This allocation is 6.03
tpd for VOC and 9.84 tpd for NOX. The 2020 regional MVEBs
are derived as follows for VOC: (16.89 tpd for total mobile emissions)
+ (6.03 tpd from available safety margin) = 22.92 tpd; and for
NOX: (19.62 tpd for total mobile emissions) + (9.84 tpd from
available safety margin) = 29.46 tpd. Thus, the remaining safety margin
for the Kentucky Bi-State Louisville Area is 15.76 tpd for VOC and
102.69 tpd for NOX.
Through this rulemaking, EPA is proposing to approve the 2003 and
2020 regional MVEBs for NOX and VOCs for the bi-State
Louisville 8-hour ozone area because EPA has determined that the Area
maintains the 8-hour ozone standard with emissions at the levels of the
budgets. Once the new MVEBs are approved or found adequate (whichever
is done first), they must be used for future transportation conformity
determinations. As is discussed in greater detail below, EPA is also
notifying the public of EPA's review of the adequacy of the proposed
2003 and 2020 MVEBs for the Kentucky Bi-State Louisville Area pursuant
to 40 CFR 93.118(f)(2).
VIII. What Is the Status of EPA's Adequacy Determination for the MVEBs
for the Bi-State Louisville 8-Hour Ozone Area?
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the NAAQS. If a transportation plan does not ``conform,'' most new
projects that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a SIP. The regional emissions analysis is
one, but not the only, requirement for implementing transportation
conformity. Transportation conformity is a requirement for
nonattainment and maintenance areas. Maintenance areas are areas that
were previously nonattainment for a particular NAAQS but have since
been redesignated to attainment with a maintenance plan for that NAAQS.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA can make the MVEBs available for use for
transportation conformity finding these MVEBs ``adequate'' for use in
determining transportation conformity through EPA's Adequacy Process.
Once EPA affirmatively finds the submitted MVEB is adequate for
transportation conformity purposes, that MVEB can be used by State and
Federal agencies in determining whether proposed transportation
projects ``conform'' to the SIP as required by section 176(c) of the
CAA.
EPA's substantive criteria for determining ``adequacy'' of an MVEB
are set out in 40 CFR 93.118(e). In accordance with the adequacy
evaluation process outlined in 40 CFR 93.118(f)(2), EPA has the option
of using a proposed rule to notify the public that EPA is reviewing
MVEBs for adequacy. Today, EPA is making such a notification that it is
reviewing the regional MVEBs included as part of Kentucky's 8-hour
ozone maintenance plan, for adequacy. The public has 30 days in which
to comment on the adequacy of the regional MVEBs.
If EPA affirmatively finds the MVEBs adequate prior to approval of
the maintenance plan and redesignation request, the applicable budgets
for the purposes of conducting transportation conformity for the
required regional emissions analysis years that involve the year 2020
or beyond, will be the 2020 MVEBs for the bi-State Louisville area. For
required analysis years prior to 2020, the applicable budgets would be
the 2003 MVEBs. The new regional 2003 and 2020 MVEBs will be available
on the effective the date of EPA's adequacy finding, or the date of
publication of the final rulemaking in which the MVEBs are approved
into the SIP in the Federal Register, whichever is done first.
IX. Proposed Actions on the Redesignation Request and the Maintenance
Plan SIP Revision Including Proposed Approval of the 2003 and 2020
MVEBs
Today, EPA is proposing to determine that the Kentucky Bi-State
Louisville Area has met the criteria for redesignation from
nonattainment to attainment for the 8-hour ozone NAAQS. Further, EPA is
proposing to approve Kentucky's redesignation request for the Kentucky
Bi-State Louisville Area. After evaluating Kentucky's SIP submittal
requesting redesignation, EPA has determined that it meets the
redesignation criteria set forth in section 107(d)(3)(E) of the CAA.
EPA believes that the redesignation request and monitoring data
demonstrate that the bi-State Louisville area has attained the 8-hour
ozone standard.
EPA is also proposing to approve the September 29, 2006, SIP
revision
[[Page 20977]]
containing Kentucky's 8-hour ozone maintenance plan for the Kentucky
Bi-State Louisville Area. The maintenance plan includes regional MVEBs
for 2003 and 2020, among other requirements.
Further, as part of today's action, EPA is providing notice that it
is reviewing the adequacy of the regional MVEBs in accordance with 40
CFR 93.118(f)(2). Within 24 months from the effective date of EPA's
adequacy finding for the MVEBs, or the date of publication of the final
rule for this action, whichever is done first, the transportation
partners will need to demonstrate conformity to these new MVEBs
pursuant to 40 CFR 93.104(e) as effectively amended by new section
172(c)(2)(E) of the CAA as added by the Safe, Accountable, Flexible,
Efficient Transportation Equity Act--A Legacy for Users (SAFETEA-LU),
which was signed into law on August 10, 2005.
X. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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
proposed action merely proposes to approve State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Redesignation of an area to attainment under
section 107(d)(3)(e) of the CAA does not impose any new requirements on
small entities. Redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on sources. Accordingly, the Administrator certifies that this proposed
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 proposes to approve 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 proposed 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 proposed 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
Commonwealth 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. Redesignation is an
action that affects the status of a geographical area but does not
impose any new requirements on sources. 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 proposed 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.).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 18, 2007.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E7-8114 Filed 4-26-07; 8:45 am]
BILLING CODE 6560-50-P