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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
EPA ID: [EPA-RO4-OAR-2006-0584-200723; FRL-8335-4]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: 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
EFFECTIVE DATES: This rule will be effective August 6, 2007.
DOCUMENT 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 biState Louisville 8hour ozone nonattainment area to attainment
for the 8hour National Ambient Air Quality Standard (NAAQS). The
Kentucky portion of the biState Louisville 8hour ozone nonattainment
area (hereafter referred to as the ``Kentucky State Louisville Area'')
is comprised of three Kentucky CountiesBullitt, Jefferson and Oldham. The Indiana portion of the biState Louisville 8hour ozone
nonattainment area is comprised of two Indiana CountiesClark 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)
biState Louisville 8hour ozone nonattainment area has attained the 8
hour ozone standard. Additionally, EPA is approving the 8hour ozone
maintenance plan for the Kentucky State Louisville Area, including the
regional motor vehicle emission budgets (MVEBs) for nitrogen oxides
(NO
SUMMARY: Kentucky,
SUPPLEMENTAL INFORMATION
Table of ContentsI. 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 biState Louisville Area to attainment for the 8hour 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 8hour NAAQS as a SIP revision, and proposed to approve the regional MVEBs for the Kentucky biState 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 biState 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 biState Louisville Area.
Kentucky BiState Louisville 8Hour Ozone MVEBs
[Tons per day]
2003 2020
VOC................................................... 40.97 22.92
NOX................................................... 95.51 29.46
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 NO
Various aspects of EPA's Phase 1 8hour 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 8hour 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 8hour nonattainment areas, the 8hour attainment dates and the timing for emissions reductions needed for attainment of the 8hour ozone NAAQS remain effective. The June 8th decision left intact the Court's rejection of EPA's reasons for implementing the 8hour 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 antibacksliding 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 1hour nonattainment areas under the antibacksliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1hour nonattainment classification; (2) Section 185 penalty fees for 1hour 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 1hour 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 1hour MVEBs until 8hour budgets were available for 8hour conformity determinations.
For the reasons set forth in the proposal action for the Kentucky bistate 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 biState Louisville Area from nonattainment to attainment for the 8hour 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 8hour ozone nonattainment area is comprised of three Kentucky CountiesBullitt, Jefferson, and Oldham, and two Indiana CountiesClark and Floyd. This final action addresses only the Kentucky portion of the bistate Louisville 8hour 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 8hour 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 8hour 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 bistate Louisville area has attained the 8hour ozone standard. EPA's analyses of Kentucky's 8hour 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 NO
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 bistate Louisville area has attained the 8hour 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 8hour 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 8hour ozone NAAQS,
found at 40 CFR Part 81. It also incorporates into the Kentucky SIP a
plan for maintaining the 8hour ozone NAAQS in the area through 2020.
The maintenance plan includes contingency measures to remedy future
violations of the 8hour ozone NAAQS, and establishes MVEBs for the
years 2003 and 2020 for the entire bistate 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 NO
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
NO
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
Area Subtotal.................. 75.47 54.65 54.36 51.66 52.54 52.05 47.31 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
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
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 with NOX SIP Call 187.02* 156.62 138.98 120.29 107.41 97.89 88.16 Reductions................
Reductions due to NOX SIP Call..... ......... 20.88 21.25 23.93 23.05 23.54 28.25
Total without NOX SIP Call ......... 177.50 160.23 144.22 130.46 121.43 116.41 reductions................
* Actual baseline emissions.
Without taking credit for NO
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 8hour ozone NAAQS. Through this
action, EPA is also approving into the Kentucky SIP, the 8hour 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 NO
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 preexisting 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 1044).
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.
40 CFR part 52 and 81 are amended as follows:
PART 52[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SKentucky
2. Section 52.920(e) is amended by adding a new entry at the end of the
table for ``Louisville 8hour Ozone Maintenance Plan'' to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(e) * * *
EPAApproved Kentucky Nonregulatory Provisions
Applicable State submittal
Name of nonregulatory SIP geographic or date/effective EPA approval date Explanation
provision nonattainment area date
* * * * * * *
Louisville 8hour Ozone Bullitt County, .................. 07/05/07 [Insert
Maintenance Plan. Jefferson County, first page of
Oldham County. publication]. [[Page 36605]]
PART 81[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. In Sec. 81.318, the table entitled ``KentuckyOzone (8Hour
Standard)'' is amended by revising the entry for ``Louisville, KYIN'',
``Bullitt County'', ``Jefferson County'', and ``Oldham County'' to read as follows:
Sec. 81.318 Kentucky.
* * * * *
KentuckyOzone (8Hour Standard)
Designation \a\ Category/classification Designated area
Date \1\ Type Date \1\ Type
* * * * * * * Louisville, KYIN:
Bullitt County...................... 08/06/07 Attainment...............................
Jefferson County.................... 08/06/07 Attainment...............................
Oldham County....................... 08/06/07 Attainment...............................
* * * * * * *
\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. E713003 Filed 7307; 8:45 am]
BILLING CODE 656050P
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 303038960. Ms. LeSane can be reached via
telephone number at (404) 5629074 or electronic mail at
LeSane.Heidi@epa.gov.
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