ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-0AR-201O-0502-201011; FRLApproval and Promulgation ofImplementation 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 conformityrevisions to the Kentucky State Implementation Plan (SIP) submitted by the CommonwealthofKentucky, through the Kentucky Energy and Environment**Cabi~et's** Division ofAir Quality (KY DAQ). This addition consists oftransportation conformity criteria and procedures related to interagency consultation and enforceability ofcertain transportation-related control measures and mitigation
measures. The intended effectis to establish the transportation conformity criteria and procedures in the Kentucky SIP. This action is being taken pursuantto Section 110 ofthe Clean AirAct (CAA).

EFFECTIVE DATE: This rule will be effective [insert 30 days afterdate ofpublication inthe Federal Register.

ADDRESSES: EPAhas established a docket for this action underDocket Identification No. EPA-R04-0AR-201O-0502. All documents in the docket are listed on the www.regulations.govweb site. Although listed in the index, some information is not publicly available, Le., Confidential Business Information or other information whose disclosure is restrictedby statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only inhard copy form. Publicly available docket materials are available eitherelectronically through www.regulations.gov orinhard copy at the Regulatory· Development Section, AirPlanning Branch, Air, Pesticides andToxics Management Division, U.S. Environmental Protection Agency, Region 4,61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. EPA requests that ifat all possible, you contactthe person listed in the FOR FURTHER INFORMATION CONTACT sectionto schedule your inspection. The Regional Office's official hours ofbusiness are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FORFURTHER INFORMATION CONTACT: Amanetta Somerville, Air Quality Modeling· and Transportation Section, AirPlanning Branch, Air, Pesticides andToxics Management Division, U.S. Environmental Protection Agency, Region4,61 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 ofContents I. Today's Action II. Background 2III. Final Action IV. Statutory and Executive Order Reviews I. Today's Action EPA is taking final action to approve the transportation confonnity section ofthe SIP revision, submittedby the Commonwealth ofKentucky, through KDAQ, on December 31,2008 for the purpose ofestablishing 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) ofthe CAA. In aDecember4,2009, rulemaking notice, EPA proposed approval ofthe aforementioned revision to the Kentucky SIP. The comment period closed on January4,2010, and no comments
were received. A detailed discussion ofKentucky's submittal and EPA's rationale for approval ofthe December 31,2008, Kentucky SIP revision may be found in the proposedrulemaking notice (74 FR 63697). EPA is finalizing the approval as proposedbased on the rationale stated in the proposal and in this final action.

II. Background for this Action A. Transportation Confonnity Transportation confonnity (hereafterreferred to as "confonnity") is required under section 176(c) ofthe Clean AirAct (CAA orAct) to ensure thatfederally supported highway, transit projects, and other activities are consistent with ("confonn to") the purpose ofthe SIP. Confonnity currently applies to areas that are designated nonattainment, and to areas thathave beenredesignated to attainment after 1990 (maintenance areas) with plans developed under 3section 175A ofthe Act, for the following transportation related criteriapollutants: ozone, particulate matter (PM2.5 and PMIQ), carbon monoxide, and nitrogen dioxide. Conformity to the purpose ofthe SIP means that transportation activities will not cause
new air quality violations, worsen existing violations, or delay timely attainment ofthe relevant criteriapollutants, also known as national ambient air quality standards (NAAQS). The transportation conformity regulation is found in40 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 otherthings, the rule required states to address all provisions ofthe conformityrule in their SIPs frequently**referr~d** to
as "conformity SIPs." Under40 CFR 51.390, most sections ofthe conformityrule were required

, to be copied verbatim. States were also required to tailor all orportions ofthe following three sections ofthe 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 improvementprogram 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 aproject-level conformity determination, and the requirement that project sponsors must comply with such commitments, when they exist. 4On August 10, 2005, the "Safe, Accountable, Flexible, EfficientTransportationEquity Act: A Legacy for Users" (SAFETEA-LU) was signed into law. SAFETEA-LU revised section 176(c) ofthe CAA transportation conformity provisions. One ofthe changes streamlines the requirements for conformity SIPs. Under SAFETEA-LU, states are required to address and tailor only three sections ofthe rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93. 122(a)(4)(ii), and40 CFR 93.125(c), described above. In general, states are no longer required to submitconformity SIP revisions that address the other sections ofthe 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 ofKentucky, through the KY DAQ, submittedthe 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, TransportationConformity: A Guide for Interagency Consultation, which is referenced inthe Kentucky transportation conformity rule. The Commonwealth ofKentucky developed its consultation rule based on the elements contained in40 CFR 93.105, 93. 122(a)(4)(ii), and 93.125(c). As afirst 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 TransitAdministration), the MPOs ofthe maintenance and nonattainment areas of Kentucky, and EPA. The interagency committee metregularly and drafted the consultation rules 5considering 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 revisionrequest from Kentucky for the purpose ofestablishing transportation conformity criteria and procedures in the Kentucky SIP. This SIP revision is consistent with Section 176(c) ofthe CAA.



### IV. Statutory and Executive Order Reviews
Under the CAA, the Administratoris required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.c. 741O(k); 40 CFR 52.02(a). Thus, inreviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria ofthe CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impdse additional requirements beyond those imposedby state law. Forthat reason, this proposed action:

• is not a "significantregulatory action" subjectto review by the Office ofManagement and BudgetunderExecutive Order 12866 (58 FR 51735, October4, 1993);

• does not impose an information collection burden underthe provisions ofthe Paperwork Reduction Act (44 U.S.c. 3501 etseq.);

• is certified as nothaving a significant economic impact on a substantial number ofsmall entities underthe Regulatory Flexibility Act (5 U.S.c. 601 etseq.); 

### 6• does notcontain 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 nothave Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significantregulatory action based onhealth or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significantregulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements ofSection 12(d) ofthe National Technology Transfer and AdvancementAct of 1995 (15 U.S.c. 272 note) because application ofthose requirements would be inconsistent with the CAA; and

• does notprovide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specifiedby 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 orpreempt tribal law. The Congressional Review Act, 5 U.S.C. 801 

### etseq., as addedby the Small Business' Regulatory Enforcement Fairness Act of 1996, generally provides that before arule may take 7effect, the agency promulgating the rule must submit arule report, which includes acopy ofthe rule, to each House ofthe Congress and to the ComptrollerGeneral ofthe United States
.. EPA will submit areportcontaining this action and otherrequired information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States priorto publication ofthe rule in the Federal Register. A majorrule cannot take effectuntil 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 forjudicial review ofthis action mustbe filed in the United States Court ofAppeals for the appropriate circuitby [FEDERAL REGISTER OFFICE: insert date 60 days from date ofpublication ofthis document in the Federal Registerl. Filing apetitionforreconsideration by the Administratorofthis final rule does not affect the finality ofthis action for the purposes ofjudicialreview nor does it extend the time within which
apetition forjudicial review may befiled, and shall not postpone the effectiveness ofsuch rule I or action. This action may not be challenged later inproceedings to enforce its requirements. (See section 307(b)(2).)

8List ofSubjects in 40 CFR Part 52 Environmental protection, Air pollutioncontrol, Carbon monoxide, Incorporationby 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

9 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 oftransportation plans, programs, and projects" to read as follows: §52.920 Identification ofplan.



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## * * * k R I· dK T bl 1 EPA A (c) 

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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. inFederal (Amendment) Register] [Insertcitation of publication]

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