[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Rules and Regulations]
[Pages 20853-20867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9092]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-1186-201114; FRL-9295-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Kentucky; Approval of Section 110(a)(1) Maintenance Plans for the 1997 
8-Hour Ozone Standards for the Edmonson County, KY; Greenup County 
Portion of the Huntington-Ashland, WV-KY; Lexington-Fayette, KY; and 
Owensboro, KY

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Kentucky State Implementation Plan (SIP) that include maintenance plans 
addressing the 1997 8-hour ozone national ambient air quality standards 
(NAAQS or standards) for the following four Kentucky attainment areas: 
Edmonson County (hereafter referred to as the ``Edmonson County 
Area''); the portion of Greenup County that was previously a part of 
the Huntington-Ashland, West Virginia-Kentucky 1-hour ozone maintenance 
area (hereafter referred to as the ``Greenup County Area''); Fayette 
and Scott Counties (hereafter referred to as the ``Lexington Area''); 
and Hancock County and the portion of Daviess County that was 
previously a part of the Owensboro 1-hour ozone maintenance area 
(hereafter referred to as the ``Owensboro Area'')--collectively, these

[[Page 20854]]

areas will be referred to as the ``Four Kentucky Areas.'' The Four 
Kentucky Areas were 1-hour ozone maintenance areas that were designated 
as attainment areas for the 1997 8-hour ozone NAAQS. As attainment 
areas that were previously 1-hour maintenance areas, Kentucky was 
required to submit maintenance plans demonstrating how these areas 
would maintain the 1997 8-hour ozone NAAQS. These maintenance plans 
were submitted to EPA on May 27, 2008, as revisions to the Kentucky 
SIP, by the Commonwealth of Kentucky (Commonwealth), through the 
Kentucky Energy and Environment Cabinet, Division for Air Quality 
(DAQ), and ensure the continued attainment of the 1997 8-hour ozone 
NAAQS through the year 2020 for the Four Kentucky Areas. These 
maintenance plans meet applicable statutory and regulatory requirements 
and are consistent with EPA's guidance. EPA is approving the revisions 
pursuant to the Clean Air Act (CAA or Act). This final rule also 
responds to adverse comments made on EPA's previously published 
proposed approvals of the maintenance plans for the Four Kentucky 
Areas.

DATES:  Effective Date: This rule will be effective May 16, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2007-1186. All documents in the 
electronic docket are listed in the http://www.regulations.gov Web 
site. Although listed in the index, some information is not publicly 
available, i.e., Confidential Business Information or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://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: Jane Spann, 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. Jane Spann may be reached by 
phone at (404) 562-9029 or by electronic mail address 
<a href="/cdn-cgi/l/email-protection#cfbcbfaea1a1e1a5aea1aa8faabfaee1a8a0b9"><span class="__cf_email__" data-cfemail="94e7e4f5fafabafef5faf1d4f1e4f5baf3fbe2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. EPA Guidance and CAA Requirements
III. This Action
IV. Comments and Responses
V. Final Action
VI. Statutory and Executive Order Review

I. Background

    In accordance with the CAA, Edmonson County, Kentucky; Huntington-
Ashland, West Virginia-Kentucky; Lexington-Fayette, Kentucky; and 
Owensboro, Kentucky were designated as nonattainment for the 1-hour 
ozone NAAQS (effective January 6, 1992, 56 FR 56694).
    On November 13, 1992, Kentucky submitted requests to redesignate 
the Edmonson County, Lexington-Fayette, and Owensboro 1-hour 
nonattainment Areas to attainment for the 1-hour ozone NAAQS. 
Subsequently, on November 12, 1993, Kentucky submitted a request to 
redesignate the Kentucky portion of the Huntington-Ashland Area to 
attainment for the 1-hour ozone NAAQS. In addition to the redesignation 
requests, Kentucky submitted the required ozone monitoring data and 
maintenance plans to ensure that the redesignated Areas would remain in 
attainment for the 1-hour ozone NAAQS for a period of 10 years after 
redesignation, consistent with the CAA section 175A(a).
    EPA approved Kentucky's maintenance plans and requests to 
redesignate the Kentucky portion of the Huntington-Ashland Area (60 FR 
33748; June 29, 1995); the Lexington-Fayette Area (60 FR 47089; 
September 11, 1995); the Edmonson County Area (59 FR 55053; November 3, 
1994); and the Owensboro Area (60 FR 7124; February 7, 1995) for the 1-
hour ozone NAAQS.
    On April 30, 2004, EPA designated areas for the 1997 8-hour ozone 
NAAQS (69 FR 23858), and published the final Phase I Implementation 
Rule for the 1997 8-hour ozone NAAQS (69 FR 23951) (Phase I Rule). 
Daviess, Edmonson, Fayette, Greenup,\1\ Hancock and Scott Counties 
(including all portions that were previously designated nonattainment 
for the 1-hour ozone NAAQS) were designated as attainment for the 1997 
8-hour ozone NAAQS, effective June 15, 2004.
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    \1\ While the portion of Greenup County that was a part of the 
1-hour ozone Huntington-Ashland, WV-KY Area was designated 
attainment, Boyd County which was also a part of the 1-hour ozone 
Huntington-Ashland, WV-KY Area was designated nonattainment for the 
1997 8-hour ozone NAAQS, effective June 15, 2004. Boyd County was 
subsequently redesignated to attainment for the 1997 8-hour ozone 
standard and has a CAA section 175A maintenance plan in effect. (72 
FR 43172, August 3, 2007).
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II. EPA Guidance and CAA Requirements

    As a consequence of their designations as attainment for both the 
1-hour and 8-hour ozone standards, the Four Kentucky Areas (all 8-hour 
ozone attainment areas) were required to submit 10-year maintenance 
plans pursuant to section 110(a)(1) of the CAA and the Phase I Rule, 40 
Code Federal Regulations (CFR) 51.905(a)(4). On May 20, 2005, EPA 
issued guidance as to how a state might fulfill the section 110(a)(1) 
maintenance plan obligation established by the CAA and the Phase I Rule 
(Memorandum from Lydia N. Wegman to Air Division Directors, Maintenance 
Plan Guidance Document for Certain 8-Hour Ozone Areas Under Section 
110(a)(1) of Clean Air Act, May 20, 2005, hereafter referred to as 
``Wegman Memorandum''). Neither section 110(a)(1) nor any other 
provision of the CAA contains detail regarding the specific content of 
maintenance plans for these types of areas. EPA's Phase I Rule, in 40 
CFR 51.905(a)(4) provides that section 110(a)(1) maintenance plans must 
include contingency measures.
    On December 22, 2006, the United States Court of Appeals for the 
District of Columbia Circuit (DC Circuit) issued an opinion that 
vacated portions of EPA's Phase I Rule. See South Coast Air Quality 
Management District (SCAQMD) v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On 
June 8, 2007, in response to several petitions for rehearing, the DC 
Circuit Court clarified that the Phase I Rule was vacated only with 
regard to those parts of the Rule that had been successfully 
challenged. Of particular relevance, the Court vacated those portions 
of the Phase I Rule that provided for regulation of the 1997 8-hour 
ozone nonattainment areas designated under Subpart 1 (of part D of the 
CAA) in lieu of Subpart 2, among other portions of the Phase I Rule. 
The Court's decisions do not alter any 8-hour ozone attainment area 
requirements under the Phase I Rule for CAA section 110(a)(1) 
maintenance plans. EPA is thus finalizing its approvals of Kentucky's 
May 27, 2008, proposed SIP revisions as satisfying the section 
110(a)(1) CAA requirements for plans that provide for implementation, 
maintenance, and enforcement of the

[[Page 20855]]

1997 8-hour ozone NAAQS in the Four Kentucky Areas.

III. This Action

    EPA is taking final action to approve SIP revisions incorporating 
the 110(a)(1) maintenance plans for the 1997 8-hour ozone NAAQS for the 
Four Kentucky Areas--Edmonson County, Greenup County, Lexington, and 
Owensboro. On May 27, 2008, Kentucky submitted these maintenance plans 
to ensure the continued attainment of the 1997 8-hour ozone NAAQS 
through the year 2020. In addition to reviewing the maintenance plans, 
EPA has reviewed the updated available air quality monitoring data for 
the Four Kentucky Areas and has confirmed, that based on the available 
data that these Areas continue to meet the 1997 8-hour ozone NAAQS. The 
table below shows the 2007-2009 design values for these attainment 
areas, based on complete, quality-assured and certified monitoring 
data. The table below also shows the preliminary data from 2010 which 
are consistent with continued attainment. The data are listed in EPA's 
Air Quality System database as the preliminary design value report. EPA 
does not anticipate any concerns regarding these data.

                                  Table 1--1997 8-Hour Ozone NAAQS Design Value
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                                                                  Design value  (2007-
                             Area                               2009) parts per million    Design value  (2008-
                                                                         (ppm)                  2010) ppm
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Edmonson County Area..........................................                    0.072                    0.070
Greenup County Area...........................................                    0.072                    0.069
Lexington Area................................................                    0.077                    0.069
Owensboro Area................................................                    0.075                    0.071
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    In this final action, EPA is also responding to adverse comments 
received, from the Sierra Club and Kentucky Environmental Foundation, 
regarding EPA's proposed rulemakings to approve these revisions, 74 FR 
12567, March 25, 2009 (Greenup County Area, Lexington Area and Edmonson 
County Area); 75 FR 3183, January 20, 2010 (Owensboro Area); and 75 FR 
16387, April 1, 2010 (Owensboro limited reopening of comment period). 
EPA proposed approval of the maintenance plans for the Four Kentucky 
Areas in two separate actions. This final rulemaking action is based on 
EPA's full review of relevant information and consideration of the 
comments received, and reflects EPA's conclusion, that these 
maintenance plans comply with section 110 of the CAA and EPA's 
implementing regulations. See 40 CFR 51.905(a)(4). EPA's analyses of 
Kentucky's SIP revisions for the Edmonson County, Greenup County, and 
Lexington Areas are described in detail in proposed and direct final 
rules published March 25, 2009 (74 FR 12774 and 74 FR 12567, 
respectively). Although EPA's direct final rulemaking was withdrawn on 
May 5, 2009 (74 FR 20601), due to the adverse comments received, EPA's 
proposed rulemaking remained in place. EPA's analysis for Kentucky's 
SIP revision for the Owensboro Area is described in detail in a 
proposed rule published on January 20, 2010 (75 FR 3183). Today's 
action responds to adverse comments received on EPA's March 25, 2009, 
and January 20, 2010, rulemakings, and finalizes those rulemakings. 
EPA's action approving the maintenance plan for each area is separate 
and independent of its approval of the plans for the other areas.

IV. Comments and Responses

    EPA received one set of adverse comments from the Sierra Club and 
the Kentucky Environmental Foundation (hereafter referred to as ``the 
Commenters''). These comments address EPA's March 25, 2009, proposed 
and direct final rules to approve Kentucky's 110(a)(1) maintenance 
plans for the Edmonson County, Greenup County, and Lexington Areas. 
This same set of comments was submitted by the Commenters for EPA's 
January 20, 2010, proposed rule to approve Kentucky's 110(a)(1) 
maintenance plan for the Owensboro Area. Today's rulemaking takes final 
action on the maintenance plans for all Four Kentucky Areas. The 
following section of this notice summarizes the adverse comments 
received, and sets forth EPA's responses to the comments. (The complete 
comments are available in the docket for this rulemaking.)
    Comment 1. The Commenters claim that EPA's proposed and direct 
final rules to approve Kentucky's 110(a)(1) maintenance plans for the 
Four Kentucky Areas ``run contrary to Administrator's Jackson's promise 
that the U.S. Environmental Protection Agency decisions would 
henceforth be based on three guiding principles: transparency; use of 
sound science; and respect for rule of law.'' The Commenters state that 
``[i]ssuing a direct final rule in which the actual rules are not 
knowable by reading the Federal Register notice, or for that matter, 
the administrative record, is not a transparent process.'' They further 
complain that EPA's proposal ignored the science of climate change and 
contravened statutory language.
    Response 1. EPA disagrees with the Commenters' characterization of 
the content of the Federal Register notice. The Commenters' contention 
that because the complete text of the SIP revisions is not included in 
the Federal Register notice, EPA has failed to adhere to certain 
principles espoused by EPA Administrator Jackson is simply unsupported. 
EPA's rulemaking here has fulfilled the goals of transparency, sound 
science, and respect for the law. With regard to transparency, neither 
the CAA nor the Administrative Procedure Act mandates that the Federal 
Register notice of proposed rulemaking, or final rulemaking action, 
include the complete text of the proposed SIP revisions. EPA's notice 
of proposed rulemaking satisfied the notice requirements by providing 
citations to the rules at issue, offering the SIP revisions for public 
review, and describing the subjects and issues involved in the SIP 
revisions. Because publication in the Federal Register is costly and 
resource intensive, EPA makes every effort to provide key information 
in proposal notices while at the same time using Agency resources 
efficiently. EPA drafts rulemaking notices to enable public 
understanding of the subjects and issues at hand. All documents related 
to this rulemaking were available at http://www.regulations.gov under 
the docket number EPA-R04-OAR-2007-1186, during the comment period for 
the proposed rulemaking actions. For a member of the public wishing to 
review the complete text of the SIP revisions, the notice of proposed 
rulemaking included instructions for obtaining access to the complete 
SIP revision. In

[[Page 20856]]

addition, the public could also contact the EPA representative 
designated in the notice to obtain further information or answers to 
questions. Thus, the Commenters' contention that, because the complete 
text of the SIP revision was not included in the Federal Register 
notice, EPA failed to adhere to EPA Administrator Jackson's three 
principles is simply unsupported.
    EPA also rejects the Commenters' assertion that the rulemaking 
violates any of the three principles that have been espoused by EPA 
Administrator Jackson. EPA's adherence to Administrator Jackson's three 
principles (transparency, use of sound science, and respect for rule of 
law) is clearly reflected in the detailed information and explanations 
set forth in the proposals, direct final actions, and this final 
action, including the substantive responses to comments. As was 
discussed earlier in this notice, and is also discussed later in this 
response to comments section, EPA's approvals of the maintenance plans 
are supported by the CAA, its implementing regulations, and applicable 
guidance.
    Comment 2. The Commenters assert that Kentucky DAQ has indicated 
that Greenup County, in the Huntington-Ashland Area, Jessamine County 
in the Lexington Area, and Edmonson County are violating the 2008 8-
hour ozone NAAQS. Therefore, the Commenters state, that the public 
interest mandates that EPA quickly act to ensure that at the very 
least, the 1997 8-hour ozone NAAQS is maintained.
    Response 2. The present rulemaking action addresses solely the 
maintenance of the 1997 8-hour ozone NAAQS for the Edmonson County, 
Greenup County, Lexington, and Owensboro Areas. EPA is approving, 
pursuant to CAA section 110(a), Kentucky's plans to assure continued 
maintenance of the 1997 8-hour ozone NAAQS in the Four Kentucky Areas. 
Attainment or maintenance of any subsequently adopted ozone NAAQS is 
not relevant to this rulemaking action, and therefore the issue raised 
by the Commenters is outside the scope of this rulemaking.
    The 2008 8-hour ozone NAAQS, promulgated on March 12, 2008, is 
irrelevant to this rulemaking. EPA is currently reconsidering the 2008 
8-hour ozone NAAQS, and has not yet designated areas for any subsequent 
NAAQS. Actions that EPA may take with regard to the 2008 (or a 
reconsidered) ozone NAAQS are separate from and independent of the 
actions now being taken to approve the 110(a)(1) maintenance plans for 
the Four Kentucky Areas in this rulemaking.
    Comment 3. The Commenters assert that the maintenance plans do not 
ensure maintenance of the 1997 8-hour ozone NAAQS because there is no 
requirement that major stationary sources demonstrate that they do not 
cause or contribute to new violations of the 1997 8-hour ozone NAAQS. 
The basis for this assertion appears to be the Commenters' view that 
Kentucky's Prevention of Significant Deterioration (PSD) program does 
not require new or modified sources that trigger major PSD review due 
to an increase in emissions of nitrogen oxides (NO<INF>X</INF>) to 
demonstrate that they will not cause or contribute to a violation of 
the ozone NAAQS. The Commenters point to a specific facility and cite 
to a portion of the PSD application for that facility where volatile 
organic compounds (VOCs) are considered for the ozone analysis, but not 
NO<INF>X</INF>.
    Response 3. On September 15, 2009, the Kentucky DAQ filed an 
emergency rule to immediately address the issue of NO<INF>X</INF> as a 
precursor for ozone for PSD purposes (which EPA required as part of a 
November 29, 2005, rulemaking for ozone implementation--70 FR 71612). 
Kentucky's emergency rule provides explicit requirements for major new 
sources and major modifications of existing sources of NO<INF>X</INF> 
to demonstrate that they will not cause or contribute to a violation of 
the ozone NAAQS. The emergency rule became effective immediately in 
Kentucky and was subsequently submitted to EPA for approval as a SIP 
revision. On April 1, 2010, EPA proposed approval of Kentucky's rule to 
address NO<INF>X</INF> as a precursor to ozone for PSD (75 FR 16388, 
April 1, 2010). EPA received adverse comments from the Sierra Club.\2\ 
On September 15, 2010 (75 FR 55988), EPA issued a final action 
responding to the adverse comments and approving the Commonwealth's 
rule to address NO<INF>X</INF> as a precursor to ozone for PSD as a 
revision to the Kentucky SIP. EPA thus believes that the concerns 
voiced by the Commenters in this rulemaking about alleged deficiencies 
in Kentucky's PSD program and the regulation of NO<INF>X</INF> as a 
precursor to ozone have been satisfactorily addressed and resolved.
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    \2\ The Commenters allege that East Kentucky Power Cooperative 
(EKPC) is ``taking advantage'' of the SIP not including 
NO<INF>X</INF> as a precursor for ozone for a proposed J.K. Smith 
power plant. Comments at pg. 3. This issue, among others, is part of 
a lawsuit filed by Sierra Club against EPA which is now pending 
before the DC Circuit Court of Appeals. Notably, in briefs filed by 
the United States in that action, it was explained that EKPC 
announced its intentions to cancel plans for the Smith facility and 
the permit at issue in the comments was subsequently withdrawn (the 
withdrawal document is included in the docket for today's 
rulemaking). Because Kentucky's SIP now includes NO<INF>X</INF> as a 
precursor for ozone, the Commenters' concern has been addressed.
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    Comment 4. The Commenters contend that the maintenance plans are 
inadequate because there is no consideration of the impacts that 
climate change will have on ozone levels. The comment makes reference 
to several publications, provides a discussion on the impact of weather 
on climate change and ozone, and concludes that failure to consider 
this important aspect of the problem would lead to an arbitrary result. 
The Commenters request that EPA evaluate the maintenance plans in light 
of the ``increasing danger climate change will cause from ozone.''
    Response 4. With regard to the comment that Kentucky's analysis 
improperly omits consideration of the affect of climate change on 
ambient ozone levels, EPA agrees that climate change is a serious 
environmental issue; however, EPA does not agree that the maintenance 
plans at issue in today's action cannot be approved without the climate 
change analysis outlined by the Commenters. One of the reports cited to 
by the Commenters (April 2009 ``Assessment of the Impacts of Global 
Change on Regional U.S. Air Quality: A synthesis of climate change 
impacts on ground-level ozone,'' page xxiv) concludes that, ``[t]hese 
studies suggest that EPA's Office of Air Quality Planning and Standards 
should begin to consider climate change, for example, in the next 
update of EPA's ozone modeling guidance, especially for planning 
horizons in 2020 and beyond.'' Although the EPA report cited in the 
comment indicates that climate change increases ozone concentrations in 
``substantial regions of the country,'' the report also states that 
there are ``pronounced differences in the broad spatial patterns of 
change'' among the various modeling groups. While ozone concentrations 
may be affected as early as the 2020s (already after the date--2014--
required to be addressed by these section 110(a) maintenance plans), 
most of the modeling groups did not simulate ozone concentration 
changes prior to the 2050s. Furthermore, the report itself states that 
``modeling uncertainties persist, and further research is needed.'' 
More specifically, the report further states that ``[c]urrent modeling 
uncertainties lead to disagreements about the spatial patterns of 
future changes in meteorological variables and, hence, the specific 
regional distributions of future ozone changes across the United 
States.'' Several of the projected models, in fact, provide conflicting 
projections for the area in

[[Page 20857]]

which Kentucky is located (see e.g., Fig. 3-1of the above mentioned EPA 
report). The report concludes ``[t]hese studies suggest that EPA's 
Office of Air Quality Planning and Standards should begin to consider 
climate change, for example, in the next update of EPA's ozone modeling 
guidance, especially for planning horizons in 2020 and beyond.'' 
(Emphasis added.) Thus, the report acknowledges that modeling guidance 
is not yet available for the type of area-specific analysis of effects 
of climate change on ozone concentrations required for SIP planning. 
EPA therefore believes it is premature to require a precise 
mathematical accounting in the SIP process for the effect of higher 
ambient temperatures due to climate change on ozone concentrations. EPA 
stands ready to reevaluate this position when the state of science and 
confidence in projection improve. Given the above, however, at this 
time, EPA cannot say Kentucky was in error when it did not model the 
potential impact of climate change on ozone in the Greenup County, 
Edmonson County, Lexington and Owensboro Areas as it developed 
maintenance plans for those areas.
    Comment 5. The Commenters contend that Kentucky's maintenance plans 
ignore the possibility of changes in weather and emissions outside the 
covered counties. The Commenters also contend that the 2002 emissions 
inventory are not based on any actual emissions data gathered with 
continuous emissions monitors or verified with actual emissions from 
2005 and 2008. Thus, the Commenters conclude that EPA's approval is 
arbitrary because the emissions forecasts are flawed. The Commenters 
claim that there are several reasons for the flaws, including alleged 
failures to properly consider the role of ozone and ozone precursor 
transport and of weather.
    Response 5. Under 40 CFR 51.905(a)(4) section 110(a)(1), 
maintenance plans, like the one at issue here, must demonstrate 
maintenance of the 1997 8-hour NAAQS through 2014. Kentucky has 
voluntarily extended the coverage of its maintenance plans for the Four 
Kentucky Areas for an additional six years beyond the required 
maintenance period (through 2020). EPA has reviewed these plans and 
determined that they satisfy applicable requirements. The 
demonstrations are based upon actual emissions inventories, and 
projected emissions through 2020. These projections take into 
consideration population, state, local and federal emission controls, 
and other relevant factors. Unlike maintenance plans for nonattainment 
areas that are redesignated to attainment, for which section 175A of 
the CAA specifies express requirements, section 110(a)(1) maintenance 
plans for areas designated attainment are not subject to specific 
statutory maintenance plan requirements. In accordance with EPA 
guidance, however, Kentucky did undertake an analysis, summarized as 
follows, for certain emissions groups such as stationary sources, area 
sources and some mobile sources. Response 5, below, contains additional 
information responsive to Comment 4.
    Utilizing Standard Industrial Codes (SIC), all point source 
emissions were projected based on growth factors calculated using 
Bureau of Economic Analysis (BEA) projection data for employment, as 
suggested by EPA and utilized for previous point source projections in 
similar contexts. The point source data provided SIC codes used to 
determine a short title description that matched the corresponding 
description found in the BEA data. The application of growth factors 
for each projection was then used for point sources. Appendix E to 
Kentucky's May 27, 2008, SIP revisions provide information on how point 
source projections were determined.
    Area sources can be defined as those sources that are generally too 
small and/or too numerous to be handled individually in the point 
source inventory. Area source emissions were estimated by multiplying 
an emission factor by a known indicator of collective activity such as 
number of employees or population. For area source emission 
projections, population growth factors for each chosen year were 
calculated using an exponential formula in the EXCEL software. The 
application of these growth factors for each projection was then used 
for area sources. Information used to calculate growth factors, 
including population information used to project area sources, was 
provided by the University of Louisville Urban Data Center and can be 
found in Appendix F of Kentucky's May 27, 2008, SIP revisions.
    The non-highway mobile category is broken down into three groups 
that include two- and four-cycle gasoline engines and diesel engines 
(other non-highway engines), railroad locomotives, and aircraft. 
Emissions are estimated by multiplying the base year inventory by a 
known indicator of collective activity such as fuel consumed or 
landing/takeoff operations. For locomotive and aircraft emission 
projections, population growth factors for each chosen year were 
calculated using the before mentioned formula. The application of these 
growth factors for each projection was then used for each of these non-
highway categories. For other non-highway categories (e.g., industrial 
equipment, tractors, leaf blowers), EPA's nonroad model was used to 
determine the future year projections. Nonroad model and non-highway 
projection information can be found in Appendix G of Kentucky's May 27, 
2008, SIP revisions. Updated minimum and maximum summer temperatures 
and ambient temperatures were utilized for input into the nonroad 
model. EPA Volume IV mobile source guidance was followed in determining 
the updated temperature data. Please see Appendix C of Kentucky's May 
27, 2008, SIP revisions for specific temperature documentation.
    The use of emissions inventories and emissions forecasts has long 
been an accepted method for evaluating maintenance of the NAAQS under 
section 175A for nonattainment areas and EPA's guidance advises its use 
for purposes of maintenance plans under CAA section 110(a)(1). The 
Courts have agreed with EPA's longstanding view that a maintenance 
demonstration for a nonattainment area, and a fortiori an attainment 
area, need not be based on modeling. Wall v. EPA, 265 F.3d 426 (6th 
Cir. 2001); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 
66 FR 53094, 53099-53100 (October 19, 2001); 68 FR 25430-25431 (May 12, 
2003).
    In its guidance issued May 20, 2005, EPA explained that, ``[t]he 
typical method that areas have used in the past to demonstrate that an 
area will maintain the 1-hour standard has been to identify the level 
of ozone precursor emissions in the area which is sufficient to attain 
the NAAQS and to show that future emissions of ozone precursors will 
not exceed the attainment levels.'' Wegman Memorandum at pg. 4. The 
inventory and projections Kentucky provided in the maintenance plans at 
issue here use this method to demonstrate that the Areas will maintain 
the 8-hour ozone standards. Complete, quality-assured air quality 
monitoring data through the year 2009 for all of these Areas showed 
maintenance of the 1997 8-hour ozone NAAQS, and data available for 2010 
indicate continued maintenance. Maintenance is demonstrated by showing 
that during the maintenance period the level of precursor emissions 
remains at or below the attainment level. Variations in weather are 
accounted for by the 3-year averaging required for finding of 
attainment (see e.g., the 2004 attainment designation). The requirement 
that there be three years of quality-assured monitoring data to 
demonstrate attainment is the

[[Page 20858]]

established mechanism by which EPA takes meteorological variability 
into account for purposes of determining attainment and maintenance. 
These issues have been addressed multiple times in a variety of EPA 
rulemakings and court decisions. Today's actions are consistent with 
EPA's longstanding interpretation of the maintenance plan requirements 
of the CAA. See e.g., 69 FR 21719 (April 22, 2004) (redesignation of 
the San Francisco area); 66 FR 53094, 53099 (October 19, 2001) 
(redesignation of the Pittsburgh-Beaver area); 68 FR 25418, 25430 (May 
12, 2003) (redesignation of the St. Louis area); 40 CFR 50.9 and 
Appendix H (method for determining attainment of 1-hour standard; 
Appendix H states that three years of data is required); Appendix I 
(method for 8-hour standard; Appendix I contain similar statement); 
Sierra Club v. EPA, 375 F.3d 537, 539-543 (7th Cir. 2004) (discussing 
the modeling required for maintenance plans). Similarly, the 
Commenters' concerns about potential modifications of sources or new 
sources that may affect ambient levels are addressed by the New Source 
Review (NSR) and PSD programs, as well as by the NOx SIP call 
requirements and other programs designed to regulate pollutants both 
inside and outside the covered counties. As a result, and contrary to 
the Commenters' contention, EPA's review of the maintenance 
demonstrations considered the role of emissions from outside the area 
in maintenance of the standard in the Four Kentucky Areas. EPA took 
into account the relevant federal and state requirements that will help 
ensure that emissions from outside the area will not interfere with 
continued maintenance in the area. These include, among others, the NOx 
SIP Call, NSR/PSD requirements, and other regulations that control 
emissions from outside the Four Kentucky Areas. (See also Response 8, 
below.)
    The inventory and projections Kentucky provided in the maintenance 
plans use this method to demonstrate the Four Kentucky Areas will 
continue to maintain the 1997 8-hour ozone NAAQS. The inventory and 
emissions analyses performed by Kentucky were conservative, and 
reviewed by EPA, to ensure that they reasonably establish maintenance 
of the NAAQS pursuant to section 110(a)(1). EPA's review of Kentucky 
initial attainment inventories and inventory projections of future 
maintenance inventories confirms that maintenance will continue through 
the requisite period. Moreover, as is explained further below, the 
contingency measures portion of the maintenance plan provides a 
backstop for maintenance, functioning to correct a violation if, 
despite the projections, one should occur.
    With regard to the analyses performed by Kentucky, the emissions 
inventory includes four components: Point, area, highway mobile and 
non-highway mobile sources. The Four Kentucky Areas were designated 
attainment for the 1997 8-hour ozone NAAQS in 2004 using 2001-2003 
data. They had an option to choose one of the three attaining years to 
use as a base year for emission inventory purposes. For these SIP 
revisions, Kentucky chose to use 2002, an attainment year (for both the 
8-hour and 1-hour ozone NAAQS), as the year for developing a new 
comprehensive ozone precursor emissions inventory from which projected 
emissions could be developed for 2005, 2008, 2011, 2014, 2017, and 
2020. Maintenance is demonstrated by comparing the attainment year 
emissions to the emissions in the years listed above. The following is 
a summary of the emission projection methodology that was used to 
forecast emissions over the maintenance period; the docket includes a 
more detailed description of this methodology.
    Point sources are defined as stationary sources that emit 10 or 
more tons per year (tpy) of VOC or 100 tpy or more of NOx or carbon 
monoxide (CO). Annual point source emissions data were used.\3\ Point 
source information is collected by Kentucky from a number of sources 
(including permitting information) and point source information was 
provided for utilizing SIC (Response 4, above, discusses the various 
sources of emissions information used by Kentucky). See also Appendix E 
of Kentucky SIP Revisions (specifically discussion regarding point 
source projections). Point source emission projections were based on 
growth factors calculated using BEA projection data for employment. The 
point source data provided SIC codes used to determine a title 
description that matched the corresponding description found in the BEA 
data. The application of growth factors for each projection was then 
used for point sources.
---------------------------------------------------------------------------

    \3\ Actual emissions were used for base year analyses. 
Projections were used for future year inventories which, at the 
time, were for 2005 and 2008. Since then, Kentucky has used the 2005 
and 2008 actual inventories that were submitted to EPA per their 
Consolidated Emissions Reporting Rule (CERR) requirement for the 
development of the EPA National Emission Inventory (NEI) in order to 
compare to the previously submitted projected emissions in the 
maintenance plan submissions.
---------------------------------------------------------------------------

    As mentioned above, area sources are those that are generally too 
small and/or too numerous to be handled individually in the point 
source inventory. The University of Louisville Urban Data Center 
provided information used to calculate growth factors, including 
population information used to project emissions from area sources. Two 
and four-cycle gasoline engines and diesel engines (non-highway 
engines), railroad locomotives and aircraft make up the non-highway 
mobile category. Emissions were estimated by multiplying the base year 
inventory by a known indictor of collective activity such as fuel 
consumed or landing/takeoff operations. For locomotive aircraft 
emission projections, population growth factors for each chosen year 
were calculated. For other non-highway categories such as industrial 
equipment and tractors, EPA's nonroad model was used to determine 
future year projections.
    Daily Vehicle Miles Traveled (DVMT) and speeds for 2002 and the 
projection years were obtained from the Kentucky Transportation Cabinet 
and used to calculate highway mobile source emissions. EPA's MOBILE6.2 
model was used to derive appropriate projection year emission factors 
that were multiplied by the corresponding DVMT to determine the 
projected highway mobile source emissions. The 1990 mobile emissions 
were recalculated using the updated MOBILE6.2 emissions model in order 
to standardize the comparison of the 1990 numbers with the 2002 and 
2020 mobile emissions developed using this model. EPA agrees with the 
methodology used to develop the 2005 and 2008 on-road emissions as 
projected from the 2002 actual emissions and submitted in the SIP 
revisions. The projection methodology used to develop future year on-
road mobile emissions found in the SIP revisions, combined with the 
fact that later determined actual emissions were considerably lower 
than already projected emissions, provides a strong basis for approval 
of these maintenance plans.
    With respect to the Commenters' contention that attainment 
inventories were not based on actual emissions, in fact the 2002 
emission inventories for the Greenup County, Owensboro, and Lexington 
Areas were based on actual point source emissions. There are no point 
sources in the Edmonson Area. (See page 2.1 of Appendix C of each 
Area's 110(a)(1) maintenance plan submittal.) At the time of the 
initial submission of these 110(a)(1) maintenance plans in 2008, the 
actual emissions for some source categories for 2005 and 2008 were not 
required to be submitted. The Consolidated Emissions

[[Page 20859]]

Reporting Rule (CERR) \4\ (40 CFR part 51, subpart A) requires states 
to submit to EPA an emissions inventory for all source categories every 
three years and at the time the SIP revisions were due, only the 2002 
emissions were available for states to use. See 40 CFR 51.30. Not every 
source is subject to continuous emissions monitoring, so the 
information on actual emissions may vary between source categories.
---------------------------------------------------------------------------

    \4\ The CERR is discussed in greater detail in Response 14.
---------------------------------------------------------------------------

    Kentucky has since reviewed the data and compared the actual 
emissions for 2005 and 2008 with the projected emissions for 2005 and 
2008 which were contained in the maintenance plan submittals. This 
analysis is available in the docket for this final rulemaking. EPA 
reviewed Kentucky's analysis and found it reliable and compelling. The 
comparisons revealed that the emissions projected in Kentucky's 
maintenance plans for the Four Kentucky Areas were higher than the 
actual emissions by an average of 19 percent for VOC and 11 percent for 
NOx for 2005; they were higher by an average of 26 percent for VOC and 
47 percent for NOx for 2008. Kentucky's maintenance plans demonstrated 
that, even using projections of emissions that were greater than those 
that actually occurred in these years, those projections remained below 
the attainment base-year inventories. Of course, the fact that the 
actual emissions that occurred in these Areas were substantially less 
than those that were projected provides further demonstration of 
continued maintenance. Thus, actual emissions data during the 
maintenance period have proven that Kentucky's projected emissions were 
very conservative, and confirm EPA's view that the plans provide 
adequate assurance of maintenance during the requisite period. In the 
future, EPA anticipates even further reductions of these ozone 
precursors. This information supports the position that Kentucky's 
emissions projections provided with the 110(a)(1) maintenance plans 
were conservative.
    In addition to the assurance provided by the information above, 
which demonstrates the conservative nature of the emissions forecasts 
(which were supported by actual emissions data as explained in the 
previous paragraph), the contingency measures portion of maintenance 
plans serves as a backstop in the event that any of these Areas 
requires supplemental measures to maintain air quality. These 
contingency measures help to ensure that the Areas continue to maintain 
the NAAQS of concern and can quickly correct a violation should one 
occur. Kentucky's maintenance plans contain two types of such 
contingency measures for each of the Four Kentucky Areas. In the event 
that exceedances (as contrasted with actual violations) of the 8-hour 
ozone NAAQS are monitored in any portion of the maintenance area, or if 
periodic emission inventory updates reveal excessive or unanticipated 
growth greater than 10 percent in ozone precursor emissions, Kentucky 
will evaluate existing control measures to see if additional control 
measures should be implemented at that time. If a monitored violation 
occurs, Kentucky has committed to a contingency measure schedule where 
one or more contingency measures will be adopted within nine months and 
implemented within 18 months to bring the area back into attainment.
    For the reasons discussed above, the Commenters have failed to 
identify a deficiency in the 110(a)(1) maintenance plans that warrants 
any action other than approval.
    Comment 6. The Commenters state that the maintenance plans rely 
both on assuming that measures will be implemented in the future to 
decrease emissions and assuming that Kentucky will implement 
contingency measures if the maintenance plans do not achieve their 
objectives. Specifically, the Commenters argue that Kentucky used a 
Reid Vapor Pressure (RVP) in gasoline of 8.6 pounds per square inch 
(psi) in developing future emission levels even though an RVP of only 
9.0 psi is legally required. The Commenters believe that the 
maintenance demonstration should be based on legal requirements rather 
than assumptions of over-compliance.
    Response 6. The forecasting of emissions in a maintenance plan 
involves the use of reasonable, scientifically-based premises that form 
the basis for expectations of future emissions, the maintenance 
projections, and contingency measure requirements. It is not necessary 
here for EPA to accept or reject the Commenters' contentions regarding 
historically-based over-compliance with legal requirements. Even if EPA 
assumes, as the Commenters insist, that EPA evaluates maintenance using 
the less stringent RVP level of 9.0 psi, the Four Kentucky Areas all 
demonstrate continued maintenance. First, the Commenters' concern with 
the stringency of RVP levels does not pertain to the Greenup County 
Area, since Kentucky modeled only 9.0 psi for RVP for this Area, and 
did not assume a lower RVP. Thus, the Commenters' assertion regarding 
RVP levels more stringent than 9.0 psi applies only to the 110(a)(1) 
maintenance plans for the Edmonson County, Lexington and Owensboro 
Areas. For these Areas, EPA has received and evaluated additional 
information that responds to the Commenters' concern. Kentucky has 
demonstrated that the Edmonson County, Lexington and Owensboro Areas 
are projected to demonstrate continued maintenance of the 1997 8-hour 
ozone NAAQS with fuel modeled at either 9.0 psi (the statutory level) 
or at 8.6 psi (the level indicated by historical surveys that these 
Areas typically receive). This provides a modeled analysis showing a 
comparison of VOC and NOx emissions using both the 8.6 and 9.0 psi RVP 
gasoline. Table 2 below shows the difference in emissions for the 
Edmonson County, Lexington and Owensboro Areas at RVP levels model at 
both 8.6 psi and 9.0 psi.

                                 Table 2--Edmonson County, Lexington and Owensboro Areas Highway Mobile Source Emissions
                                                                  [Tons per day (tpd)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      8.6 psi                         9.0 psi              Difference between 8.6 psi &
                                                         ----------------------------------------------------------------             9.0 psi
                         County                                                                                          -------------------------------
                                                                VOC             NOX             VOC             NOX             VOC             NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
2002:
    Edmonson............................................            0.55            0.96            0.56            0.97            0.01            0.01
    Greenup.............................................             N/A             N/A            1.09            1.56             N/A             N/A
    Fayette.............................................           14.14           23.43           14.66           23.45            0.52            0.02
    Scott...............................................            2.95            5.71            3.05            5.71             0.1               0

[[Page 20860]]

 
    Hancock.............................................             0.1            0.18            0.11            0.18            0.01               0
    Daviess.............................................            3.98            5.97            4.12            5.97            0.14               0
2005:
    Edmonson............................................            0.42            0.79            0.43            0.79            0.01               0
    Greenup.............................................             N/A             N/A            0.87            1.33             N/A             N/A
    Fayette.............................................           10.24           18.14           10.64           18.16             0.4            0.02
    Scott...............................................            2.23            4.58            2.32            4.59            0.09            0.01
    Hancock.............................................            0.07            0.13            0.07            0.13               0               0
    Daviess.............................................             2.9            4.64            3.01            4.64            0.11               0
2008:
    Edmonson............................................            0.39            0.72             0.4            0.72            0.01               0
    Greenup.............................................             N/A             N/A            0.75            1.12             N/A             N/A
    Fayette.............................................            9.34           16.27             9.7           16.29            0.36            0.02
    Scott...............................................            2.13            4.26            2.21            4.27            0.08            0.01
    Hancock.............................................            0.07            0.12            0.07            0.12               0               0
    Daviess.............................................             2.6             4.1             2.7             4.1             0.1               0
2011:
    Edmonson............................................            0.36             0.6            0.36             0.6               0               0
    Greenup.............................................             N/A             N/A            0.64             0.9             N/A             N/A
    Fayette.............................................            8.39           13.54             8.7           13.56            0.31            0.02
    Scott...............................................               2            3.66            2.07            3.67            0.07            0.01
    Hancock.............................................            0.06             0.1            0.06             0.1               0               0
    Daviess.............................................            2.29            3.37            2.38            3.38            0.09            0.01
2014:
    Edmonson............................................             0.3            0.46            0.31            0.46            0.01               0
    Greenup.............................................             N/A             N/A            0.54            0.68             N/A             N/A
    Fayette.............................................             7.3           10.44            7.55           10.45            0.25            0.01
    Scott...............................................            1.84            2.93             1.9            2.93            0.06               0
    Hancock.............................................            0.05            0.07            0.05            0.07               0               0
    Daviess.............................................            1.95            2.56            2.02            2.56            0.07               0
2017:
    Edmonson............................................            0.27            0.38            0.28            0.36            0.01           -0.02
    Greenup.............................................             N/A             N/A            0.48            0.53             N/A             N/A
    Fayette.............................................            6.62            8.36            6.84            8.37            0.22            0.01
    Scott...............................................            1.74            2.43             1.8            2.43            0.06               0
    Hancock.............................................            0.04            0.06            0.04            0.06               0               0
    Daviess.............................................            1.74            2.02             1.8            2.02            0.06               0
2020:
    Edmonson............................................            0.24             0.3            0.25             0.3            0.01               0
    Greenup.............................................             N/A             N/A            0.42            0.44             N/A             N/A
    Fayette.............................................            6.04            7.03            6.23            7.05            0.19            0.02
    Scott...............................................            1.85             2.1             1.7            2.11           -0.15            0.01
    Hancock.............................................            0.04            0.05            0.04            0.05               0               0
    Daviess.............................................            1.56            1.68            1.61            1.68            0.05               0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The overall effect on VOC emissions of the difference between 8.6 
and 9.0 psi RVP gasoline is 0.52 tpd or less for each of the projection 
years for the Edmonson County, Lexington, and Owensboro Areas. Further, 
each of the projected VOC emission inventories using 9.0 psi RVP 
gasoline is less than the baseline VOC emission inventory for the 2002 
attainment year. Based upon these data, EPA concludes that the Edmonson 
County, Lexington, and Owensboro Areas' 1997 8-hour maintenance plans 
demonstrate continued maintenance with the use of either 8.6 or 9.0 psi 
RVP gasoline in these Areas. See also Approval Grant Parish 110(a)(1) 
Maintenance Plan, 72 FR 62579 (November 6, 2007) and 73 FR 8202 
(February 13, 1008).
    Comment 7. The Commenters state that Kentucky's maintenance plans 
included unidentified maximum achievable control technology (MACT) 
standards as sources of reductions of VOC. The Commenters assert that 
this analysis failed to consider that the MACT standards could result 
in the increase of NO<INF>X</INF>, VOC, and CO emissions due to the 
``energy penalty'' from new emission control devices.
    Response 7. The Commenters do not identify the specific impact of 
any ``energy penalty'' on maintenance of the 1997 8-hour ozone NAAQS in 
the Four Kentucky Areas. Energy inefficiencies, as explained by the 
Commenters, may apply to any number of pollutants and the Commenters 
did not provide information specifically addressing how an energy 
penalty would affect emissions reductions relevant to today's action. 
For purposes of responding to this comment, EPA considered the term 
``energy penalty'' to refer to a reduction in energy output that might 
result in the increase of emissions.
    In the 110(a)(1) maintenance plans at issue, Kentucky stated, 
``[t]he continued improvement and maintenance of the air quality in the 
[areas], as verified by the lack of violations of the 8-hour ozone 
standard, is due to the implementation of permanent and enforceable 
emission reductions * * *. The following information outlines

[[Page 20861]]

emission reduction measures that have occurred from 1990 through 2002, 
and those implemented after 2002 and projected to 2020.'' Kentucky then 
lists Maximum Achievable Control Technology (MACT)--promulgated 
national emission standards for hazardous air pollutants (commonly 
referred to as ``MACT standards'')--controls in this list of measures. 
With specific regard to that issue, Kentucky explained, ``* * * (m)any 
of the [Hazardous Air Pollutants] HAPs under these industrial 
categories of controls are also VOCs and compliance with these new MACT 
standards as they are being promulgated will decrease VOC emissions 
from the affected industries * * *''. Based on discussions with 
Kentucky, EPA concludes that Kentucky's maintenance analyses do not 
rely on quantified reductions from MACT standards. Rather, the analyses 
simply recognize that implementation of MACT standards may result in 
collateral reductions of VOCs.\5\ For that reason, Kentucky listed 
``MACT'' generally as part of the permanent and enforceable reductions 
in place in the Areas; however, Kentucky did not quantify those 
reductions numerically with regard to the maintenance plans at issue 
today and does not rely on them to demonstrate maintenance. EPA further 
notes that even if Kentucky had claimed reductions from MACT standards, 
the Commenters simply claim without any supporting information that an 
energy penalty will occur and will result in increased VOC emissions. 
Without additional specific information, EPA cannot conclude that there 
will be any energy penalty whatsoever.
---------------------------------------------------------------------------

    \5\ On September 10, 2010, Jane Spann, Regional Ground-Level 
Ozone Contact for Region 4, spoke with John Gowins of Kentucky DAQ 
(Environmental Control Supervisor) regarding this issue. Mr. Gowins 
confirmed that Kentucky had not numerically quantified any specific 
MACT reductions, but was simply recognizing that the existence of 
federal regulations in effect at the time were ``permanent and 
enforceable reductions'' with regard to VOCs.
---------------------------------------------------------------------------

    In terms of the environmental benefit of the MACT standards, 
Kentucky's expectation that the implementation of the MACT standards 
will have an environmental benefit for ozone is reasonable. The 
Commenters do not provide information supporting the comment that 
installation of control technology will require more fuel to be burned 
such that emissions will increase. Additionally, the Commenters provide 
the example of the installation of carbon injection or a baghouse to 
control mercury; however, no emissions calculation based on a specific 
facility is provided. As a result, the Commenters have not demonstrated 
that a source will necessarily become less efficient because of these 
control technologies (as was stated in the comment); nor that 
Kentucky's maintenance plans are deficient for this reason. EPA 
believes that Kentucky's consideration of MACT standards was 
reasonable.
    In the future, any collateral emission increases associated with a 
specific MACT standard control will be addressed during the actual 
implementation and permitting of sources. If for some reason the 
maintenance of the Areas appear compromised by any specific MACT 
standard in the future, the permitting and implementation process, as 
well as the triggers and measures in the contingency portion of the 
maintenance plans, should prevent or resolve any problem as 
expeditiously as practicable.
    Comment 8. In further support of the comment regarding use of 
projected future emissions reductions, the Commenters assert that 
Kentucky appears to be relying upon reductions in NO<INF>X</INF> 
emissions from the Clean Air Interstate Rule (CAIR). The Commenters 
state that because CAIR is a cap and trade program, it is arbitrary to 
assume that sources will reduce emissions in every year between 2008 
and 2020.
    Response 8. CAIR was remanded to EPA, (North Carolina v. EPA, 531 
F.3d 896 modified on reh'g, 550 F.3d 1176 (D.C. Cir. 2008)), and the 
process of developing a replacement rule is ongoing. As a point of 
clarification, neither CAIR nor the remand of CAIR altered the 
requirements of the NO<INF>X</INF> SIP Call,\6\ which requires states 
to make significant, specific emissions reductions. See 63 FR 57356 
(October 27, 1998).
---------------------------------------------------------------------------

    \6\ On October 27, 1998 (63 FR 57356), EPA issued a 
NO<INF>X</INF> SIP Call requiring the District of Columbia and 22 
states to reduce emissions of NO<INF>X</INF> in order to reduce the 
transport of ozone and ozone precursors. In compliance with EPA's 
NO<INF>X</INF> SIP Call, Kentucky developed rules governing the 
control of NO<INF>X</INF> emissions from Electric Generating Units 
(EGUs), major non-EGU industrial boilers, major cement kilns, and 
internal combustion engines. EPA approved Kentucky's rules as 
fulfilling Phase I and Phase II of the NO<INF>X</INF> SIP Call on 
October 23, 2009 (74 FR 54755). Implementation of the NO<INF>X</INF> 
SIP Call was phased with the Kentucky programs being effective in 
2002 and 2006 at the state level. Id; see also 67 FR 17624 (April 
11, 2002).
---------------------------------------------------------------------------

    All four of the Kentucky Areas attained the 1997 8-hour ozone NAAQS 
by 2002, without any reliance on reductions from CAIR, and before 
requirements under CAIR were implemented. Kentucky has demonstrated 
that the Four Kentucky Areas can maintain the 1997 8-hour ozone NAAQS 
without these requirements. Therefore, EPA believes that the 
Commenters' expressed concerns about Kentucky's reliance on 
NO<INF>X</INF> reductions from CAIR are misplaced, and Kentucky's 
demonstrations of maintenance under section 110(a)(1) do not depend 
upon them.
    Although Kentucky did not rely on the remanded CAIR rule for either 
attainment or maintenance of the 1997 8-hour ozone NAAQS, the 
NO<INF>X</INF> SIP Call requirements provide additional assurance of 
maintenance in the Four Kentucky Areas. In addition, the anti-
backsliding provisions of 40 CFR 51.905(f) specifically provide that 
the provisions of the NO<INF>X</INF> SIP Call, including the statewide 
NO<INF>X</INF> emission budgets, continue to apply after revocation of 
the 1-hour ozone NAAQS. For the maintenance plans that are the subject 
of today's actions, Kentucky appropriately does not rely on the 
remanded CAIR requirements.
    Comment 9. Again, as support for the contention that Kentucky 
considered over-compliance in its maintenance plans, the Commenters 
explain that Kentucky included vehicle turnover in its consideration of 
maintenance, but state that there is no requirement for vehicle 
turnover in the counties covered by the maintenance plans. Thus, it is 
the Commenters' contention that there is no justification for including 
this factor in the projected future emissions.
    Response 9. For the reasons described below, EPA disagrees that 
there is no justification for considering fleet turnover in emissions 
forecasts. Fleet turnover, the gradual, continuing process of new 
vehicles certified to tighter emissions standards replacing older 
vehicles, is a historic fact that has been central to estimating the 
benefits of federal and state emission control programs in SIPs and 
maintenance plans since the earliest motor vehicle emission controls 
were implemented. Fleet turnover will occur in the future as long as 
people continue to replace older vehicles with newer ones, and there is 
no reason to expect this historic practice to change.
    The emission impacts of fleet turnover have been incorporated in 
every EPA-approved emission model including MOBILE6.2, the approved 
model for estimating motor vehicle emissions in SIPs and maintenance 
plans at the time of this analysis. Generally, the calculation of 
emissions in MOBILE6.2 is based upon the reasonable expectation that 
each year, the model year composition of the local motor vehicle fleet 
changes as new vehicles are purchased and enter the fleet and old 
vehicles are scrapped. This results in a decrease in fleet average NOx 
and VOC emissions each year

[[Page 20862]]

because older model year vehicles certified to less stringent emission 
standards leave the fleet and are replaced by newer vehicles certified 
to more stringent standards. The phase-in of new vehicle standards and 
the change in the average emissions of the vehicle fleet due to the 
replacement of older vehicles with newer ones are included in MOBILE6.2 
for both past and future years.
    Specific inputs for MOBILE6.2 can affect the rate of fleet turnover 
that the model calculates in future years. EPA has included language in 
the guidance document ``Technical Guidance on the Use of MOBILE6.2 for 
Emission Inventory Preparation'' (dated August 2004) to ensure that 
states make reasonable assumptions about the rate of fleet turnover in 
the future. As described in this guidance, projected rates of fleet 
turnover in the future should take into account historic fleet turnover 
in the area. That guidance states that it would not be reasonable for a 
state to assume that the rate of new vehicle purchases and fleet 
turnover in the future is higher than historic rates. However, EPA 
expects that states will make the reasonable assumption that residents 
will continue to purchase or lease new vehicles to replace old ones, at 
rates similar to historic rates, and that the average emissions of the 
fleet will decline as a result.
    Comment 10. The Commenters complain that the contingency measures 
in the Kentucky maintenance plans are not automatically effective upon 
a triggering event. Specifically, the Commenters contend that in order 
to comply with the standards set out in the CAA and in the Wegman 
Memorandum, maintenance plans must require that a violation of the 
NAAQS, or a 10 percent increase in the emission inventory, or another 
triggering event that EPA develops, must result in automatically 
effective contingency measures. The Commenters appear concerned that 
the contingency measures outlined by Kentucky are ``vague'' and not 
automatically effective upon a triggering event. In support of the 
contention that the CAA requires that the contingency measures be in 
the SIP and automatically effective upon a trigger event, the 
Commenters cite two court cases: Sierra Club v. EPA, 356 F.3d 296 (D.C. 
Cir. 2004) and Natural Resources Defense Council (NRDC) v. EPA, 22 F.3d 
1125, 1134 (D.C. Cir. 1994).
    Response 10. The CAA sets no specific requirements for section 
110(a)(1) maintenance plans, not even that they contain contingency 
measures. EPA, in its implementing regulation, provides simply that a 
section 110(a)(1) maintenance plan ``must include contingency 
measures.'' EPA guidance in the Wegman memorandum, p. 7, states that 
contingency provisions should be aimed at promptly correcting violation 
of the NAAQS, and explains that the SIP should contain an enforceable 
commitment to adopt and implement contingency measures in a timely 
fashion once they are triggered. Consistent with this guidance, 
Kentucky's 110(a)(1) maintenance plans provide that in the event of a 
monitored violation of the 8-hour ozone NAAQS, Kentucky commits to 
adopt, within a specific amount of time (i.e., nine months), one or 
more of the 8 specific contingency measures listed in the plan. 
Kentucky's maintenance plan commits to implementing the contingency 
measures within 18 months. The Wegman Memorandum states ``[t]he 
schedule for adoption and implementation should be as expeditious as 
practicable, but no longer than 24 months.'' Kentucky's 18-month 
timeframe is consistent with the Wegman Memorandum.
    The Wegman Memorandum goes on to explain that, in addition to the 
minimum trigger upon violation of the NAAQS, EPA recommends additional 
triggers could be used such as exceedance of the precursor emission 
levels upon which maintenance is based. This type of trigger is 
beneficial because it occurs prior to a violation. Kentucky has also 
included this type of additional trigger in its 110(a)(1) maintenance 
plans. If periodic emissions inventory updates reveal excessive or 
unanticipated growth greater than 10 percent in ozone precursor 
emissions, Kentucky has committed to evaluating existing control 
measures to see if any further emission reduction measures should be 
implemented at that time. By meeting the minimum requirement of 
adopting and implementing specific contingency measures upon a 
violation of the NAAQS and including additional triggers, Kentucky has 
sufficiently provided for contingency measures in its maintenance 
planning for the 1997 8-hour ozone NAAQS in the Four Kentucky Areas 
that are the subject of this notice.
    The CAA itself does not expressly address contingency measures in 
section 110(a)(1) maintenance plans, much less require that any 
contingency measures be automatically effective, and the flexibility 
afforded to Kentucky ensures that the correct measure can be adopted in 
order to respond to the particular air quality issues causing the 
triggering event. While the triggering event directs the state to 
launch the process to adopt and implement a contingency measure, the 
state is also given some flexibility to determine which of the 
identified measures is best suited to address the particular air 
quality issue that must be corrected. This is reasonable, desirable, 
and consistent with how EPA and the states have addressed section 175A 
contingency measures in nonattainment areas that have been redesignated 
to attainment.
    The Commenters' contention that the CAA requires something more 
than is being required by EPA in the 110(a)(1) maintenance plans at 
issue in today's action, finds no support in the statute itself. The 
maintenance plans at issue in this notice are 110(a)(1) maintenance 
plans for areas in attainment with the NAAQS at issue. Section 
110(a)(1) contains no express requirement for maintenance plans for 
attainment areas to contain contingency measures, much less detail 
their content. Even where the CAA does require maintenance plans to 
have contingency measures--section 175A for nonattainment areas being 
redesignated to attainment--the CAA and its implementing regulations do 
not require that these measures be automatically effective upon a 
triggering event. Thus, neither a section 110 or 175A maintenance plan 
for an area that is attaining the NAAQS (attainment area or a 
redesignated maintenance area) is required to have fully adopted 
contingency measures that will take effect without further action by 
the state in order for the maintenance plan to be approved.
    The Memorandum from John Calcagni to Air Division Directors, 
Procedures for Processing Requests to Redesignate Areas to Attainment, 
September 4, 1992--hereafter referred to as ``Calcagni Memorandum,'' 
and the Wegman Memorandum, are consistent with the applicable statutory 
and regulatory requirements. The Calcagni Memorandum states ``[t]hese 
contingency measures are distinguished from those generally required 
for nonattainment areas under section 172(c)(9) and those specifically 
required for ozone and CO nonattainment areas under sections 182(c)(9) 
and 187(a)(3), respectively.'' While contingency measures that are 
required for nonattainment areas under sections 172(c)(9) and section 
182(c)(9) must be already adopted so that they can be effective upon a 
triggering event for a nonattainment area that fails to meet its 
reasonable further progress (RFP) or attainment deadlines, this is not 
required for section 110(a)(1) or 175A maintenance plans. The 
Commenters do

[[Page 20863]]

not provide any statutory or regulatory citations for their positions.
    Even for maintenance plans for nonattainment areas that are being 
redesignated to attainment, section 175A requires only that the state 
include contingency measures, as EPA deems necessary, to promptly 
correct any violation of the NAAQS that occurs after redesignation of 
the area. 42 U.S.C. 7505a(d) (Emphasis added.) EPA's interpretation 
that maintenance plan contingency measures need not be fully adopted 
has been followed since 1992. The Sixth Circuit in Greenbaum v. EPA, 
endorsed the Calcagni Memorandum's statements regarding contingency 
measures for 175A maintenance plans. Specifically, the Court stated 
that under 175A, EPA ``has been granted broad discretion by Congress in 
determining what is `necessary to assure' prompt correction.'' 370 F.3d 
at 540. Given the latitude provided maintenance plan contingency 
measures for nonattainment areas being redesignated, EPA's treatment of 
section 110(a)(1) maintenance plans for attainment areas is eminently 
justified and reasonable.
    In support of their contention that contingency measures be 
automatically effective, the Commenters cite to two cases and not any 
statutory or regulatory provisions. In the first, Sierra Club v. EPA, 
356 F.3d 296 (D.C. Cir. 2004), the D.C. Circuit evaluated a conditional 
approval for nonattainment area SIPs--the case did not concern 
maintenance plans for attainment areas and did not address contingency 
measures for attainment areas. In the second, NRDC v. EPA, 22 F. 3d 
1125 (D.C. Cir. 1994), the Court was also evaluating a conditional 
approval as well as various EPA rules regarding, in part, vehicle 
inspection and maintenance programs promulgated pursuant to the 1990 
amendments to the CAA. The pinpoint citation provided by the Commenters 
leads to a discussion on interim milestones to satisfy the conditional 
approval (under CAA section 110(k)(4)). Id. at 1134.
    With regard to the Commenters' contention that the contingency 
measures are ``vague,'' below is a summary of the contingency measures 
included in the maintenance plans. In the event of a monitored 
violation of the 8-hour ozone NAAQS, Kentucky commits to adopt, within 
nine months, one or more of the following contingency measures to re-
attain the NAAQS.
    <bullet> Stage I Vapor Recovery;
    <bullet> Stage II Vapor Recovery;
    <bullet> Basic Vehicle Emissions Testing Program;
    <bullet> Open burning ban during summer ozone season;
    <bullet> Restriction of certain roads or lanes to, or construction 
of such roads or lanes for use by, passenger buses or high-occupancy 
vehicles;
    <bullet> Trip-reduction ordinances;
    <bullet> Employer based transportation management plans, including 
incentives;
    <bullet> Programs to limit or restrict vehicle use in downtown 
areas, or other areas of emission concentration, particularly during 
periods of peak use;
    <bullet> 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.

Further, all regulatory programs will be implemented within 18 months. 
While the Commonwealth also reserves the right to implement other 
contingency measures if new control programs should be developed and 
deemed more advantageous for the Area, this list provides sufficient 
information regarding the types of contingency measures that will be 
considered. As explained above, Kentucky's 110(a)(1) maintenance plans 
for the Four Kentucky Areas are consistent with applicable 
requirements.
    Comment 11. The Commenters assert that EPA has not demonstrated 
that the Greenup maintenance plan, without contingency measures, ``will 
not interfere with attainment and reasonable further progress in the 
other portion of Greenup County'' or in Boyd County, Kentucky.
    Response 11. The Commenters provide no explanation of the basis for 
their concern that Greenup County's maintenance plan might somehow 
interfere with attainment in the other portion of Greenup County or in 
Boyd County, and thus EPA is uncertain of the basis for the Commenters' 
statements. Nonetheless, EPA reviews below the relationship between 
Greenup County and Boyd County with respect to the 1-hour and 8-hour 
ozone standards. With regard to the 1-hour ozone NAAQS, in 1992, Boyd 
County and a portion of Greenup County \7\ were designated 
nonattainment as the Kentucky portion of the Huntington-Ashland 1-hour 
ozone Area. In 1995, the Kentucky portion of the Huntington-Ashland 
Area was redesignated to attainment for the 1-hour ozone NAAQS, and 
under CAA section 175A, EPA approved Kentucky's 1-hour ozone 
maintenance plan for the Area. In 2004, during a national designations 
process, EPA evaluated the Huntington-Ashland Area for the 1997 8-hour 
ozone NAAQS. EPA designated Boyd County nonattainment for the 8-hour 
ozone NAAQS. Further, EPA, and designated attainment the portion of 
Greenup County that was formerly part of the Huntington-Ashland 1-hour 
ozone Area.
---------------------------------------------------------------------------

    \7\ As a point of clarification, Greenup County was included in 
the 1-hour ozone designations as a partial county, as part of the 1-
hour ozone nonattainment area for the Huntington-Ashland Area. This 
Area was initially designated as nonattainment and later as 
attainment for the 1- hour NAAQS. Thus, the portion of Greenup 
County affected was ultimately a 175A maintenance area for the 1-
hour ozone NAAQS. When the 8-hour ozone designations were completed, 
all of Greenup County was designated as attainment, as its own 
attainment area--just the one county. It was not included in what 
was later known as the 8-hour ozone nonattainment area for the 
Huntington-Ashland Area. As a result, Greenup County is currently 
and has always been a 110(a)(1) maintenance area for 1997 8-hour 
ozone NAAQS purposes.
---------------------------------------------------------------------------

    As part of that designations process, EPA made the determination 
that the portion of Greenup County that was in the former 1-hour ozone 
area did not contribute to violations of the 8-hour ozone NAAQS in the 
Huntington-Ashland 1997 8-hour ozone nonattainment Area (including Boyd 
County). 69 FR 23858, 23906 (April 30, 2004). The portion of Greenup 
County that was designated attainment for the 1-hour ozone NAAQS was 
never subject to the 175A maintenance plan because it was never 
designated nonattainment. EPA has no information indicating that 
Greenup County Area's maintenance of both the 1-hour and 8-hour NAAQS 
will interfere with attainment and RFP of Boyd County.
    Moreover, based on monitoring data for 2004-2006, EPA determined 
that the 1997 8-hour ozone nonattainment area for Huntington-Ashland 
attained the 1997 8-hour ozone NAAQS, and in 2007, EPA redesignated the 
Area to attainment. (72 FR 43172, August 3, 2007). EPA is not aware of 
any subsequent 8-hour ozone violations in Boyd County (as part of the 
1997 8-hour ozone maintenance area for Huntington-Ashland) which is 
subject to an approved section 175A 1997 8-hour ozone maintenance plan. 
There is no evidence that any portion of Greenup County has interfered 
with or will interfere with 8-hour ozone attainment in the Huntington-
Ashland Area (including Boyd County). Today's final approval of the 
Greenup County Area's section 110(a)(1) maintenance plan will do 
nothing to increase emissions or interfere with attainment in other 
areas. Further, the Greenup County Area's 110(a)(1) maintenance plan 
projects 2020 out-year emissions for Greenup County are expected to 
decrease by

[[Page 20864]]

twenty-six percent for VOCs and by fifty-one percent for 
NO<INF>X</INF>, compared to the base year 2002. The Greenup County Area 
was attaining the 1997 8-hour ozone NAAQS in 2002 based on measured 
ambient air quality monitoring data, and the emissions inventory future 
years is shown to remain below the 2002 baseline. Boyd County, as part 
of the Huntington-Ashland Area, has now been redesignated to attainment 
for the 1997 8-hour ozone NAAQS. There is no indication that Greenup 
County is interfering or will interfere with continued maintenance in 
Boyd County. EPA believes that the emissions reductions expected to 
continue in Greenup County establish that Greenup County will not 
interfere with attainment throughout the County or in the Huntington-
Ashland Area (Boyd County). Thus, EPA disagrees with the Commenters' 
contentions regarding Greenup County.
    Comment 12. The Commenters incorporated by reference comments 
previously submitted to EPA regarding the Edmonson County maintenance 
plan by the Karst Environmental Education and Protection, Inc. (KEEP). 
Additionally, the Commenters state that EPA must consider the KEEP 
comments. The KEEP comments, which are directed specifically to the 
Edmonson County maintenance plan only, expressed concerns about: 
whether emissions inventories and projections properly considered 
Mammoth Cave National Park and the Nolin River Lake area; highway 
emissions inventories and projections not including unique traffic 
generators (again identifying specific areas); emissions inventories 
and projections not including gasoline and other fuel handling 
activities associated with Nolin Lake and Mammoth Cave National Park; 
non-highway emissions inventories and projections not considering 
watercraft at Nolin Lake; points source emission inventories and 
projections not appearing complete (certain sources identified); and 
that the contingency measures should be implemented immediately or no 
later than three months.
    Response 12. On August 24, 2004, Kentucky submitted an update to 
its original maintenance plan for the 1-hour ozone NAAQS for the 
Edmonson County Area as required by section 175A(b) of the CAA. EPA 
published a proposed and direct final rule on December 17, 2004 (69 FR 
75473), to approve Kentucky's updated maintenance plan for the Edmonson 
County Area. During the public comment period on these rulemakings, EPA 
received adverse comments from KEEP. In response to these comments, EPA 
withdrew its direct final rulemaking and Kentucky subsequently withdrew 
its submitted update to its 1-hour ozone maintenance plan for Edmonson 
County.
    The KEEP comments related to emissions inventories and projections 
submitted in 2004 for the 1-hour ozone maintenance plan and are not 
relevant to the 110(a)(1) maintenance plan that Kentucky submitted for 
the Edmonson County Area for the 1997 8-hour ozone NAAQS. For the 
development of the 110(a)(1) maintenance plan, Kentucky was required to 
use the most up-to-date information. Thus the data used to develop the 
110(a)(1) maintenance plan in 2007 are not equivalent to the data used 
in 2003 to develop the 175A maintenance plan. The KEEP comments, as a 
result, do not address the data in the current 8-hour maintenance plan, 
and thus do not apply to today's action. Nor are they ``adverse'' to 
the instant action because they are not relevant to this action.
    The only issue that might even conceivably be deemed to relate to 
today's action is KEEP's comment regarding the 18-month period for 
implementation of the 1-hour contingency measures. KEEP argued that 
section 175A contingency measures for nonattainment areas being 
redesignated should be implemented in no less than three months based 
upon the fragile and unique terrestrial and subterranean resources of 
Mammoth Cave National Park. Response 10 above discusses implementation 
timeframes for contingency measures under sections 175A and 110(a)(1). 
As noted above, the CAA does not prescribe contingency measures for 
attainment area maintenance plans, and the EPA regulation that requires 
them does not specify any deadlines, much less a three month deadline. 
EPA's guidance in the Wegman Memorandum is consistent with longstanding 
EPA practice with respect to implementation of contingency measures. 
Moreover, the State and EPA may at any time determine that additional 
measures are necessary to assure correction of a violation; however, at 
this time, there is no such violation and the proposed contingency 
measures timeframe is consistent with the applicable requirements. EPA 
notes that the Edmonson Area has consistently attained the 1-hour ozone 
NAAQS since 1994 and has been attaining the 8-hour ozone NAAQS since 
2004. Thus, EPA sees no reason to require more stringent contingency 
measure deadlines than those in the submitted maintenance plan.
    Comment 13. The Commenters state that EPA must include contingency 
measures that are triggered based on ambient monitoring and not just 
emission inventories. The Commenters reference other maintenance plans 
in Kansas and Missouri; however, no citations were provided. The 
Commenters also state that the requirements must be written into the 
CFR at 52.920(e) in order for this to be a clear requirement.
    Response 13. The Commenters' concerns are misplaced. The Wegman 
Memorandum states that a section 110(a)(1) maintenance plan should, 
``include contingency provisions, as necessary, to promptly correct any 
violation of the NAAQS that occurs (51.905(a)(3)(iii) and (4) (ii)).'' 
Wegman Memorandum at pg. 7. In the 110(a)(1) maintenance plans, 
Kentucky in fact commits to taking action based on both ambient 
monitoring data and emission inventory data. Thus, the Commenters are 
incorrect in contending that contingency measures are not triggered by 
the results of ambient monitoring. In the event that exceedances of the 
1997 8-hour ozone NAAQS are measured in any portion of the maintenance 
areas (ambient monitoring data of greater than 0.084 ppm ozone), or if 
periodic emission inventory updates reveal excessive or unanticipated 
growth greater than 10 percent in ozone precursor emissions, Kentucky 
commits to evaluate existing control measures to see if any further 
emission reduction measures should be implemented at that time. In the 
event of a monitored violation of the NAAQS, Kentucky commits to 
adopting, within nine months, one or more of a number of measures 
listed in the maintenance plan and states that all regulatory programs 
will be implemented within 18 months. The measures listed in the 
maintenance plans include but are not limited to such measures as Stage 
1 Vapor Recovery, Stage II Vapor Recovery, open burning bans during 
ozone season, and road restrictions. Kentucky also states that it 
reserves the right to implement other contingency measures if new 
control programs should be developed or deemed more advantageous. The 
maintenance plans thus require contingency measures to be triggered 
upon either ambient monitoring or changes in the emissions inventory 
projections. The maintenance plans being approved today will be 
referenced in the appropriate provisions of 40 CFR 52.920.\8\ These 
provisions do not

[[Page 20865]]

explicitly state all the requirements of the plan, but rather, cite to 
the existence of that plan and note, among other information, the date 
of approval by EPA. Copies of Kentucky's plan can be obtained at the 
EPA Region 4 Office or at http://www.regulations.gov under the docket 
number: ``EPA-R04-OAR-2007-1186.''
---------------------------------------------------------------------------

    \8\ The Commenters state that 40 CFR 52.920(e) is the 
appropriate provision. This provision is for EPA-approved Kentucky 
non-regulatory provisions of the SIP. The Commenter does not explain 
why reference in 52.920(e) is of particular importance. The legal 
effect of the requirement is the same so long as it is SIP-approved 
and referenced in 52.920.
---------------------------------------------------------------------------

    Comment 14. The Commenters argue that Kentucky must be required to 
update the emission inventories and that the maintenance plans should 
include mandatory language requiring Kentucky to prepare emission 
inventories every three years using a defined methodology. The 
Commenters state that these requirements should appear in 40 CFR 
52.920(e).
    Response 14. Section 110(a)(2)(F) of the CAA provides that SIPs are 
to require ``as may be prescribed by the Administrator * * * (ii) 
periodic reports on the nature and amounts of emissions and emissions-
related data from such sources.'' Emission inventories are important 
for the efforts of state, local, and federal agencies to attain and 
maintain the NAAQS for criteria pollutants. Pursuant to its authority 
under section 110 of the CAA, EPA has long required SIPs to provide for 
the submission, by states to EPA, of emission inventories containing 
information regarding the emissions of criteria pollutants and their 
precursors. EPA codified these requirements in 40 CFR part 51, subpart 
Q in 1979 and amended them in 1987. The 1990 Amendments to the CAA 
revised many of the provisions of the CAA related to the attainment of 
the NAAQS and the protection of visibility in mandatory Class I Federal 
areas (certain national parks and wilderness areas). These revisions 
established new periodic emission inventory requirements applicable to 
certain areas that were designated nonattainment for certain 
pollutants.
    The Commonwealth of Kentucky stated that it would use the actual 
emissions developed through its submittal to EPA per the CERR. The CERR 
was published in the Federal Register on Monday, June 10, 2002 (67 FR 
39602) (found in 40 CFR part 51, subpart A). Emissions inventory 
guidance for the preparation of these inventories is located in the EPA 
website (http://www.epa.gov/ttnchie1/publications.html). The purpose of 
the CERR is to simplify reporting, offer options for data collection 
and exchange, and unify reporting dates for various categories of 
criteria pollutant emission inventories. The rule applies to state and 
local agencies and consolidates the emission inventory reporting 
requirements found in various parts of the CAA. States are required to 
prepare a comprehensive state-wide inventory every three years. See 40 
CFR 51.30. The first three-year inventory was for the year 2002. The 
latest CERR inventories were developed for 2005 and 2008 (which were 
used by Kentucky as was discussed previously). Due to the CERR and 
Kentucky's commitments in the maintenance plans, there is no need for 
additional mandatory language or commitments requiring the preparation 
of emission inventories every three years using a defined methodology. 
Kentucky will be updating its emission inventories every three years, 
pursuant to the methodology outlined in the CERR.
    Comment 15. The Commenters assert that the maintenance plans should 
require a monitor in Scott County, in the Lexington Area. The 
Commenters contend that a monitor operated in Scott County until 2005, 
and that in 2005 it monitored violations of the 1997 8-hour ozone 
NAAQS. The Commenters questioned the rationale for removing the Scott 
County monitor and stated that 40 CFR 52.920(e) should require that an 
additional monitor be placed in Scott County.
    Response 15. EPA addresses this comment in the context of today's 
approval of the maintenance plan for the Lexington Area. The 
Commenters' expressed concerns about the Scott County monitor are 
without foundation. First, contrary to the Commenters' contention, at 
the time it ceased operation, the Scott County monitor at issue was not 
violating the 1997 8-hour ozone NAAQS. Moreover, the monitor was shut 
down because it no longer met siting criteria requirements. Finally, 
the monitor was an additional special purpose monitor (SPM), that was 
supplemental to the State's monitoring network, and therefore its 
continued operation was not required to maintain an adequate monitoring 
network. These points are discussed in greater detail below.
    First, contrary to the Commenters' contention, the Scott County 
monitoring site was not violating, but in fact had the lowest design 
value of the four sites in the metropolitan statistical area (MSA) at 
the time it ceased operation. The 2002-2004 design value for the 8-hour 
ozone NAAQS was 0.066 parts per million, far below the 1997 8-hour 
ozone NAAQS. Thus the Commenters are in error when they assert that the 
Scott monitor was violating the 8-hour ozone NAAQS prior to the time it 
ceased monitoring. The last time the Scott Monitor registered a 
violation of the 8-hour ozone standard was in 1996.
    Second, the last siting inspection at the Sadieville site in 2004 
revealed that the site no longer met the siting requirements for ozone, 
as per 40 CFR part 58, Appendices D and E. For example, one applicable 
siting criteria is that the monitor be set back a certain amount from a 
tree or tree line to ensure proper air flow. See, e.g., 40 CFR part 58, 
Appendix E. Monitors that fail to meet applicable siting requirements 
are not appropriate for use in determining compliance with the NAAQS. 
Because it was an optional SPM, and not a monitor required for the 
network to be approved, it was not moved to a new site, but ceased 
operating at the end of the 2004 ozone season.
    Third, for the Lexington-Fayette, Kentucky MSA, the Commonwealth 
operates two State and Local Air Monitoring Stations (SLAMS) ozone 
monitors: one in Lexington and one in Nicholasville. From April 1993 
until October 2004, Kentucky operated an ozone monitor in Sadieville, 
Scott County. The Sadieville ozone air monitoring station was located 
off KY Hwy 32 at the Scott County <greek-i>2 Fire Station (AQS number 
21-209-0001). It was designated as a SPM. A SPM is one that allows the 
capability of providing monitoring for complaint studies, modeling 
verification, and compliance status for short-term studies. The 
monitoring data may be reported to EPA, provided that the monitor(s) 
and station(s) meet the requirements of the SLAMS network. The 
Sadieville site represented population exposure on an urban scale; its 
main objective was to evaluate compliance with and/or progress made 
towards meeting the ozone NAAQS. Because Kentucky's SLAMS network 
already met all federal requirements for siting and design, this SPM in 
Sadieville reflected Kentucky's effort to exceed the EPA's siting 
requirements for ozone.
    EPA has determined that Kentucky currently meets the monitoring 
requirements for ozone as required in 40 CFR part 58, Appendices A, C, 
D, E, and G. The Kentucky SLAMS consist of a network of monitoring 
stations whose size and distribution are largely determined by the 
monitoring requirements for NAAQS comparison and the needs of 
monitoring organizations to meet their respective SIP requirements. The 
SLAMS stations must meet requirements that relate to four major areas: 
Quality assurance, monitoring methodology, sampling

[[Page 20866]]

interval, and siting of instruments/instrument probes. The Areas 
affected by today's action include five monitors in locations 
consistent with federal requirements. Thus, at this time, there does 
not appear to be any rationale for placing a new monitor in Scott 
County. Every year, Kentucky is required to evaluate its current 
monitoring network consistent with 40 CFR 58.10. This process is 
subject to public notice and comment. For today's action, the 
monitoring network meets applicable requirements.

V. Final Action

    Pursuant to section 110(a)(1) of the CAA, EPA is taking final 
action to approve as revisions to Kentucky's SIP the maintenance plans 
for the 1997 8-hour ozone NAAQS for the Edmonson County, Greenup 
County, Lexington and Owensboro Areas, which were submitted by Kentucky 
on May 27, 2008. These maintenance plans ensure continued attainment of 
the 1997 8-hour ozone NAAQS for these Areas through the year 2020. 
After evaluating the Commonwealth's submittals and the comments 
received on the proposed rulemaking with respect to these plans, EPA 
has determined that each of these maintenance plans meets the 
applicable requirements of the CAA and EPA regulations, and is 
consistent with EPA policy.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, these actions:
    <bullet> Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Are not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, these rules do not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    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 action 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 June 13, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 6, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart S--Kentucky

0
2. Section 52.920(e), is amended by adding new entries for the 
Huntington--Ashland 8-Hour Ozone Section 110(a)(1) Maintenance Plan, 
Lexington 8-Hour Ozone Section 110(a)(1) Maintenance Plan, Edmonson 
County 8-Hour Ozone Section 110(a)(1) Maintenance Plan, and Owensboro 
8-Hour Ozone Section 110(a)(1) Maintenance Plan to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

[[Page 20867]]



                                 EPA-Approved Kentucky Non-regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                      Applicable        State submittal
   Name of non-regulatory SIP        geographic or      date/ effective    EPA approval date     Explanations
            provision             nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Huntington--Ashland 8-Hour Ozone  A portion of        May 27, 2008......  4/14/11 [Insert     For the 1997 8-
 Section 110(a)(1) Maintenance     Greenup County.                         citation of         hour ozone NAAQS.
 Plan.                                                                     publication].
Lexington 8-Hour Ozone Section    Fayette and Scott   May 27, 2008......  4/14/11 [Insert     For the 1997 8-
 110(a)(1) Maintenance Plan        Counties.                               citation of         hour ozone NAAQS.
 Section 110(a)(1).                                                        publication].
Edmonson County 8-Hour Ozone      Edmonson County...  May 27, 2008......  4/14/11 [Insert     For the 1997 8-
 Section 110(a)(1) Maintenance                                             citation of         hour ozone NAAQS.
 Plan.                                                                     publication].
Owensboro 8-Hour Ozone Section    Daviess County and  May 27, 2008......  4/14/11 [Insert     For the 1997 8-
 110(a)(1) Maintenance Plan.       a portion of                            citation of         hour ozone NAAQS.
                                   Hancock County.                         publication].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-9092 Filed 4-13-11; 8:45 am]
BILLING CODE 6560-50-P


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