ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-0AR-201O-0502-201011; FRLApproval and Promulgation of Implementation Plans; Revisions to the Kentucky State

Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to approve the transportation conformity revisions to

the Kentucky State Implementation Plan (SIP) submitted by the Commonwealth of Kentucky,

through the Kentucky Energy and Environment Cabi~et's Division of Air Quality (KY DAQ).

This addition consists of transportation conformity criteria and procedures related to interagency

consultation and enforceability of certain transportation-related control measures and mitigation

measures. The intended effect is to establish the transportation conformity criteria and

procedures in the Kentucky SIP. This action is being taken pursuant to Section 110 of the Clean

Air Act (CAA).

EFFECTIVE DATE: This rule will be effective [insert 30 days after date of publication in the

Federal Register.

ADDRESSES: EPA has established a docket for this action under Docket Identification No.

EPA-R04-0AR-201O-0502. All documents in the docket are listed on the www.regulations.gov
web site. Although listed in the index, some information is not publicly available, Le.,

Confidential Business Information or other information whose disclosure is restricted by statute.

Certain other material, such as copyrighted material, is not placed on the Internet and will be

publicly available only in hard copy form. Publicly available docket materials are available

either electronically through www.regulations.gov or in hard copy at the Regulatory·

Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division,

U.S. Environmental Protection Agency, Region 4,61 Forsyth Street, SW, Atlanta, Georgia

30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional

Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal

holidays.

FOR FURTHER INFORMATION CONTACT: Amanetta Somerville, Air Quality Modeling·

and Transportation 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. Ms. Somerville's telephone number is 404-562-9025. She can also be

reached via electronic mail at Somerville.amanetta@epa.gov.

SUPPLEl\1ENTARY INFORMATION:

Table of Contents

I. Today's Action

II. Background

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III. Final Action

IV. Statutory and Executive Order Reviews

I. Today's Action

EPA is taking final action to approve the transportation confonnity section of the SIP

revision, submitted by the Commonwealth of Kentucky, through KDAQ, on December 31,2008

for the purpose of establishing transportation confonnity criteria and procedures in the Kentucky

SIP. This approval action is based on EPA's analysis that Kentucky's request complies with

Section 176(c) of the CAA.

In a December 4,2009, rulemaking notice, EPA proposed approval of the aforementioned

revision to the Kentucky SIP. The comment period closed on January 4,2010, and no comments

were received. A detailed discussion of Kentucky's submittal and EPA's rationale for approval

of the December 31,2008, Kentucky SIP revision may be found in the proposed rulemaking

notice (74 FR 63697). EPA is finalizing the approval as proposed based on the rationale stated

in the proposal and in this final action.

II. Background for this Action

A. Transportation Confonnity

Transportation confonnity (hereafter referred to as "confonnity") is required under

section 176(c) of the Clean Air Act (CAA or Act) to ensure that federally supported highway,

transit projects, and other activities are consistent with ("confonn to") the purpose of the SIP.

Confonnity currently applies to areas that are designated nonattainment, and to areas that have

been redesignated to attainment after 1990 (maintenance areas) with plans developed under

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section 175A of the Act, for the following transportation related criteria pollutants: ozone,

particulate matter (PM2.5 and PMIQ), carbon monoxide, and nitrogen dioxide.

Conformity to the purpose of the SIP means that transportation activities will not cause

new air quality violations, worsen existing violations, or delay timely attainment of the relevant

criteria pollutants, also known as national ambient air quality standards (NAAQS). The

transportation conformity regulation is found in 40 CFR Part 93 and provisions related to

conformity SIPs are found in 40 CFR 51.390.

B. Federal Requirements

EPA promulgated the Federal transportation conformity criteria and procedures

("Conformity Rule") on November 24, 1993 (58 FR 62188). Among other things, the rule

required states to address all provisions of the conformity rule in their SIPs frequently referr~d to

as "conformity SIPs." Under 40 CFR 51.390, most sections of the conformity rule were required

,

to be copied verbatim. States were also required to tailor all or portions of the following three

sections of the conformity rule to meet their state's individual circumstances: 40 CFR 93.105,

which addresses consultation procedures; 40 CFR 93.122(a)(4)(ii), which addresses written

commitments to control measures that are not included in a metropolitan planning organization's

(MPO's) transportation plan and transportation improvement program that must be obtained

prior to a conformity determination, and the requirement that such commitments, when they

exist, must be fulfilled; and 40 CFR 93.125(c), which addresses written commitments to

mitigation measures that must be obtained prior to a project-level conformity determination, and

the requirement that project sponsors must comply with such commitments, when they exist.

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On August 10, 2005, the "Safe, Accountable, Flexible, Efficient Transportation Equity

Act: A Legacy for Users" (SAFETEA-LU) was signed into law. SAFETEA-LU revised section

176(c) of the CAA transportation conformity provisions. One of the changes streamlines the

requirements for conformity SIPs. Under SAFETEA-LU, states are required to address and

tailor only three sections of the rule in their conformity SIPs: 40 CFR 93.105, 40 CFR

93. 122(a)(4)(ii), and 40 CFR 93.125(c), described above. In general, states are no longer

required to submit conformity SIP revisions that address the other sections of the conformity

rule. These changes took effect on August 10,2005, when SAFETEA-LU was signed into law.

C. SIP Submission

On December 31,2008, the Commonwealth of Kentucky, through the KY DAQ,

submitted the Commonwealth's transportation conformity and consultation interagency rule to

EPA as an addition to the SIP. The interagency consultation procedures for the transportation

conformity partners are outlined in the document, Transportation Conformity: A Guide for

Interagency Consultation, which is referenced in the Kentucky transportation conformity rule.

The Commonwealth of Kentucky developed its consultation rule based on the elements

contained in 40 CFR 93.105, 93. 122(a)(4)(ii), and 93.125(c). As a first step, the Commonwealth

worked with the existing transportation planning organization's interagency committee that

included representatives from Kentucky's air quality agency, Kentucky Department of

Transportation (DOT), U.S. DOT (i.e., Federal Highway Administration-Kentucky Division,

Federal Transit Administration), the MPOs of the maintenance and nonattainment areas of

Kentucky, and EPA. The interagency committee met regularly and drafted the consultation rules

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considering elements in 40 CFR 93.105, 93.122(a)(4)(ii), and 93.125(c), and integrated the local

procedures and processes into the rule. The proposed rule provides additional information

regarding Kentucky's analysis and applicable nonattainment and maintenance areas.

III. Final Action

EPA is taking final action to approve the December 31, 2008, SIP revision request from

Kentucky for the purpose of establishing transportation conformity criteria and procedures in the

Kentucky SIP. This SIP revision is consistent with Section 176(c) of the CAA.

IV. 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. 741O(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 proposed action merely approves state

law as meeting Federal requirements and does not impdse additional requirements beyond those

imposed by state law. For that reason, this proposed action:

• is not a "significant regulatory action" subject to review by the Office of Management

and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork

Reduction Act (44 U.S.c. 3501 et seq.);

• is 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.);

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• does not contain any unfunded mandate or significantly or uniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law

104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR

43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject

to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355,

May 22, 2001);

• is 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

• does 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, this rule does 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

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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) ofthe CAA, petitions for judicial review of this action must be

filed in the United States Court of Appeals for the appropriate circuit by [FEDERAL REGISTER

OFFICE: insert date 60 days from date of publication of this document in the Federal Registerl.

Filing a petition for reconsideration by the Administrator of this final rule does not affect the

finality of this action for the purposes ofjudicial 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 I

or action. This action may not be challenged later in proceedings to enforce its requirements.

(See section 307(b)(2).)

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List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide, Incorporation by

reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter,

Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated:

APR - 1 2010

1 April 2010

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Acting Regional Administrator,

Region 4.
40 CFR part 52 is amended as follows:

PART 52-[Al\tIENDED]

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

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

Subpart (S) - Kentucky

2. Section 52.920 is amended by adding an entry for "Conformity of transportation plans,

programs, and projects" to read as follows:

§52.920 Identification of plan.

* * * * *

T bl 1 EPA A dK k R I·

(c) * * * a e - - I.pprove entuc ~y egu atlOns

State citation Title/subject State effective EPA approval Explanation

date date

Chapter 50 Division for Air Quality; General Administrative Procedures

** ** * * *

401 K-AR 50:066 Conformity of 11/1212008 [Insert

transportation date of

plans, programs, publication

and projects. in Federal

(Amendment) Register]

[Insert citation of

publication]

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