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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
EPA ID: [EPA-R04-OAR-2006-0362-200702; FRL-8449-5]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Kentucky: Redesignation of Boyd County, Kentucky Portion of the Huntington- Ashland 8-Hour Ozone Nonattainment Area to Attainment for Ozone
DATES: Effective Date: This rule will be effective September 4, 2007.
DOCUMENT SUMMARY: EPA is taking final action to approve 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 HuntingtonAshland 8hour ozone
nonattainment area to attainment for the 8hour ozone National Ambient
Air Quality Standard (NAAQS). The Kentucky portion of the bistate
HuntingtonAshland 8hour ozone nonattainment area (hereafter referred
to as ``Boyd County'') is comprised of one county in Kentucky (Boyd
County) and two counties in West Virginia (Cabell and Wayne Counties).
EPA's approval of Kentucky's redesignation request is based upon the
determination that Kentucky has demonstrated that Boyd County has met
the criteria for redesignation to attainment specified in the Clean Air
Act (CAA), including the determination that the entire (including both
the Kentucky and West Virginia counties) bistate HuntingtonAshland 8
hour ozone nonattainment area has attained the 8hour ozone standard.
Additionally, EPA is approving a revision to the Kentucky State
Implementation Plan (SIP) including the 8hour ozone maintenance plan
for Boyd County that contains the new 2018 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 are EPA Taking?
III. Why Are We Taking These Actions?
IV. What Are the Effects of These Actions?
V. Final Action
VI. 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 Boyd County to attainment for the 8hour ozone
standard, and for EPA approval of the Kentucky SIP revision containing
a maintenance plan for Boyd County. In an action published on May 11,
2007 (72 FR 26759), EPA proposed to approve the redesignation of Boyd
County to attainment. EPA also proposed approval of Kentucky's plan for
maintaining the 8hour NAAQS as a SIP revision, and proposed to approve
the 2018 state \1\ MVEBs for Boyd County that were contained in the
maintenance plan. EPA received no comments on the May 11, 2007,
proposal. Today's rule is EPA's final action following the May 11, 2007, proposed rule.
\1\ The term ``state'' with regard to MVEBs refers to the
portion of the area, in a multistate area, for which the MVEBs
apply. In this case, the term ``state'' indicates that the MVEBs
cover Boyd County, and also indicates to transportation conformity
implementers in this area that there are separate MVEBs for the West
Virginia portion of this area. EPA's Companion Guidance for the July 1, 2004, Final Transportation Conformity Rule: Conformity
Implementation in MultiJurisdictional Nonattainment and Maintenance
Areas for Existing and New Air Quality Standards explains more about
the possible geographical extent of an MVEB, how these geographical
areas are defined, and how transportation conformity is implemented
in these different geographical areas. For the purposes of today's
final action, the term ``state MVEBs'' refers to the Boyd County
MVEBs being approved as part of the Boyd County maintenance plan.
Today, EPA is also providing information on the status of the
Agency's transportation conformity adequacy determination for the new
state MVEBs for the year 2018 that are contained in the maintenance
plan for Boyd County. The maintenance plan establishes the following state MVEBs for Boyd County.
Boyd County 2018 MVEBs
[Tons per day]
2018
VOCs.................................................... 1.18
NOX..................................................... 1.30
EPA's adequacy public comment period on these budgets (as contained in Kentucky's submittal) began on June 21, 2006, and closed on July 23, 2006. No comments were received during EPA's adequacy public comment period. Through this Federal Register notice, EPA is finding the 2018 state MVEBs, as contained in Kentucky's submittal, adequate. These MVEBs meet the adequacy criteria contained in the Transportation Conformity Rule. The new state MVEBs must be used for future transportation conformity determinations.
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 (DC 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. v.
EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to
several petitions for rehearing, the DC Circuit Court 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 CAA 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 1hour
standard and those antibacksliding provisions of the Phase 1 Rule that
had not been successfully challenged. The June 8th decision affirmed
the December 22, 2006, decision that EPA had improperly failed to
retain measures required for 1hour nonattainment areas under the anti
backsliding 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; and (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 1hour NAAQS, or for failure to attain that
NAAQS. The June 8th decision clarified that the Court's reference to
conformity requirements for antibacksliding purposes was limited to
requiring the continued use of 1hour MVEBs until 8hour budgets were
available for 8hour conformity determinations, which is already
required under EPA's conformity regulations. The Court thus clarified
that 1hour conformity determinations are not required for anti backsliding purposes.
For the reasons set forth in the proposal action for Boyd County, 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 Boyd County to attainment. Even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.
With respect to the requirement for transportation conformity under the 1hour standard, the Court in its June 8th decision clarified that for those areas with 1hour MVEBs in their 1hour maintenance plans (in this instance, Boyd County), antibacksliding requires only that those 1hour budgets must be used for 8hour conformity determinations until replaced by 8hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93.
II. What Actions are EPA Taking?
EPA is taking final action to approve Kentucky's redesignation
request and to change the legal designation of Boyd County from
nonattainment to attainment for the 8hour ozone NAAQS. The entire bi
state HuntingtonAshland 8hour ozone nonattainment area is comprised
of one county in Kentucky (Boyd County) and two West Virginia Counties (Cabell and Wayne Counties). This final action addresses
[[Page 43174]]
only Boyd County. EPA has already taken action on the redesignation
request and maintenance plan for the West Virginia portion of this area
in a separate action. EPA is also approving Kentucky's 8hour ozone
maintenance plan for Boyd County (such approval being one of the CAA
criteria for redesignation to attainment status). The maintenance plan
is designed to help keep Boyd County in attainment for the 8hour ozone
NAAQS through 2018. These approval actions are based on EPA's
determination that Kentucky has demonstrated that Boyd County has met
the criteria for redesignation to attainment specified in the CAA,
including a demonstration that the entire bistate HuntingtonAshland
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 May 11, 2007 (72 FR 26759).
Consistent with the CAA, the maintenance plan that EPA is approving
today also includes 2018 state MVEBs for NO
EPA has determined that the entire bistate HuntingtonAshland Area has attained the 8hour ozone standard and has also determined that Kentucky has demonstrated that all other criteria for the redesignation of Boyd County 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 Boyd County as meeting the requirements of sections 175A and 107(d) of the CAA. Furthermore, EPA is finding adequate and approving the new 2018 state MVEBs contained in Kentucky's maintenance plan because these MVEBs are consistent with maintenance for the entire bistate HuntingtonAshland Area. In the May 11, 2007, proposal to redesignate Boyd County, 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 Boyd County, Kentucky for the 8hour ozone NAAQS, found at 40 CFR Part 81. The approval also incorporates into the Kentucky SIP a plan for maintaining the 8hour ozone NAAQS in Boyd County through 2018. The maintenance plan includes contingency measures to remedy future violations of the 8hour ozone NAAQS, and establishes state MVEBs for the year 2018 for Boyd County. In a separate action, EPA has already approved 8hour ozone MVEBs for the West Virginia portions (Cabell and Wayne Counties) of this area.
V. Final Action
After evaluating Kentucky's redesignation request, EPA is taking
final action to approve the redesignation and change the legal
designation of Boyd County, Kentucky 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 Boyd
County, which includes the new state 2018 MVEBs of 1.18 tpd for VOCs,
and 1.30 tpd for NO
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves 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 (Pub. L. 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
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 [[Page 43175]]
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 October 2, 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: July 25, 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 is amended by adding a new entry at the end of the
table for ``HuntingtonAshland 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
* * * * * * *
HuntingtonAshland 8hour Ozone Boyd County......... 09/29/06 08/03/07 [Insert
Maintenance Plan. first page of
publication]. PART 81[AMENDED]
3. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
4. In Sec. 81.318, the table entitled ``KentuckyOzone (8Hour
Standard)'' is amended by revising the entry for ``HuntingtonAshland,
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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