Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53665

EPA-APPROVED KENTUCKY NONREGULATORY PROVISIONS

Appendix Title/subject State effective date

EPA approval date Federal Register Notice

*******

21 ............ Negative Declarations for the nonattainment portions of Bullitt and

Oldham Counties in Louisville 1-hour moderate ozone nonattainment area for CTG rules for aerospace, SOCMI, shipbuilding,

and wood furniture manufacturing.

12/14/99 10/23/01 66 FR 53665

22 ............ Negative Declarations submitted by the Air Pollution Control District of Jefferson County for the Louisville 1-hour moderate

ozone nonattainment area for CTG rules for aerospace, shipbuilding, and wood furniture manufacturing.

02/26/01 10/23/01 66 FR 53665

[FR Doc. 01–25893 Filed 10–22–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81

[KY–117; KY–126; KY–129; KY–132–200202;

IN–121–3; FRL–7082–9]

Approval and Promulgation of

Implementation Plans and

Redesignation of Areas for Air Quality

Planning Purposes; Kentucky and

Indiana; Approval of Revisions to State

Implementation Plan; Kentucky

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is determining that the

Louisville moderate 1-hour ozone

nonattainment area (Louisville area) has

attained the 1-hour ozone National

Ambient Air Quality Standard

(NAAQS). The Louisville area includes

Jefferson County, and portions of Bullitt

and Oldham Counties, Kentucky; and

Clark and Floyd Counties, Indiana. This

determination is based on three years of

complete, quality-assured, ambient air

monitoring data for the 1998 to 2000

ozone seasons. On the basis of this

determination, EPA is also determining

that the State Implementation Plan (SIP)

submissions for certain reasonable

further progress (RFP) and attainment

demonstration requirements, along with

certain other related requirements of

part D of title I of the Clean Air Act

(CAA), are not applicable to the area.

EPA is also approving Kentucky’s and

Indiana’s requests submitted March 30,

2001, and April 11, 2001, respectively,

as subsequently supplemented, to

redesignate the Louisville area to

attainment for the 1-hour ozone

NAAQS. In approving these requests,

EPA is approving the plans for

maintaining the 1-hour ozone NAAQS

through 2012, as revisions to the

Kentucky and Indiana (States) SIPs. EPA

is also approving and finding adequate

Kentucky’s and Indiana’s motor vehicle

emission budgets (MVEBs) for volatile

organic compounds (VOC) and nitrogen

oxides(NOX) in the submitted

maintenance plans for transportation

conformity purposes. Approval of the

MVEBs is based in part on commitments

submitted by the States to use the

MOBILE6 mobile emission model

within a specific timeframe when it

becomes available to update the MVEBs.

Finally, EPA is approving sourcespecific Board Orders to control NOX

emissions from 11 sources in Jefferson

County, Kentucky. This action finalizes

EPA’s proposed rulemakings to

determine that the Louisville area has

attained the 1-hour ozone NAAQS; and

to redesignate both the Kentucky and

Indiana portions of the Louisville area

to attainment for the 1-hour ozone

NAAQS, and to approve the 11 sourcespecific NOX Reasonably Available

Control Technology (RACT) Board

Orders as revisions to the Kentucky SIP.

EFFECTIVE DATE: This action will be

effective on November 23, 2001.

ADDRESSES: Copies of Kentucky’s

submittals, as well as other information,

are available for inspection during

normal business hours at the following

locations. U.S. Environmental

Protection Agency, Region 4, Air

Planning Branch, Regulatory

Development Section, 61 Forsyth Street,

SW., Atlanta, Georgia 30303.

Commonwealth of Kentucky, Division

for Air Quality, 803 Schenkel Lane,

Frankfort, Kentucky 40601–1403. Air

Pollution Control District of Jefferson

County, 850 Barret Avenue, Louisville,

Kentucky 40204. Persons wishing to

examine these documents should make

an appointment at least 24 hours before

the visiting day and reference files KY–

117, KY–126, KY–129, and KY–132.

Copies of Indiana’s submittals, as well

as other information, are available for

inspection during normal business

hours at the following locations. U.S.

Environmental Protection Agency,

Region 5, Air and Radiation Division,

Air Programs Branch (AR–18J),

Regulation Development Section, 77

West Jackson Boulevard, Chicago,

Illinois 60604. Indiana Department of

Environmental Management, Office of

Air Quality, 100 North Senate Avenue,

P.O. Box 6015, Indianapolis, Indiana

46206–6015. Indiana Department of

Environmental Management Southwest

Regional Office, 208 NW 4th Street,

Suite 201, Evansville, Indiana 47708–

1353. Persons wishing to examine these

documents should make an

appointment at least 24 hours before the

visiting day and reference file IN–121–

3.

FOR FURTHER INFORMATION CONTACT:

Allison Humphris, Environmental

Scientist, or Raymond Gregory,

Environmental Engineer, U.S.

Environmental Protection Agency,

Region 4, Air Planning Branch,

Regulatory Development Section, 61

Forsyth Street, SW., Atlanta, Georgia

30303, (404) 562–9030, (404) 562–9116,

(Humphris.Allison@epa.gov)

(Gregory.Ray@epa.gov). Mary Portanova,

Environmental Engineer, U.S.

Environmental Protection Agency,

Region 5, Air and Radiation Division,

(AR–18J), Air Programs Branch,

Regulation Development Section, 77

West Jackson Boulevard, Chicago,

Illinois 60604, (312) 353–5954,

(Portanova.Mary@epa.gov)

Table of Contents

I. What is the background for these actions?

II. What comments did we receive and what

are our responses?

III. What actions are we taking?

IV. Why are we taking these actions?

V. What are the effects of these actions?

VI. Administrative requirements

Whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are

used it means EPA.

I. What Is the Background for These

Actions?

The Louisville area was designated as

an ozone nonattainment area in March

53666 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

1978 (43 FR 8962) and designated as the

Louisville moderate 1-hour ozone

nonattainment area on November 6,

1991 (56 FR 56694). The Louisville area

includes Jefferson County, and portions

of Bullitt and Oldham Counties,

Kentucky; and Clark and Floyd

Counties, Indiana. As the result of

programs adopted and implemented by

Kentucky, Indiana and the Air Pollution

Control District of Jefferson County

(APCDJC) to reduce VOC and NOX

emissions since that time, monitors in

the Louisville area have recorded three

years of complete, quality-assured,

ambient air quality monitoring data for

the 1998, 1999, and 2000 ozone

monitoring seasons, demonstrating

attainment of the 1-hour ozone NAAQS.

Preliminary data for the 2001 ozone

season shows continuing attainment.

The initial redesignation requests from

Kentucky and Indiana were submitted

on March 30, 2001, and April 11, 2001,

respectively, and supplemented on July

9, 2001, and August 24, 2001,

respectively.

In a notice of proposed rulemaking

(NPR) published May 17, 2001, (66 FR

27483) we proposed to determine that

the Louisville area has attained the 1-

hour ozone NAAQS. On the basis of this

determination, we also proposed to

determine that the SIP submissions for

certain RFP and attainment

demonstration requirements, along with

certain other related requirements of

part D of title I of the CAA, are not

applicable to the area for so long as the

Louisville area continues to attain the 1-

hour ozone NAAQS. The NPR included

a detailed description and rationale for

EPA’s proposed actions, and provided

for a public comment period on these

actions ending on June 18, 2001. No

comments were received on that NPR

during the comment period.

In an NPR published June 22, 2001,

(66 FR 33505), we proposed to approve

the requests by Kentucky and Indiana to

redesignate the Louisville area to

attainment for the 1-hour ozone NAAQS

and to approve source-specific Board

Orders adopted by the Air Pollution

Control Board of Jefferson County

(APCBJC) to control NOX emissions at

11 sources in Jefferson County. The NPR

included more detailed information and

rationale for these actions, and provided

for a public comment period ending on

July 23, 2001. We received comments

from three commenters.

II. What Comments Did We Receive and

What Are Our Responses?

The summarized comments received

and EPA responses to them are provided

below.

Comment 1—Attainment of the

standard: The commenter believes that

the area has failed to show attainment

of the 1-hour ozone NAAQS. The

commenter points out that EPA’s

Aerometric Information Retrieval

System (AIRS) data base shows that the

Charlestown monitor recorded 3.2

estimated exceedances of the 1-hour

ozone NAAQS in the three-year period

of 1998–2000 and concludes that this

translates to an annual average expected

exceedance rate of more than 1.05

exceedances per year, and therefore

nonattainment.

The commenter also asserts that in

determining that three days of data were

unlikely to be above the standard, EPA

has ignored the potential for

exceedances on the eight other days for

which data was missing. The

commenter claims that additional

information should be considered and

claims that it was ignored. This includes

‘‘the potential for exceedances on days

where no exceedance was recorded, but

where data was not available for all

daytime hours (even if enough data was

available to meet the minimum coverage

of 75 percent of hours)’’. The

commenter also claims that EPA ignored

the historic pattern of exceedances in

this area, in which years with no

exceedances have been followed by

years with multiple exceedances. The

commenter believes that EPA ignored

the concentration levels of ozone

exceedances recorded at Charlestown in

1997–99, pointing out that the design

value for this three-year period was

higher than for the period 1996–98 and

that the peak reading in 1998 at

Charlestown of 0.156 parts per million

(ppm) was one of the highest recorded

in the region in recent years. For these

reasons, the commenter believes that

EPA’s proposal is arbitrary and

capricious, and fails to adequately

consider all of the relevant factors.

Note: Although EPA received no comments

on the proposed determination of attainment

(66 FR 27483, May 17, 2001), the above

comment addresses issues covered in that

NPR. Therefore, the following response

clarifies EPA’s background and rationale for

approving both the proposed determination

of attainment and the proposed

redesignation.

Response 1: The current version of the

AIRS database, EPA’s air quality data

system, calculates that the Charlestown

monitor had 3.2 estimated exceedances

during the 1998 ozone season, based on

the availability of valid AIRS data for

172 out of 183 ozone season days.

However, the program only reflects this

value because of limitations in the

software that are not entirely reflective

of the provisions in the CAA. For 11

days during the 1998 ozone monitoring

season, incomplete air quality data was

available for the Charlestown, Indiana

monitor. Three of these days have been

documented in AIRS to note that EPA

has made a determination, based on

documentation presented by the State,

and in accordance with 40 CFR part 50,

Appendix H, that it is highly unlikely

that the 1-hour ozone NAAQS was

exceeded (for further explanation, see

66 FR 27483, May 17, 2001) on these

three days. 40 CFR part 50, Appendix H

states, in part, that: ‘‘[s]ome allowance

should also be made for days for which

valid daily maximum hourly values

were not obtained but which would

quite likely have been below the

standard.’’ It then suggests a criterion

that ‘‘may be used’’ for ozone.

For one day (August 1, 1998), EPA

determined that the 1-hour NAAQS was

not exceeded based on records of valid

daily maxima below the 75 percent level

of the standard for the Charlestown

monitor for the days immediately

preceding and following this date. This

determination is consistent with the

example criterion provided in 40 CFR

part 50, Appendix H.

For two days early in the 1998 ozone

monitoring season (April 3–4, 1998),

EPA made a similar determination

based on: the State’s explanation of the

site’s failure to collect ozone data during

the period, records of valid daily

maxima well below the standard for the

remaining six Louisville area monitors

on those dates, and overwhelming

evidence that meteorological conditions

were not conducive to ozone formation

(i.e. temperatures between 42 and 58

degrees, overcast skies, showers and

windy conditions). In addition, no

exceedances have ever been recorded at

this monitoring site in early April. This

determination was made in response to

documentation presented by Indiana in

a December 11, 2000 request. These

materials are available for inspection in

the Louisville redesignation dockets.

The determination for these two days is

consistent with 40 CFR part 50,

Appendix H, which EPA interprets as

allowing for use of Agency discretion in

defining conditions for determining

when a missing value may be assumed

to be below the level of the standard.

The estimated exceedances for the

Charlestown monitor are calculated

using the parameters provided in Table

1 and the following equation: e = v +

[(v/n)*(N-n-z)]. Assuming that the 1-

hour ozone NAAQS was not exceeded

for 172 of 183 ozone season days, and

that valid AIRS data was unavailable for

eight days, the Charlestown monitor is

calculated as having a total of 3.1

estimated exceedances for the 1998

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53667

ozone season. This value was

determined in accordance with 40 CFR

50.9 and Appendix H. Since no

exceedance was recorded for 1999 or

2000, the average number of expected

exceedances for this monitor is 1.0

exceedance per year for the 1998

through 2000 three-year period, using

conventional rounding techniques.

Thus, the data indicate that the

Louisville area has attained the 1-hour

ozone NAAQS for this three-year

period.

TABLE 1.—PARAMETERS FOR CALCULATION OF ESTIMATED EXCEEDANCES

Variable description

Value for

Charlestown

monitor for

1998

Comments

e = the estimated number of exceedances for the year, 3.1 Calculated.

N = the number of required monitoring days in the year, 183 Indiana’s ozone season is April 1–September 30

n = the number of valid daily maxima, ...................................................... 172 Days with valid data based on 40 CFR 50 and Appendix H.

v = the number of daily values above the level of the standard .............. 3 Based on monitored values.

z = the number of days assumed to be less than the standard level ...... 3 Based on 40 CFR 50 Appendix H, for days that were

likely below thestandard.

The commenter claims that, in

calculating the 1998–2000 estimated

exceedances for the Charlestown

monitor, EPA did not consider eight of

the 11 days for which no monitoring

data was available. Examination of the

equation and the values used to

calculate the estimated exceedances for

1998 through 2000 shows that this is not

the case. In calculating the correction

factor to account for missing data (i.e.

[(v/n)*(N-n-z)]), EPA does consider the

remaining eight days for which no data

was recorded. EPA adjusts the

difference between the number of

required and actual monitoring days (Nn) only by the number of days for which

no data was recorded and for which we

assumed the daily maximum value to be

below the 1-hour NAAQS (i.e. z=3).

Thus, EPA took the remaining eight

days into account as prescribed in the

CAA and 40 CFR 50.9. We did not

assume that the daily maximum value

for those eight days was below the 1-

hour ozone NAAQS, and we adjusted

the area’s estimated exceedance rate to

account for this assumption.

Regarding the adequacy and

completeness of the remaining

monitoring data used to calculate 1998–

2000 estimated exceedances for the

Charlestown monitor, EPA notes that

there was over 99 percent data

completeness on days meeting the 75

percent completeness test at the

Charlestown site over the three-year

period. Neither the guidance nor 40 CFR

contemplates questioning data that meet

the 75 percent completeness test. There

was also over 97 percent completeness

for all days over the three-year period.

EPA completed a review of the data and

did not find any abnormalities that

would indicate that the Charlestown

monitor was not being run whenever

possible. In addition, Region 5

conducted a performance audit of this

monitor on September 26–27, 2000,

which confirmed the monitor’s

performance to be within acceptable

limits.

The commenter also claims that EPA

ignored the historic pattern of

exceedances for the Louisville area. EPA

has not ignored historical data in

making our determination. Rather, we

looked at the historical data presented

to us by the States in the context of the

provisions of 40 CFR 50.9. When

evaluating whether the 1-hour ozone

NAAQS has been met, the CAA

specifies that EPA must consider the

most recent three years of qualityassured monitoring data. As indicated

above, the data for the most recent

three-year period, i.e., 1998–2000,

indicates attainment. Preliminary 2001

ozone season data indicates that the area

continues to attain the 1-hour NAAQS.

Note that the CAA and EPA guidance

also requires that the improvement in

air quality be attributable to permanent

and enforceable reductions. Our

determination that reductions are

attributable to permanent and

enforceable measures is discussed

further in Response 3.

Comment 2—Fully approved SIP and

all requirements applicable to the area

under section 110 and subpart D: The

commenter indicated that, pursuant to

section 107(d)(3)(E)(ii) of the CAA, EPA

cannot redesignate an area to attainment

unless EPA ‘‘has fully approved the

applicable implementation plan for the

area.’’ The commenter contends that

EPA has yet to fully approve the

applicable implementation plan for the

Louisville area, including the specific

SIP elements identified in subparts A.

through I. of this comment below, as

required by the CAA for moderate ozone

nonattainment areas. Also, pursuant to

section 107(d)(3)(E)(v) of the CAA, EPA

cannot redesignate an area to attainment

unless the state containing the area ‘‘has

met all requirements applicable to the

area under section 110 and part D.’’ The

commenter contends that the States

have not yet met the requirement to

submit approvable plans that satisfy all

CAA-required moderate area ozone SIP

elements. The commenter claims that

the SIP elements identified in subparts

A. through I. of this comment have not

been satisfied for the reasons indicated

below.

Response 2: As described in the

responses to subparts A. through I. of

this comment below, EPA believes that

both the Kentucky and Indiana portions

of the Louisville area have satisfied all

applicable moderate area ozone SIP

requirements. In acting on a

redesignation request, EPA may rely on

any SIP approvals that precede, or are

performed in conjunction with, the final

rulemaking action to redesignate the

area. The September 4, 1992

memorandum from John Calcagni,

Director, Air Quality Management

Division, entitled ‘‘Procedures for

Processing Requests to Redesignate

Areas to Attainment,’’ (September 4,

1992 Calcagni memorandum) allows for

approval of SIP elements and

redesignation to occur simultaneously,

and EPA has frequently taken this

approach in its redesignation actions.

EPA is approving today or has

previously approved all remaining

portions of the SIP that must be

approved prior to redesignation.

Therefore, the Kentucky and Indiana

SIPs are fully approved.

Comment 2A—Attainment

Demonstration: A commenter stated that

under the CAA (42 U.S.C. 7502(c)(1),

(c)(6), 7511a(b)(1); 7511a(j)) a moderate

area is required to submit an attainment

demonstration based on modeling or

other analytical method determined by

EPA to be at least as effective. The

53668 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

commenter contends that since EPA has

not approved an attainment

demonstration for the Louisville area as

required by the CAA, nor have the

States involved submitted an

approvable attainment demonstration,

the requirements of section 110 and part

D have not been met, and that EPA has

not fully approved the SIP as required.

Response 2A: An attainment

demonstration is not required under

EPA’s attainment determination policy,

as set forth in the May 10, 1995,

memorandum from John S. Seitz,

Director, Office of Air Quality Planning

and Standards, entitled ‘‘Reasonable

Further Progress, Attainment

Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone National

Ambient Air Quality Standard,’’ (May

10, 1995, Seitz memorandum). EPA has

explained at length in other actions its

rationale for the reasonableness of that

interpretation of the CAA and

incorporates those explanations by

reference here. See, for example,

Cleveland-Akron-Lorain, Ohio (61 FR

20458, May 7, 1996); Salt Lake and

Davis Counties, Utah (60 FR 36723, July

18, 1995); Grand Rapids, MI (61 FR

31832–33, June 21, 1996); and

Cincinnati-Hamilton, Ohio and

Kentucky (65 FR 37879, June 19, 2000).

EPA also reiterates its position set forth

in the proposed rulemaking to

redesignate the Louisville area (66 FR

33505, June 22, 2001), and in the

proposed rulemaking to determine that

the Louisville area has attained the 1-

hour ozone NAAQS (66 FR 27483, May

17, 2001). Subpart 2 of part D of title I

of the CAA contains various air quality

planning and SIP submission

requirements for ozone nonattainment

areas. EPA believes it is reasonable to

interpret provisions regarding RFP and

attainment demonstrations, along with

certain other related provisions, as not

requiring SIP submissions if an ozone

nonattainment area subject to those

requirements is monitoring attainment

of the 1-hour ozone NAAQS (i.e.,

attainment of the NAAQS demonstrated

with three consecutive years of

complete, quality-assured, air quality

monitoring data). EPA has interpreted

the general provisions of subpart 1 of

part D of title I (sections 171 and 172)

so as not to require the submission of

SIP revisions concerning RFP,

attainment demonstrations, or section

172(c)(9) contingency measures. As

explained in the May 10, 1995, Seitz

memorandum, EPA believes it is

appropriate to interpret the more

specific attainment demonstration and

related provisions of subpart 2 in the

same manner. (See Sierra Club vs EPA,

99 F.3d 1551 (10th Cir. 1996))

The attainment demonstration

requirements of section 182(b)(1) are

that the plan provide for ‘‘such specific

annual reductions in emissions* * *as

necessary to attain the national primary

ambient air quality standard by the

attainment date applicable under the

CAA.’’ If an area has in fact monitored

attainment of the relevant NAAQS, EPA

believes there is no need for an area to

make a further submission containing

additional measures to achieve

attainment. This is also consistent with

the interpretation of certain section

172(c) requirements provided by EPA in

the General Preamble for the

Interpretation of title I of the CAA

Amendments of 1990 (57 FR 13496,

April 16, 1992, supplemented at 57 FR

18070, April 28, 1992) (General

Preamble). As EPA stated in the General

Preamble, no other measures to provide

for attainment would be needed by areas

seeking redesignation to attainment

since ‘‘attainment will have been

reached’’ (57 FR 13564, April 16, 1992).

Upon attainment of the NAAQS, the

focus of state planning efforts shifts to

the maintenance of the NAAQS.

EPA has reviewed the 1998–2000

ambient air ozone monitoring data for

the Louisville area for consistency with

the requirements of 40 CFR part 58. A

discussion of this review is included in

EPA’s proposed determination of

attainment for the Louisville area (66 FR

27483, May 17, 2001) and in the

response to comment 1. On the basis of

this review, EPA has determined that

the Louisville area has attained the 1-

hour ozone NAAQS during the 1998–

2000 period, and is therefore not

required to submit an attainment

demonstration. Since an attainment

demonstration is not required, EPA is

not required to approve an attainment

demonstration as a requisite to

redesignating the Louisville area.

Comment 2B—All reasonably

available control measures (RACM): The

commenter contends that EPA has not

approved a demonstration showing that

the Kentucky and Indiana SIPs provide

for implementation of all RACM as

expeditiously as practicable. 42 U.S.C.

7502(c)(1). The commenter also alleges

that the States have not met this

requirement for the Louisville area. The

commenter contends that EPA has no

authority to waive this requirement,

which applies in addition to the

requirement to demonstrate timely

attainment.

Response 2B: The General Preamble

treats the RACM requirement as a

‘‘component’’ of an area’s attainment

demonstration. The General Preamble

explains that ‘‘section 172(c)(1) requires

the plans for all nonattainment areas to

provide for the implementation of

RACM as expeditiously as practicable.

EPA interprets this requirement to

impose a duty on all nonattainment

areas to consider all available control

measures and to adopt and implement

such measures as are reasonably

available for implementation in the

area’s attainment demonstration.’’ Thus,

EPA’s final suspension of the attainment

demonstration requirement pursuant to

today’s final determination of

attainment also suspends the section

172(c)(1) RACM requirement, since the

latter is a component of the attainment

demonstration.

The General Preamble further states

that ‘‘where measures that might in fact

be available for implementation in the

nonattainment area could not be

implemented on a schedule that would

advance the date for attainment in the

area, EPA would not consider it

reasonable to require implementation of

such measures.’’ Because attainment has

been reached for the Louisville area, no

additional measures are needed to

provide for attainment, nor could the

attainment date for the area now be

advanced through implementation of

RACM. Therefore, no additional RACM

controls beyond what are already

required in the SIP are necessary for

redesignation to attainment.

Comment 2C—RACT: The commenter

contends that EPA has not fully

approved the Kentucky SIP as meeting

the requirement for RACT for all VOC

sources within the nonattainment area,

including each category of VOC sources

covered by Control Technique

Guideline (CTG) documents. The

commenter further contends that

without EPA reopening the public

comment period on the redesignation

proposal, the public will be deprived of

the opportunity to offer fully informed

comment as to whether the state plan as

a whole meets all of the applicable

requirements of section 110 and part D.

Response 2C: As described in the

proposed redesignation (66 FR 33511,

June 22, 2001), Indiana fulfilled all

RACT requirements prior to submittal of

its redesignation request. Likewise,

Kentucky fulfilled most RACT

requirements prior to submittal of its

redesignation request. In two final

actions signed on September 18, 2001,

and a third signed on October 3, 2001,

and published elsewhere in the FR, EPA

approved the following revisions to the

Kentucky SIP: Existing VOC RACT

regulations; new regulations to address

VOC RACT, a source-specific non-CTG

VOC RACT determination, and negative

declarations. These final actions

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53669

addressed all remaining VOC RACT

requirements for Kentucky. EPA had

previously published NPRs that

included proposals for each of these

final actions that provided the public

with adequate opportunity to offer

comments on these revisions to the

Kentucky SIP. Comments were received

on one of the three NPRs. However,

none of these comments addressed the

VOC RACT requirements being

proposed for approval. Since no

comments were received that raised

questions regarding the adequacy of the

relevant VOC RACT requirements, EPA

has issued final approval for these

revisions to the Kentucky SIP.

Therefore, with these actions, in

conjunction with today’s action, the

Kentucky SIP for the Louisville area 1-

hour ozone SIP is fully approved. In

acting on a redesignation request, EPA

may rely on any SIP approvals that

precede, or are performed in

conjunction with, the final

redesignation action. The September 4,

1992 Calcagni memorandum allows for

approval of SIP elements and

redesignation to occur simultaneously,

and EPA has frequently taken this

approach in its redesignation actions.

Thus, all RACT requirements have been

fully adopted by Kentucky and Indiana

and approved by EPA.

Comment 2D—Rate of progress plans:

The commenter contends that the CAA

required the States to obtain EPA

approval of a 15 percent ‘‘rate of

progress’’ plan (RFP plan) for the

Louisville area (section 182(b)(1)).

Although the States submitted such a

plan, the commenter notes that EPA has

not approved the plan. The commenter

asserts that, on this basis, the SIP does

not meet all requirements under section

110 and part D.

Response 2D: The General Preamble

provides EPA’s interpretation of certain

section 172(c) requirements, including

the following interpretation regarding

RFP requirements: ‘‘The requirements

for RFP will not apply in evaluating a

request for redesignation to attainment,

since* * * air quality data* * * must

show that the area has already attained.

Showing that the state will make RFP

towards attainment will have no

meaning at that point.’’

The May 10, 1995, Seitz

memorandum, which sets forth EPA’s

attainment determination policy,

provides a similar position on the RFP

requirement. In this memo, EPA

interprets the general provisions of

subpart 1 of part D of title I (sections

171 and 172) and the more specific

requirements of subpart 2 of part D of

title I so as not to require the submission

of SIP revisions concerning RFP,

attainment demonstrations, or section

172(c)(9) contingency measures, and the

corresponding more specific SIP

revisions identified in subpart 2, for so

long as the subject area is monitoring

attainment of the 1-hour ozone NAAQS.

With regards to the specific requirement

for RFP, whether dealing with the

general RFP requirement of section

172(c)(2) or the more specific RFP

requirements of subpart 2 for classified

ozone nonattainment areas, including

the 15 percent plan requirement of

182(b)(1), ‘‘the stated purpose of RFP is

to ensure attainment by the applicable

attainment date. If an area has in fact

attained the relevant NAAQS, the stated

purpose of the RFP requirement will

have been met, and EPA does not

believe that the area need submit

revisions providing for the further

emission reductions described in the

RFP provisions of section 182(b)(1), and

182(c)(2)(B) and (C).’’

As noted by the commenter, both

States had submitted 15 percent plans

prior to submitting the redesignation

request. EPA approved Indiana’s 15

percent plan (62 FR 24815, May 7,

1997), and Indiana continues to

implement and enforce all regulations

associated with that submittal. EPA also

proposed approval, in the form of a

direct final rulemaking, of Kentucky’s

15 percent plan and the regulations

relied on to achieve those reductions (64

FR 49425, September 13, 1999), but

subsequently withdrew the direct final

rulemaking (64 FR 59644, November 3,

1999). In this final rulemaking, EPA is

taking final action on our determination

of attainment for the Louisville area,

thereby removing the requirement for

the 15 percent plan. Elsewhere in this

FR, in a separate final rulemaking, EPA

concludes that although no action on

the 15 percent plan itself is required, the

regulations submitted by Kentucky with

its 15 percent plan provided permanent

and enforceable reductions during the

1998 through 2000 time period, since

they were implemented prior to 1998,

and EPA approves regulations

submitted by Kentucky as part of its 15

percent plan. That final action ensures

that regulations implemented by

Kentucky prior to attainment of the 1-

hour ozone NAAQS are permanent and

enforceable as part of the SIP, thereby

fulfilling the requirements of section

107(d)(3)(iii), and the requirements for

redesignation.

Comment 2E—New Source Review

(NSR): The commenter points out that

the CAA requires the SIP to include a

preconstruction permit program for new

major sources and modifications within

the nonattainment area (42 U.S.C.

7410(a)(2)(C), 7502(c)(4)&(5), 7503,

7511a(a)(2)(C), and (b)(5)). The

commenter contends that the States

have not met this requirement, and that

EPA has no express authority to waive

this mandate.

Response 2E: Notwithstanding the

current status of the Kentucky and

Indiana SIPs, EPA has determined that

areas being redesignated to attainment

do not need to comply with the

requirement that a part D NSR program

be approved prior to redesignation,

provided that the area demonstrates

maintenance of the applicable NAAQS

without part D NSR in effect. The

rationale for this decision is described

in a memorandum from Mary Nichols

dated October 14, 1994. See also the

discussion in the Grand Rapids,

Michigan action (61 FR 31834, June 21,

1996). The States have demonstrated

that the Louisville area will be able to

maintain the 1-hour NAAQS without

part D NSR in effect, and, therefore,

need not have fully-approved part D

NSR programs prior to approval of the

redesignation request for the Louisville

area. Kentucky’s and Indiana’s PSD

requirements will be applicable and

remain enforceable after the

redesignation of the Louisville area (66

FR 33509–33510, June 22, 2001). See

also the discussion in the final

redesignation rulemaking for the

Cincinnati-Hamilton area (65 FR 37890–

37891, June 19, 2000).

In any event, the Kentucky and the

Indiana SIPs were reviewed to ensure

that they satisfied all CAA requirements

to include a fully-approved part D NSR

program. Section 172(c)(5) mandates

that SIPs require permits for the

construction and operation of new and

modified major stationary sources

anywhere in the nonattainment area.

Section 182(b)(5) requires all major new

sources or modifications in a moderate

nonattainment area to achieve offsetting

reductions of VOCs at a ratio of at least

1.15 to 1.0. For Kentucky, these

requirements were completed through

previously-published final rulemaking

actions, and a final rulemaking action

signed on September 18, 2001, to

approve revisions to Kentucky’s NSR

program that were proposed for

approval on June 21, 2001, (66 FR

33216). Indiana’s part D NSR program

was approved in October 1994.

Comment 2F—Conformity: The

commenter contends that the SIP does

not include conformity procedures as

required by the CAA, and that EPA has

no authority to waive this requirement.

Since the CAA allows redesignation to

attainment only where EPA has fully

approved the implementation plan and

only where the state has met all

requirements applicable to the area

53670 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

under section 110 and part D, the

commenter contends that the area

should not be redesignated.

Response 2F: Kentucky and Indiana

have met the statutory requirement for

submitting approvable general

conformity procedures. EPA approved

the Indiana general conformity rules

effective on March 16, 1998, (63 FR

2146, January 14, 1998). EPA approved

the Kentucky general conformity rules

effective on September 25, 1998, (63 FR

40044, July 27, 1998).

In addition to general conformity,

section 176(c) provides that state

conformity revisions must be consistent

with Federal transportation conformity

regulations that the CAA requires EPA

to promulgate. The Federal

transportation conformity regulations

were finalized on November 24, 1993,

amended on August 7, 1995, and

amended again on August 15, 1997 (40

CFR parts 51 and 93 Transportation

Conformity Rule Amendments:

Flexibility and Streamlining). On March

2, 1999, a court decision (Environmental

Defense Fund v. EPA, 167 F.3d 641

(D.C. Cir. 1999)) rescinded several

sections of the Federal transportation

conformity rule, requiring EPA to revise

those sections of the Federal rule.

Kentucky submitted transportation

conformity rules on November 23, 1994,

and updated this submittal with revised

rules on December 19, 1997. Indiana

submitted transportation conformity

rules on January 23, 1997, and updated

this submittal with revised rules on

April 19, 2001. The revised rules were

adopted by Indiana in 1998 in response

to the August 1997 changes to the

Federal regulations. EPA has not acted

on the submittals from either State, as

they do not address later Federal

transportation conformity regulation

amendments. Once EPA has completed

revisions to the Federal rule to reflect

the 1999 court decision, both States will

need to revise their regulations to

address the changes.

EPA believes it is reasonable to

interpret the conformity requirements as

not applying for purposes of evaluating

the redesignation request under section

107(d). The rationale for this is based on

a combination of two factors. First, the

requirement to submit SIP revisions to

comply with the conformity provisions

of the CAA continues to apply to areas

after redesignation to attainment, since

such areas would be subject to a Section

175A maintenance plan. Second, EPA’s

Federal conformity rules require the

performance of conformity analyses in

the absence of Federally approved state

rules. Therefore, because areas are

subject to the conformity requirements

regardless of whether they are

redesignated to attainment and must

implement conformity under Federal

rules if state rules are not yet approved,

EPA believes it is reasonable to view

these requirements as not applying for

purposes of evaluating a redesignation

request. EPA has explained its rationale

and applied this interpretation in

numerous redesignation actions. See

redesignations for: Tampa, Florida (60

FR 52748, December 7, 1995);

Jacksonville, Florida (60 FR 41, January

3, 1995); Miami, Florida (60 FR 10325,

February 24, 1995); Grand Rapids,

Michigan (61 FR 31835, June 21, 1996);

and Cleveland-Akron-Lorain, Ohio (61

FR 20458, May 7, 1996). The U.S. Court

of Appeals for the Sixth Circuit recently

upheld this interpretation in Wall v.

EPA, No. 00–4010, Slip Op. at 21–24

(6th Cir. September 11, 2001). The Court

upheld EPA’s view that failure to

submit a revision that meets part D

transportation conformity requirements

is not a basis to deny a redesignation

request. Consequently, EPA may

approve Kentucky’s and Indiana’s 1-

hour ozone redesignation requests

notwithstanding the lack of fully

approved conformity SIPs.

Comment 2G— NOX SIP Call: The

commenter contends that under 42

U.S.C. 7410(a)(2)(D)(i) the SIP must

include provisions to prohibit emissions

that will contribute significantly to

nonattainment in, or interfere with

maintenance by, any other state. The

commenter asserts that EPA has

specifically determined that emissions

from the States Kentucky and Indiana

contribute significantly to ozone

nonattainment in downwind states, and

issued a SIP Call to require additional

NOX controls in each State’s SIP to

address this problem. The commenter

contends that this indicates that each

State’s SIP does not fully meet all of the

requirements under section 110. The

commenter believes that EPA cannot

find the SIP Call requirement

inapplicable for the purposes of

redesignation.

Response 2G: EPA believes that

submissions under the NOX SIP call

should not be considered applicable

requirements for purposes of evaluating

a redesignation request. Nevertheless,

Indiana adopted the NOX SIP Call rules

on June 6, 2001, and submitted them for

parallel processing on March 20, 2001,

with a final submittal on August 20,

2001. EPA signed a final FR approving

Indiana’s rules on September 27, 2001.

Therefore, Indiana has met the NOX the

SIP Call submission requirements.

Kentucky submitted regulations for

parallel processing on February 20,

2001. EPA is currently awaiting

supplemental information before

determining if the Kentucky NOX SIP

Call submittal is approvable. However,

the requirement to submit complete SIP

revisions under the NOX SIP call

continues to apply to the area after

redesignation to attainment. Therefore,

Kentucky remains obligated to ensure

its submittal is complete and approvable

even after redesignation, and would risk

sanctions for failure to do so.

The NOX SIP Call requirements are

not linked with a particular

nonattainment area’s designation and

classification. EPA believes that the

requirements linked with a particular

area’s designation and classification are

the requirements that are the relevant

measures to evaluate in reviewing a

redesignation request. The NOX SIP call

submittal requirements continue to

apply to the States regardless of the

designation of any one particular area in

these States. The NOX SIP Call

submissions are required to reduce

emissions affecting downwind areas,

not to address air quality in the

designated Louisville ozone

nonattainment area.

Thus, we do not agree that the NOX

SIP Call submission requirement should

be construed to be an applicable

requirement for purposes of

redesignation. The section 110 and part

D requirements which are linked with a

particular area’s designation and

classification are the relevant measures

to evaluate in reviewing a redesignation

request. This policy is consistent with

EPA’s existing redesignation policies

regarding conformity and oxygenated

fuels requirements, as well as with

section 184 ozone transport

requirements. See Reading,

Pennsylvania proposed and final

rulemakings (61 FR 53174–53176,

October 10, 1996; and 62 FR 24826, May

7, 1997); Cleveland-Akron-Lorain, Ohio

final rulemaking (61 FR 20458, May 7,

1996); and Tampa, Florida final

rulemaking (60 FR 62748, 62741,

December 7, l995).

Comment 2H—Serious area

requirements: One commenter stated

that because the Louisville area failed to

attain by its applicable attainment date

of November 15, 1996, or the extended

attainment date of November 15, 1997

(64 FR 27734, May 21, 1999), the

Louisville area must be reclassified to

‘‘serious’’ and must meet all of the

requirements for serious areas prior to

redesignation.

Response 2H: Prior to the proposed

determination of attainment (66 FR

27483, May 17, 2001), EPA approved a

one 1-year extension of the Louisville

area’s attainment date (62 FR 55173,

October 23, 1997) making its new

attainment date November 15, 1997. On

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53671

May 21, 1999, (64 FR 27734), EPA

proposed to find that the Louisville area

failed to attain the 1-hour ozone

NAAQS by its extended attainment date

of November 17, 1997. Alternatively,

EPA proposed in this same notice to

extend the Louisville area’s attainment

date, provided Kentucky and Indiana

submit SIPs pursuant to EPA’s notice of

proposed interpretation entitled,

‘‘Extension of Attainment Dates for

Downwind Transport Areas’’ (64 FR

14441, March 25, 1999) by November

15, 1999. Provided the States met the

extension policy criteria and EPA

proposed to approve the States’

submittals, EPA would then be able to

propose a specific extended attainment

date in that same notice. Kentucky and

Indiana submitted attainment

demonstration SIPs by the November

15, 1999, deadline, and were in the

process of finalizing these submittals in

the fall of 2000. At this same time,

preliminary monitoring data for the

2000 ozone season indicated that the

Louisville area was attaining the 1-hour

ozone NAAQS for the 1998 to 2000

three-year period. This attainment status

was confirmed when Kentucky and

Indiana provided early certification of

their 2000 ozone season monitoring data

as complete, accurate, quality-assured in

accordance with 40 CFR part 58, and

recorded in AIRS on January 16, 2001,

and January 11, 2001, respectively.

Thus, EPA was in the process of

reviewing the requests to extend the

Louisville area’s attainment date when

the area, in fact, attained the 1-hour

ozone NAAQS. Since the Louisville area

has attained the 1-hour ozone NAAQS

and submitted an approvable

maintenance plan, the additional

requirements for a ‘‘serious’’ area are not

needed.

Comment 2I— NOX RACT: EPA

proposed to approve various sourcespecific NOX RACT orders from

Kentucky as part of the SIP (66 FR

33505, June 22, 2001). The commenter

notes that EPA’s longstanding definition

of RACT is ‘‘the lowest emission

limitation that a particular source is

capable of meeting by the application of

control technology that is reasonably

available considering technological and

economic feasibility.’’ (44 FR 53762,

September 17, 1979). The commenter

contends that the material in the

proposed rulemaking action (66 FR

33505, June 22, 2001) does not

demonstrate that the proposed emission

limits are in fact RACT. The commenter

contends that to determine RACT for

these sources, EPA must at least

examine NOX control technologies in

use throughout the nation and

elsewhere, select one or more

technologies as RACT for each category,

and document why any more effective

technologies are not technically and/or

economically feasible. That EPA has

failed to provide such analysis here.

(The commenter also claims to identify

several specific deficiencies with

respect to individual sources and

categories. These are described and

responded to as subparts of this

comment).

Response 2I: On November 12, 1999,

and May 23, 2001, Kentucky submitted

Board Orders approved by APCBJC for

the 11 major NOX sources located in the

Louisville area. A Board Order is a

regulatory instrument adopted by an air

pollution control board which specifies

air pollution control limits or

requirements for a specific source or

company. EPA reviewed each Board

Order at both the prehearing and formal

submittal stage for adequacy in meeting

the requirements of NOX RACT as

defined in the November 25, 1992,

Nitrogen Oxides Supplement to the

General Preamble; CAA Amendments of

1990 Implementation of title I (57 FR

55625) ( NOX Supplement). The original

November 12, 1999, submittal included

Board Orders for 10 sources, but EPA

concluded that only two of these Board

Orders satisfied RACT. Following

extensive consultation between APCDJC

and EPA, Kentucky submitted revised

Board Orders for the remaining eight

sources, and for one additional major

NOX source, all of which EPA

determined to satisfy RACT.

Comment 2Ia—Louisville Gas and

Electric (LG&E) emission limits: EPA

proposes to approve emission limits

ranging from 0.47 to 0.52 pounds NOX

per million British thermal unit (lb/

mmBtu) for LG&E electric generating

units. The commenter contends that

EPA does not explain why most of these

limits are so much higher than the

Ozone Transport Commission (OTC)

phase II limit, which is the less stringent

of 0.2 lb/mmBtu or a 65 percent

reduction. The commenter claims that

EPA estimates that the phase II

reductions will be achieved at a cost of

$1,600 per ton—a level that EPA has

determined to be reasonably achievable.

The commenter contends that in the

absence of an adequate explanation or

analysis of this discrepancy, EPA cannot

determine that the proposed limits

constitute RACT.

Response 2Ia: NOX RACT for each of

the sources located in the Louisville

area, including LG&E’s Cane Run and

Mill Creek Generating Stations, was

determined based on EPA’s

interpretation of what constitutes RACT

as presented in the NOX Supplement.

The OTC is comprised of several

northeastern states, and the programs

and emission limits established by OTC

for purpose of controlling NOX

emissions in the northeast are

applicable only to those states.

The NOX Supplement considers

RACT for utilities to be ‘‘the most

effective level of combustion

modification reasonably available to an

individual unit. This implies low-NOX

burners. * * *’’ EPA determined that,

in the majority of cases, such controls

result in an overall level of control

equivalent to maximum allowable NOX

emission rates of 0.45 and 0.50 lb/

mmBtu, respectively, for tangentiallyfired and wall-fired coal-burning

electric utility boilers, with compliance

based upon a 30-day rolling average

emission rate. EPA further determined

that ‘‘the actual NOX emission reduction

that can be achieved on a specific boiler

depends on a number of site-specific

factors * * *’’

The initial Board Orders for these two

facilities, submitted November 12, 1999,

addressed EPA’s prehearing concern

that compliance with the established

emission limits must be determined

based on a 30-day rolling average

emission rate. However, EPA

commented that Kentucky increased the

emission limits over the presumptive

RACT limit provided in the NOX

Supplement, making them

unapprovable absent further

justification. Specifically, the November

12, 1999 Board Orders included

emission limits of 0.49 lb/mmBtu for the

tangentially-fired units (Mill Creek

boilers 1 and 2 and Cane Run boiler 6)

and 0.55 lb/mmBtu for the wall-fired

units (Mill Creek boilers 3 and 4 and

Cane Run boilers 4 and 5) located at

these facilities. To support why these

two sources could not meet presumptive

RACT levels, Kentucky provided

documentation showing that the

selected acid rain controls for

compliance with title 4 requirements—

low-NOX burners—were installed on

these boilers and operated as designed

on a regular basis. Kentucky further

demonstrated, using Continuous

Emission Monitoring data from the

sources, that reasonable emission limits

for these boilers, based on a 30-day

rolling average compliance period and

appropriate operation of the installed

controls, were 0.47 lb/mmBtu for the

three tangentially-fired units and 0.52

lb/mmBtu for the four wall-fired units.

On May 23, 2001, Kentucky submitted

revised Board Orders for the LG&E Cane

Run and Mill Creek facilities that

specify emission limits of 0.47 for three

tangentially-fired coal-burning utility

53672 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

boilers and 0.52 for four bottom wallfired coal-burning utility boilers.

EPA therefore determined that

Kentucky has required a RACT level of

control for these facilities by installing

the most effective, reasonably available

controls, documenting the actual NOX

emission reduction achieved through

appropriate operation of those controls,

and requiring the corresponding

emission limits in the final Board

Orders for these facilities. The unitspecific nature of these requirements

also assures a greater level of control

than could be achieved through an

‘‘overall [facility-wide] level of control,’’

which the NOX Supplement uses to

establish presumptive RACT limits.

Comment 2Ib—Setting emission

limits for some sources: For several

source categories, EPA proposes to

approve limits on capacity factors,

rather than actual emission limits. The

commenter contends that the notice

does not explain why these constitute

RACT, when other states have set

numeric NOX RACT emission limits for

the same or similar source categories.

See EPA’s October 17, 1995, Summary

of NOX RACT Rules (available at

www.epa.gov/ttn/caaa/t1pgm.htm). The

commenter further contends that the

proposal conflicts with EPA’s NOX

RACT guidance, which indicates that

EPA expects that NOX RACT for sources

other than electric utility boilers to be

set at levels at least comparable to RACT

guidance levels for electric utility

boilers (57 FR 55620, November 25,

1992).

Response 2Ib: Capacity factors that

limit the operation of coal- and gas-fired

boilers at facilities to less than 10

percent of total capacity were included

in the Board Orders for five facilities in

lieu of emission limits. However, all of

the boilers subject to capacity limits are

back-up or emergency units that are

operated on a very infrequent basis. In

fact, most of these units were not

operated during the 2000 and/or 2001

ozone seasons. Thus, total ozone season

emissions from the capacity-limited

units in recent years have been so low

that additional controls or extensive

monitoring are clearly not cost-effective

and therefore not justified. The Board

Orders do establish emission limits for

all primary boilers in use at these

facilities that satisfy RACT. Taken

together, these different approaches for

addressing emissions from primary and

back-up boilers ensure that the

emissions from these five facilities

comply with RACT. The five Board

Orders also require these facilities to

record the amount, type and heat

content of fuel combusted each day for

each boiler subject to a 10 percent

capacity limit; the capacity factor for

each of these boilers must also be

calculated and recorded monthly.

Finally, the facilities must submit a

semi-annual report documenting all

deviations from NOX RACT Plan

requirements. These comprehensive

usage and reporting requirements

ensure that emissions from the subject

boilers for all five facilities will

continue to represent RACT. In

summary, due to limited operating

hours, the costs to control these units

would be very high for a small amount

of emission reductions.

For three of the five facilities, the

boilers subject to 10 percent capacity

factors are gas-fired. Low usage rates,

combined with the clean-burning,

inherently lower-emitting nature of

these gas-fired boilers (0.20 lb/mmBtu

or less) ensure that total emissions from

these units will be minimal. The Board

Order for one of these facilities—Oxy

Vinyls—establishes a 10 percent

capacity factor for one gas-fired boiler

that serves as a back-up unit for the two

primary coal-fired boilers. In actuality,

this gas-fired boiler was not operated

during the 1999 or 2000 ozone seasons.

However, even if operated at 10 percent

capacity, total potential NOX emissions

for this unit would be significantly

lower than could be achieved by

establishing a RACT emission limit for

the unit, assuming operation at full

capacity. In addition, emissions from

the two primary coal-fired boilers

effectively dwarf emissions from the

capacity-limited gas boiler by

comparison. Installation of controls on

the latter unit would be non-cost

effective and impracticable. The second

facility—Ford Louisville Assembly

Plant—has three gas-fired boilers subject

to a 10 percent capacity factor. Two of

these boilers were not operated in 2000

or 2001. The third was operated for a

short time in October of one year for

testing purposes. The third facility—

Rohm and Haas—has one primary gasfired boiler, and one back-up gas-fired

boiler subject to a 10 percent capacity

factor. Emissions from the latter could

potentially comprise a greater portion of

this facility’s total emissions. However,

the Rohm & Haas Board Order also

requires this boiler to meet a 0.20 lb/

mmBtu emissions limit in the event that

it is unable to comply with the 10

percent capacity limit. This boiler was

operated at less than three percent

capacity in 2000.

The Board Order for the fourth

facility, GE Appliances, establishes a 10

percent capacity factor for each of five

secondary backup coal-fired boilers. The

primary energy source for the facility is

a clean-burning methane gas boiler, and

the secondary energy source is a gasfired boiler subject to an emissions limit

of 0.2 lb/mmBtu. During the 2000 ozone

season, four of the coal-fired boilers

were not used and the fifth had a usage

rate equivalent to two percent of its total

capacity. During the 2001 ozone season,

none of these five boilers were operated.

In addition to the above-mentioned

recordkeeping and reporting

requirements that all five facilities must

meet, the GE Appliances Board Order

requires this facility to conduct a

thorough maintenance or ‘‘tune-up’’ of

each of the five coal-fired boilers prior

to the start of the ozone season. It also

requires even more extensive

maintenance on one of these five

boilers—to be identified by May 1 of

each year as the primary backup among

these five boilers. The required semiannual report submitted by GE

Appliances must document all

maintenance activities performed on

these boilers to verify that the preseason ‘‘tune-up’’ was completed and

that the boilers continued to be wellmaintained on an ongoing basis.

The Board Order for the fifth facility,

the Louisville Medical Center Steam

Plant, establishes a 10 percent capacity

factor for each of two coal-fired boilers

that are designated as third-level backup

for the primary boilers at the source.

The Board Order establishes emission

limits that satisfy RACT for the primary,

and first- and second-level backup

boilers in use at the facility. During the

2000 ozone season, the two coal-fired

boilers subject to 10 percent capacity

limits were not operated.

Comment 2Ic—Texas Gas

Transmission delayed compliance dates:

The commenter points out that EPA

proposes to approve delayed

compliance dates for various emission

limits applicable to Texas Gas

Transmission. Some of these dates are

during 2002, and one is during 2004.

The commenter contends that EPA

cannot approve NOX RACT with such

delayed compliance dates. The CAA

required adoption and implementation

of NOX RACT in Louisville long ago,

and EPA has no authority to approve

orders that allow for delayed

compliance.

Response 2Ic: Based on review of the

November 12, 1999, submittal, EPA

noted that the turbine lacked controls

and identified several types of controls,

including dry low NOX controls, that

appeared to be viable RACT choices.

Absent adequate justification, EPA

required the facility to install controls

on this unit. Texas Gas agreed to install

dry low NOX controls on the turbine in

2004. Installation could not be done in

2001–2002, because the facility will be

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53673

1The design value is typically the fourth highest

ozone concentration recorded at a monitor over a

three-year period. This value is calculated for each

monitor and the highest value is the design value

for the area.

installing RACT controls on the Internal

Combustion Engines (ICEs) during that

timeframe, and requires that either the

ICEs or the turbine be operational at all

times. Following installation of these

controls, this facility will have fulfilled

the CAA requirement to implement NOX

RACT.

Comment 3—Showing that air quality

improvement is due to permanent and

enforceable reductions: The commenter

asserts that neither the States nor EPA

have shown that air quality

improvements are due to permanent and

enforceable emission reductions, as

required by 42 U.S.C. 7407(d)(3)(E)(iii).

The commenter asserts that although

States have adopted measures that have

produced some emission reductions,

EPA has not demonstrated that these

reductions are responsible for the area’s

improved air quality or the absence of

violations. The commenter holds that

the only way to reliably make such a

showing is through photochemical grid

modeling. The commenter further

asserts that given the complex chemistry

and meteorology of ozone formation, the

combination of NOX and VOC emission

reductions that might be attributable to

the cited measures could just as easily

lead to increases in ozone

concentrations. The commenter

contends that the lack of violations in

1998–2000 could be due to weather

patterns or changes in transport of

ozone precursors. The commenter

further contends that the States did not

offer other technically sound analysis

showing that air quality improvements

are due to permanent and enforceable

emission reductions.

Response 3—Our policy does not

specify that photochemical grid

modeling is required for all ozone

nonattainment areas to demonstrate that

permanent and enforceable emission

reductions have produced

improvements in air quality. See the

September 4, 1992, Calcagni

memorandum; the General Preamble;

‘‘State Implementation Plan (SIP)

Requirements for Areas Submitting

Requests for Redesignation to

Attainment of the Ozone and Carbon

Monoxide (CO) National Ambient Air

Quality Standards (NAAQS) on or after

November 15, 1992,’’ Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation, September 17,

1993; and ‘‘Use of Actual Emissions in

Maintenance Demonstrations for Ozone

and CO Nonattainment Areas,’’ D. Kent

Berry, Acting Director, Air Quality

Management Division, November 30,

1993.

We have found that reductions in

ozone precursor (VOC and NOX)

emissions (emission inventory

approach) have brought many areas

across the country into attainment.

Reductions in ozone precursor

emissions similar to the reductions that

have taken place in the Louisville area

have been confirmed in photochemical

grid modeling to reduce ambient ozone

concentrations. EPA has approved many

ozone redesignations showing decreases

in ozone precursor emissions resulting

in attainment of the 1-hour ozone

NAAQS. See redesignations for

Charleston, West Virginia (59 FR 30326,

June 13, 1994; and 59 FR 45985, Sept.

6, 1994); Greenbrier County, West

Virginia (60 FR 39857, Aug. 4, 1995);

Parkersburg, West Virginia (59 FR

29977, June 10, 1994; and 59 FR 45978,

Sept. 6, 1994); Jacksonville/Duval

County, Florida (60 FR 41, January 3,

1995); Miami/Southeast, Florida (60 FR

10325, February 24, 1995); Tampa,

Florida (60 FR 62748, December 7,

1995); Lexington, Kentucky (60 FR

47089, September 11, 1995);

Greensboro, North Carolina (58 FR

47391, September 9,1993); Indianapolis,

Indiana (59 FR 35044, July 8, 1994; and

59 FR 54391, October 31, 1994); South

Bend-Elkhart, Indiana (59 FR 35044,

July 8, 1994); Evansville/Vanderburgh

County, Indiana (62 FR 12137, March

14, 1997, and 62 FR 64725, December 9,

1997); Canton, Youngstown-Warren,

Ohio (61 FR 3319, January 31, 1996);

Cleveland-Akron-Lorain, Ohio (60 FR

31433, June 15, 1995, and 61 FR 20458,

May 7, 1996), Clinton County, Ohio (60

FR 22337, May 5, 1995, and 61 FR

11560, March 21, 1996); Columbus,

Ohio (61 FR 3591, February 1, 1996);

Kewaunee, Manitowoc, and Sheboygan

Counties, Wisconsin (61 FR 29508, June

11, 1996; and 61 FR 43668, August

26,1996); Walworth County, Wisconsin

(61 FR 28541, June 5, 1996, and 61 FR

43668, August 26, 1996); Pointe Coupee

Parish, Louisiana (61 FR 37833, July 22,

1996, and 62 FR 648, January 6, 1997);

and Monterey Bay, California (62 FR

2597, January 7, 1997). Most of the areas

that have been redesignated to

attainment for the 1-hour ozone NAAQS

have continued to attain the standard.

Areas that are not maintaining the 1-

hour ozone NAAQS are implementing

maintenance plans designed to bring

them back into attainment. The U.S.

Court of Appeals for the Sixth Circuit

recently upheld EPA’s emissions

inventory approach for maintenance

plans as a basis for approval of those

plans in Wall v. EPA, supra at 17–19.

Between 1990 and 1999, VOC

emissions in the Louisville

nonattainment area have decreased areawide by more than 112 tons per day.

These emissions reductions are due to a

number of permanent and enforceable

regulatory programs, including the

Federal Motor Vehicle Emissions

Control Program, fleet turnover of

automobiles, implementation of Stage II

vapor recovery program,

implementation of VOC RACT, lower

Reid vapor pressure gasoline,

restrictions on open burning,

regulations covering landfill emissions,

and ceased operation and improved

technology at facilities in the Louisville

area. Kentucky also instituted

regulations regarding rule effectiveness

and mandated the use of reformulated

gasoline in the nonattainment area.

Additional reductions in Indiana

resulted from regulations for VOC

storage tanks, shipbuilding/ship repair,

wood furniture coating, automobile

refinishing, and the implementation of

an improved vehicle Inspection and

Maintenance (I/M) program and a

ridesharing program. Since the 1999

attainment year, the States have

increased the rule effectiveness of Stage

I vapor control and have implemented

additional Federal regulations on such

emission sources as architectural

coatings, traffic paints, auto-body

refinishing, and commercial/consumer

products rules.

It is a technically sound and

acceptable analysis to show that air

quality improvements are due to

permanent and enforceable emission

reductions by demonstrating a decline

in ozone levels which corresponds to

the implementation of the enforceable

reductions. An analysis of the ozone

values in the Louisville area shows that

ambient ozone concentrations dropped

after this combination of ozone

precursor reductions occurred. Ozone

air quality monitoring data shows that

the design value 1 changed from 0.149

ppm during the 1987–1989 time period

to 0.123 ppm during the 1998–2000

time period. The decline in ozone

concentrations indicates that the

reduction in ozone precursor emissions

in the area has contributed to improved

air quality and helped bring about

attainment of the 1-hour ozone NAAQS.

The Louisville area’s decrease in ozone

levels is consistent with what other

areas have experienced.

While the complex chemistry and

meteorology of ozone formation is a

factor, the combination of NOX and VOC

emission reductions in the Louisville

area have lead to decreases in ozone

concentrations, not increases. The

commenter has not provided data

53674 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

2The weather data for Louisville used to develop

Tables 2 and 3 was derived from the average of the

two weather zones covering Louisville (Kentucky

zones 2 and 3)

showing that similar decreases in ozone

precursor emissions have led to higher

levels of ozone elsewhere. Nor did the

commenter supply evidence to support

the conclusion that the absence of

violations during 1998–2000 was due to

weather patterns or changes in transport

of ozone precursors. Climatological data

for the Louisville area from the National

Oceanic and Atmospheric

Administration 2 (http://

www.cdc.noaa.gov/USclimate/

USclimdivs.html) shows that during the

1998–2000 ozone seasons, local weather

conditions were, in fact, more favorable

for high ozone concentrations than low

concentrations. This data is summarized

in Tables 2 and 3. The fact that weather

conditions and transport may have a

substantial effect on ozone

concentrations, both in terms of

increasing ozone and decreasing ozone,

cannot be controlled. We use a threeyear averaging period to account for the

year-to-year difference in weather

conditions. In the Louisville area, the

fact that the preliminary ozone data for

2001 continues to demonstrate

attainment of the 1-hour ozone NAAQS

increases our confidence that

meteorology has not been the

controlling factor in the area’s

attainment.

Table 2 shows the ranking (percentile)

for each year of the average

temperatures over the April—October

period (ozone season) for the listed

years compared to the long term average

(1895 to 1999). A rank or value of 100

represents the highest temperature

percentile and is given to the hottest

year. Correspondingly, rank of one

represents the lowest temperature

percentile and is given to the coolest

year. Table 3 shows the standard

deviation for the average temperature

anomaly (in degrees Fahrenheit) over

recent three-year ozone seasons

compared to a contemporary long-term

average of temperature (1971–2000). In

this table, warmer periods are indicated

by larger positive values. If favorable

weather conditions had been a large

factor in Louisville’s attainment of the

standard, then one would have expected

the attainment period to have been

cooler than the previous nonattainment

period (1997–1999). Instead, during the

attainment period of 1998–2000, average

temperatures were above the long term

average (+1.24) from Table 2. Table 2

also shows that the three attainment

years (1998–2000) were relatively warm,

ranked in the 82th, 79nd, and 49st

percentiles respectively. The

temperature rankings and anomalies

indicate that the ozone seasons with

violations were less conducive to ozone

formation based on temperature than

the attainment period of 1998–2000

with no violations.

TABLE 2.—TEMPERATURE PERCENTILES (RANKING) FOR THE OZONE

SEASONS

Year

Temperature

percentiles

(ranking) for

Louisville,

Kentucky

1990 .................................. 19

1991 .................................. 92

1992 .................................. 5

1993 .................................. 30

1994 .................................. 29

1995 .................................. 67

1996 .................................. 23

1997 .................................. 5

1998 .................................. 82

1999 .................................. 79

2000 .................................. 49

TABLE 3.—COMPOSITE TEMPERATURE

ANOMALIES 1 FOR APRIL—OCTOBER

VERSUS 1971–2000 AVERAGE

Three year period of April–

October data 2

Temperature

anomaly for

Louisville, KY

1992–1994 ........................ ¥0.72

1993–1995 ........................ 0.22

1994–1996 ........................ 0.10

1995–1997 ........................ ¥0.50

1996–1998 ........................ ¥0.23

1997–1999 ........................ 0.45

1998–2000 ........................ 1.24

2The standard deviation for temperature

anomaly in degrees Fahrenheit.

The above data shows that the

weather conditions in the 1998–2000

attainment years were not unusually

favorable towards lower levels of ozone,

and that the area has attained the 1-hour

ozone NAAQS despite this warmer than

average weather. The combination of

this analysis of the meteorological

conditions in conjunction with the

existence of adopted emission controls

demonstrates that the improvement in

air quality is due to permanent and

enforceable emission reductions. In

light of this information, EPA believes

that photochemical grid modeling is not

necessary to support this conclusion,

nor is it required by the CAA or

guidance.

Comment 4A—Maintenance

demonstration using adequate methods:

One commenter stated that the

attainment inventory approach was

inadequate, and that modeling shows

continued nonattainment through 2007

and beyond. The specific details of the

commenter’s remarks and EPA’s replies

are addressed below in the comments

and responses identified as 4Aa, 4Ab,

and 4Ac.

Comment 4Aa—Demonstration of

maintenance: The commenter asserts

that the plan does not demonstrate

maintenance as required by the CAA,

and that EPA has proposed to find

maintenance on the presumption that

the area will always be in attainment if

emissions remain at or below estimated

1999 levels. The commenter contends

that since the area violated the NAAQS

in the 1997–99 period, holding

emissions to 1999 levels will not assure

attainment. The commenter further

contends that EPA regulation and

guidance explicitly require modeled

maintenance demonstrations in multistate ozone nonattainment areas like

Louisville, where modeling was

required for the attainment

demonstration (see 40 CFR 51.112; 65

FR 6711, rejecting use of rollback

analysis for making attainment and

nonattainment predictions; and the

September 4, 1992, Calcagni

memorandum). The commenter insists

that until EPA approves such a

modeling demonstration, it cannot

approve the maintenance plan.

Response 4Aa: In evaluating

Kentucky’s and Indiana’s maintenance

plans, EPA determined that the

Louisville area’s ability to demonstrate

attainment for the 1998–2000 time

period indicates that the attainment year

(1999) level of emissions is adequate to

keep the area in attainment

(maintenance) for at least the next 10

years. Pursuant to EPA policy, states

may demonstrate maintenance by

preparing an attainment emissions

inventory corresponding to the period

during which the area monitored

attainment and showing that future

emissions will stay below the

attainment emissions inventory. (See

September 4, 1992, Calcagni

memorandum). The Louisville area

emissions are indeed projected to

remain below the 1999 level for the next

10 years. Holding emissions at or below

the level of attainment is, in EPA’s view,

‘‘adequate to reasonably assure

continued maintenance of the 1-hour

ozone NAAQS.’’ Thus, under EPA’s

interpretation, the air quality will be

maintained by keeping emissions below

the attainment emissions level,

continuing to monitor ozone levels, and

having maintenance plan contingency

measures available. As noted above, in

response to comment 3, the U.S. Court

of Appeals for the Sixth Circuit recently

upheld EPA’s emissions inventory

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53675

approach to evaluating maintenance

plans in Wall v. EPA, supra at 17–19.

According to the September 4, 1992,

Calcagni memorandum, ‘‘many areas are

required to submit modeled attainment

demonstrations to show that proposed

reductions in emissions will be

sufficient to attain the applicable

NAAQS. For these areas, the

maintenance demonstrations should be

based upon the same level of modeling.

In areas where no such modeling was

required, the State should be able to rely

on the attainment inventory approach.’’

This guidance does not, as the

commenter suggests, require an area

such as the Louisville area to submit

modeled attainment demonstrations

when the States have already produced

actual quality-assured data showing

attainment. Therefore, the maintenance

demonstration need not be based on

modeling. As provided for by the

September 4, 1992, Calcagni

memorandum, ‘‘[a] State may generally

demonstrate maintenance of the

NAAQS by either showing that future

emissions of a pollutant or its

precursors will not exceed the level of

the attainment inventory or by modeling

to show that the future mix of sources

and emission rates will not cause a

violation of the NAAQS.’’ Kentucky and

Indiana are not required to submit a

modeled attainment demonstration to

support their redesignation request,

since EPA has concluded that this

requirement is not applicable so long as

the area actually attained the 1-hour

ozone NAAQS. Therefore, EPA has

determined that an attainment

demonstration that includes

photochemical grid modeling is not

needed to show that the area has

attained the 1-hour ozone NAAQS.

Since the States were not required to

submit a modeled attainment

demonstration under EPA’s established

interpretation of the statute and its

longstanding policy, the States need not

submit a modeled maintenance

demonstration. EPA finds that the States

can rely on the attainment inventory

approach as was done here.

In addition, citing 40 CFR 51.112, the

commenter contends that EPA’s

regulations require modeling to show

that a maintenance plan is adequate.

Section 51.112 provides in relevant part,

that ‘‘[e]ach plan must demonstrate that

the measures, rules and regulations

contained in it are adequate to provide

for the timely attainment and

maintenance of the national standard

that it implements.’’ Both the language

and the context of this regulation

indicate that it applies to attainment

demonstrations, and not to stand alone

maintenance plans submitted under

CAA section 175A. There is no

reference in the regulation to modeling

requirements applicable to a section

175A plan revision for the sole purpose

of providing maintenance and not

attainment.

Moreover, even if the regulation could

be construed as applying such a

requirement, by its own terms, the

regulation provides authority for EPA to

modify requirements through notice and

comment rulemaking. The rulemaking

proposing redesignation of the

Louisville area (66 FR 33505, June 22,

2001) addresses the attainment

inventory approach in the maintenance

plan, requests comments, and concludes

that a modeled demonstration is not

required to demonstrate maintenance

under the statute. Many of the ozone

areas for which EPA has approved

ozone redesignations have used an

emissions inventory approach to

demonstrate maintenance. Indeed, the

majority of areas have continued to

maintain the 1-hour ozone NAAQS

using that approach. There are ozone

monitors located in the Louisville area

to ensure that the area’s air quality

remains below the level set by the onehour ozone NAAQS. Additionally, areas

that are not maintaining the 1-hour

ozone NAAQS have contingency

measures in a maintenance plan to bring

them back into attainment. See

redesignations listed above in Response

3.

Comment 4Ab—Tier 2/Gasoline

Sulfur Ozone Modeling Analysis: The

commenter asserts that a modeling

analysis set forth in EPA’s Tier 2/

Gasoline Sulfur Ozone Modeling

Analysis, contradicts the premise that

the Louisville area’s maintenance plan

is adequate to maintain the 1-hour

ozone NAAQS for the required 10 year

period. Specifically, the commenter

contends that the Louisville area was

included in the Tier 2 modeling analysis

as among those that are certain or highly

likely to require additional emission

reductions in order to attain and

maintain the 1-hour ozone NAAQS.

Response 4Ab: In the Tier 2

rulemaking, EPA used a regional ozone

modeling system to predict ozone levels

in many cities as part of an analytical

process to characterize the risk that

there would be nonattainment in a large

and geographically broad number of

areas. The Tier 2 modeling involved

many approximations and assumptions

because it was conducted for a very

large region. While ozone predictions

and the characterization of the risk of

nonattainment in individual areas was a

step toward reaching a conclusion about

risks across the group of areas that

characterization was not a finding by

EPA of violations for any specific area.

In addition, EPA’s decision to approve

the Louisville maintenance plan is

based on more recent air quality data

than was taken into account in the Tier

2 rulemaking. The Tier 2 rulemaking

reflected only air quality data through

1998; it did not reflect the additional

two years of air quality data in which

the Louisville area attained the 1-hour

ozone NAAQS. This is clear from the

Tier 2 notice (65 FR 6709, February 10,

2000) which indicated that Louisville

was included on a list of areas ‘‘that

have current violations of the 1-hour

NAAQS.’’ (See also the discussion of

this issue in the final redesignation

rulemaking for the Cincinnati-Hamilton

area 65 FR 37882–37883, June 19, 2000).

The Louisville area is not now nor

was it in violation of the 1-hour ozone

NAAQS at the time it was proposed to

be redesignated. In fact, the preliminary

air quality data for the Louisville area

for 2001 indicates continued attainment.

In addition, the emission inventory

projections in the maintenance plans

show that total NOX and VOC emissions

decline between 1999 and 2012. When

the air quality data is combined with a

downward trend in total emissions,

there is an even stronger basis for not

relying completely on the Tier 2 ozone

modeling. Even so the Tier 2 reductions

are the type of additional reductions

that will help ensure maintenance for

the next 10 years. The U.S. Court of

Appeals for the Sixth Circuit recently

upheld EPA’s decision to treat Tier 2

findings as inapplicable to an evaluation

of an area’s maintenance plan in a

redesignation action (see Wall v. EPA,

supra at 19–20).

Even if there is some risk of lapse,

that would not preclude the

redesignation of the Louisville area. In

drafting the CAA, Congress did not

presume that an area will always be in

attainment (62 FR 650). In fact, Congress

specifically contemplated that future

violations may occur and therefore

required that EPA fully approve a

maintenance plan and contingency

measures for an area consistent with the

requirements of section 175A of the

CAA before that area can be

redesignated to attainment (See 42

U.S.C. 7407(d)(3)(E)(iv)). If the area

monitors a violation, then the

contingency measures required by

section 175A to be included in the

maintenance plan would be triggered to

bring the area back into attainment.

Clearly, the CAA and Congress

anticipated that areas redesignated to

attainment may violate the NAAQS in

the future, and Congress ensured in the

CAA that control measures to remedy

53676 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

3Estimated exceedances take into account actual

monitored exceedances and account for days where

there is missing data or the data was invalidated

(See Response 1).

the violation are available if such

violations occur.

Comment 4Ac—Correlation of

emission levels with ozone levels: The

commenter asserts that EPA cannot

assume that emission levels correlate

with ozone levels in a linear or

consistent fashion. Because the

Charlestown and New Albany monitors

violated the 1-hour NAAQS through

1999 and recorded more exceedances in

1997–98 than in 1995–96, even though

emissions were declining, the

commenter concludes that the States’

attainment inventory approach is not a

reliable predictor of future attainment.

Response 4Ac: We believe that the

monitoring data confirms that the 1999

level of emissions is adequate to keep

the area in attainment. Table 4

summarizes the number of estimated

exceedances at each monitor in the area

from 1995 through 2000. It is considered

a violation of the 1-hour ozone

NAAQS 3 if the average expected

exceedances over a three year period

total more than 1.0 at any one monitor

(See 40 CFR 50.9 and Appendix H).

During 1999 and 2000 exceedances of

the 1-hour ozone standard were

measured at only one of the Louisville

area monitors. The Buckner monitor in

Oldham County, Kentucky had 1.2

exceedances in 1999. Therefore, over

the three-year averaging period from

1998 through 2000, there were

exceedances but no violations of the 1-

hour ozone NAAQS.

TABLE 4.—LOUISVILLE AREA 1-HOUR OZONE NAAQS ESTIMATED EXCEEDANCES FROM 1995 TO 2000

Year

Indiana sites Kentucky sites

Charlestown,

Clark County

New Albany,

Floyd County

Shepherdsville,

Bullitt County

Bates,

Jefferson

County

Watson,

Jefferson

County

WLKY–TV

Jefferson

County

Buckner,

Oldham

County

1995 ......................................... 2.1 1.0 0.0 1.0 1.0 0.0 0.0

1996 ......................................... 0.0 1.0 0.0 0.0 1.0 1.1 0.0

1997 ......................................... 3.1 2.0 1.2 1.0 0.0 0.0 2.1

1998 ......................................... 1 3.1 2.0 0.0 1.2 1.2 1.1 1.1

1999 ......................................... 0.0 0.0 0.0 0.0 0.0 0.0 1.2

2000 ......................................... 0.0 0.0 0.0 0.0 0.0 0.0 0.0

1See Response 1 for explanation of the derivation of this value.

Several factors which cannot be

controlled have an effect on ozone

formation, most notably meteorology

and the presence of transported ozone

or transported ozone precursors. EPA

addresses meteorological variations by

using long term averaging (EPA’s 3-year

ozone averaging period) and evaluating

the effectiveness of a local control

strategy during ozone-conducive years.

As Response 3 described, the local

control strategy for Louisville has been

effective during warmer than average

years. See Tables 2 and 3. See also the

discussion of this issue in the final

redesignation rulemaking for the

Cincinnati-Hamilton area (65 FR 37886–

37887, June 19, 2000).

The commenter states that ‘‘[b]oth the

Charlestown and New Albany monitors

violated the 1-hour NAAQS through

1999, and both recorded more

exceedances in 1997–98 than in 1995–

96.’’ In order to test the commenter’s

contention that temperature (weather)

not emission reductions brought about

the lower ozone concentrations in the

Louisville area, we ranked the average

ozone-season temperatures for the years

the commenter referenced. The

percentile table (Table 2) compares each

year’s average temperature to the

average temperature during the period

1895–2000, ranks the years from coolest

to warmest. Table 2 (see Response 3)

shows that the rankings of 1997–1998

are 5 and 86 respectively, and the

rankings of 1999–2000 to be 82 and 51

respectively. It also lists the rankings for

the years of 1995–1996 as 69 and 24

respectively.

If weather is the sole or most

significant influence on ozone levels,

then the period with a lower

temperature ranking should have a

lower number of ozone exceedances The

year 1997 was cooler but had more

exceedances than 1995 or 1996. During

the period 1998–1999, with the two

highest temperature rankings between

1995 and 2000, there were fewer

exceedances than in the 1996–1997 or

1997–1998 periods. Given that ozone

exceedances did not occur more

frequently in apparently ozoneconducive high-temperature years

(1998–1999), it seems reasonable to

conclude that the improvement in air

quality that occurred during this

timeframe in the Louisville area is due

to permanent and enforceable emission

reductions. See also the discussion of

this issue in the final redesignation

rulemaking for the Cincinnati-Hamilton

area (65 FR 37886, June 19, 2000). Based

on its analyses, EPA continues to

believe that reductions in ozone

precursors do lead to measurable ozone

decreases, and therefore, the attainment

inventory approach used by the States is

an appropriate predictor of future

attainment. Wall v. EPA, supra at 17–19.

Comment 4B—Understatement of

future emissions: The commenter

contends that even if the emissions

inventory approach was otherwise

defensible here, Kentucky has failed to

demonstrate that emission reductions

projected for future years will in fact be

achieved. The Kentucky appears to rely

in part on reductions claimed in their 15

percent rate of progress plans, but EPA

has never determined that the plans

actually demonstrate the claimed

emission reductions. The commenter

insists that the reductions claimed from

various 15 percent plan measures, as

well as from other measures, are not

creditable. Specifically, the commenter

claims that Kentucky’s Regulation 1.18

(Rule Effectiveness) does not require

any specified minimum level of

emission reduction, and that because

the content of each rule effectiveness

plan is determined solely by the source,

these plans provide no assurance of any

emission reductions at all. The

commenter also claims that emission

reductions resulting from Regulation

6.43 (VOC Reduction Requirements) are

not creditable, because Kentucky raised

questions about the legality of adopting

this regulation, and the reductions

claimed are also dependent on the

adequacy of the APCDJC’s emissions

trading program, which EPA has not

approved.

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53677

Response 4B: EPA is publishing

elsewhere in this FR its final rulemaking

action approving regulations contained

in Kentucky’s 15 percent plan. EPA

hereby incorporates the rationale and

responses of that rulemaking by

reference. As EPA explains in that

rulemaking, EPA’s final attainment

determination renders EPA approval of

Kentucky’s 15 per cent plan

unnecessary, since that requirement is

no longer applicable. Thus no specific

credits are being approved as part of the

15 percent plan. Notwithstanding this

circumstance, EPA has taken final

action to approve the control measures

contained in the plan, and these

measures will continue to be

implemented after redesignation.

Therefore, all reductions by these

control measures are permanent and

enforceable and will continue to be

achieved after redesignation. Indiana’s

15 percent plan was approved on May

7, 1997 (62 FR 24815).

Comment 4C—Lack of resource and

enforcement commitments: A

commenter contends that the

maintenance plan is also not approvable

because it lacks enforcement programs

and commitments of legal authority and

resources to implement all of the

measures, as required by the CAA (42

U.S.C. 7410(a)(2)(E)). The commenter

claims that EPA simply assumes that the

various measures relied on for

continued and future emission

reductions will continue to be

implemented. See also 40 CFR 51.111,

51.280, 57 FR 13498, 13564 (1992).

Response 4C: The States have

committed to select and implement the

maintenance plan contingency measures

within 18 months of a violation of the

1-hour ozone NAAQS. The commenter

provided no evidence that the

maintenance plan fails to satisfy section

110(a)(2)(E). The CAA does not require

a separate level of enforcement for a

maintenance plan as a prerequisite to

redesignation. The enforcement program

approved for, and applicable to, the SIP

as a whole also applies to the

maintenance plan. The U.S. Court of

Appeals for the Sixth Circuit recently

upheld EPA’s approval of a

maintenance plan without requiring a

separate commitment of resources and

authority (see Wall v. EPA, supra at 17–

19).

EPA approved the Kentucky ozone

SIP on January 25, 1980, (45 FR 6092)

and the Indiana ozone SIP on January

18, 1983, (48 FR 2124), as meeting all

of the requirements of section 110,

which included section 110(a)(2)(F), the

predecessor of current section

110(a)(2)(E). EPA has consistently

interpreted section 107(d)(3) as allowing

EPA to rely on prior approvals of SIP

provisions when reviewing

redesignation requests. The September

4, 1992, Calcagni memorandum

describes procedures that EPA regions

should use to evaluate requests to

redesignate areas to attainment status.

The memo states: ‘‘An area cannot be

redesignated if a required element of its

plan is the subject of a

disapproval.* * * However, this does

not mean that earlier issues with regard

to the SIP will be reopened. Regions

should not reconsider those things that

have already been approved and for

which the Clean Air Act Amendments

did not alter what is required.’’ EPA

does not need to reconsider the issue of

whether the Kentucky or Indiana SIPs

met section 110(a)(2)(E) requirements

prior to redesignation. Southwestern

Pennsylvania Growth Alliance v.

Browner, 144 F.3d 984 (6th Cir. 1998).

Even if violations subsequently occur,

this does not conclusively establish that

state enforcement is so inadequate as to

make the state enforcement program

deficient under the CAA. EPA has not

made such a finding, and even if an area

is redesignated, EPA retains authority to

make a finding of failure to implement

under section 173(b) of the CAA or to

require a SIP revision under section

110(a)(2)(H) if it concludes that state

implementation and enforcement is

deficient. The state would thus remain

subject to EPA authority to improve its

enforcement even after the area is

redesignated. For purposes of

redesignation, the area has a fully

approved SIP.

Comment 4D—Lack of accurate

estimate of Tier II benefit: The

commenter contends that there is no

accurate estimate of Tier 2 benefits.

Since EPA has recognized that better

data will be available after the issuance

of MOBILE6, the commenter believes

that, EPA cannot allow the state to claim

credit in its future year emissions

projections for a specific level of Tier 2

reductions. The commenter asserts that

without the Tier 2 reductions claimed,

it does not appear that future year VOC

emissions will be lower than 1999

emissions, and therefore, EPA cannot

approve the maintenance

demonstration.

Response 4D: EPA requires that

maintenance plans reflect expected

actual emission rates (see September 4,

1992, Calcagni memorandum). Hence,

once rules are finalized and enforceable,

they need be considered when

preparing maintenance plans and

establishing MVEBs. The MVEBs

represent the emissions budgets for

motor vehicles and are closely related to

the emission reductions from the Tier 2

program. EPA requires that 1-hour

ozone maintenance plans contain

MVEBs for ozone precursors. In order to

find MVEBs in plans adequate, EPA

requires that the MVEBs be consistent

with the control measures in the

submitted maintenance plan (40 CFR

93.118(e)(4)(v)). EPA believes that once

a regulation is finalized and we know

that the reductions will occur, it is best

professional practice, and thereby

required by EPA guidance, to account

for those reductions in plan

development. The final Tier 2 low

sulfur rulemaking was published on

February 10, 2000, (65 FR 6697). In this

case, the maintenance plans, and the

MVEBs, contained in these plans, need

to reflect the reductions achieved by the

Tier 2 rulemaking.

EPA first estimated emission

reductions from Tier 2 for serious and

severe 1-hour ozone attainment

demonstration areas in a memorandum,

‘‘1-Hour Ozone Attainment

Demonstrations and Tier 2/Sulfur

Rulemaking,’’ from Lydia N. Wegman,

Director, Air Quality Standards Division

of the Office of Air Quality Planning

and Standards and Merrylin Zaw-Mon,

Director, Fuels and Energy Division of

the (then) Office of Mobile Sources to

the Air Directors of EPA Regions 1–6, on

November 8, 1999. This memorandum

was the result of a detailed analysis to

determine the best way to estimate the

reductions from Tier 2 given the fact

that MOBILE6 had not yet been

released. The purpose of the

memorandum was to advise the EPA

Regional offices of the relationship

between 1-hour ozone attainment

demonstrations and the emissions

reductions that will be achieved by the

Tier 2 rule and to provide emissions

data related to that rule. A copy of this

memorandum and the associated

spreadsheet is available on the EPA web

site at http://www.epa.gov/ttncaaa1/t1/

meta/m10433.html.

Subsequently, in April 2000, the

Office of Transportation and Air Quality

(OTAQ) issued an information sheet so

that other areas could use the emission

reduction methodology that was used to

determine the reductions for the serious

and severe ozone areas. That

information sheet is titled, ‘‘MOBILE5

Information Sheet #8—Tier 2 Benefits

Using MOBILE5’’ and is also available

on the OTAQ website at http://

www.epa.gov/oms/m5.htm.

In order to derive these estimates,

OTAQ developed a special version of

MOBILE called ‘‘Modified MOBILE5b/

Version2,’’ for the Tier 2 rulemaking.

Full documentation of the methods used

to develop the estimates for VOC and

NOX Tier 2 emission reductions are

53678 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

available in the Tier 2 Docket. To briefly

summarize here, highway vehicle

emissions were first estimated using

MOBILE5b with input files that

described specific conditions (I/M

program, temperatures, fuel parameters,

and registration distribution). The

resulting emission factors were then

multiplied by correction factors in order

to simulate emission factors that would

result from proposed changes in

MOBILE to be incorporated in

MOBILE6. Correction factors were

developed for both a base case (without

Tier 2 control) and a Tier 2 control case.

Because the factors used were based on

default national MOBILE inputs and for

the reasons described above, we do

recognize that the results should be

viewed as interim approximations

which may change when MOBILE6

becomes available.

The differences in grams per mile

shown in the tables (see ‘‘MOBILE5

Information Sheet #8—Tier 2 Benefits

Using MOBILE5’’ April 2000) can be

multiplied by the appropriate local

vehicle miles traveled (VMT) to develop

estimates of Tier 2 reductions in any

area in any year starting in 2004. These

Tier 2 reductions would then be

subtracted from the total on-highway

mobile emissions that were calculated

using MOBILE5a or MOBILE5b and

existing MOBILE information sheets.

EPA understands and acknowledges

the limitations of this information and

the potential inaccuracies introduced by

the use of national defaults and differing

baselines. We also recognize the need,

consistent with our guidance, to be able

to estimate reductions from this

program now, since it is a final rule that

we know will provide emission

reductions within the scope of the 20

year transportation plans, as well as 10

year maintenance plans. Recognizing

that this is an interim approach, EPA

has required both Kentucky and Indiana

to update the MVEBs in their

maintenance plans within two years

after the release of MOBILE6 and

furthermore, any new conformity

analysis in the Louisville area can not

be found to conform during the second

year until budgets based on MOBILE6

calculations are in place.

The modeling process is constantly

improving and EPA looks forward to the

release of MOBILE6 as an improved

MOBILE modeling tool that will fully

incorporate the Tier 2 reductions. Until

that time, EPA has established this

interim approach so that state air quality

planning initiatives can continue to

make progress toward clean air goals.

Furthermore, recognizing the limitations

of this approach, EPA has required and

the States have committed to use

MOBILE6 to develop new MVEBs.

Comment 4E—Mobile source budget:

The commenter points out that, given

the VOC MVEB safety margin originally

proposed by the States in their

submittals, the area does not in fact

show that 2012 emissions of VOCs will

be less than 1999 emissions. The

commenter contends that EPA cannot

allow the state to revise the

maintenance plan (MVEB safety margin)

to correct the deficiency in the

amendments to the submittal without

providing another public notice and

comment opportunity prior to approval

of the redesignation request and the

maintenance plan.

Response 4E: In the FR proposing

approval of the redesignation requests,

EPA specified the changes that the

States intended to make to their VOC

MVEB and proposed approval of their

plans only if those plans were amended

to incorporate the changes. After

receiving the submittals, EPA had

pointed out this error in the MVEB

safety margin to the States. To remedy

this issue, Kentucky submitted a letter

on May 17, 2001, and Indiana submitted

a letter on May 29, 2001, indicating

their intent to revise the maintenance

plans so that the amended documents

would include an approvable VOC

MVEB of 48.17 tons/day, 2.76 tons/day

less than the MVEB included in the

original submittal. Based on the States’

letters, EPA was able to specify the

exact VOC MVEB of 48.17 tons/day that

the States were planning to adopt in

their maintenance plans. Our proposed

approval demonstrated how this revised

VOC MVEB would affect the

maintenance plan and that the revised

2012 VOC emission projections were

less than the 1999 attainment year

emissions. The proposal also stated that

we could only take final approval action

on the maintenance plans if they were

in fact revised to include the 48.17 tons/

day VOC MVEB consistent with an

approvable maintenance plan.

As noted by the commenter, it is very

important that there should be an

opportunity for public notice and

comment on all significant aspects of a

plan. Each revised VOC MVEB was

subjected to public hearing with

opportunity for public comment.

Kentucky’s hearing was held on May 16,

2001, and Indiana’s was held July 30,

2001. Neither State received any public

comments regarding the revised VOC

MVEB. Since there has been public

notice with comment periods on this

VOC MVEB at both the state and federal

level, and no public comment has been

received on the technical merits of the

MVEB itself, EPA does not believe an

additional public comment period is

necessary.

Comment 5—Contingency plan: Two

commenters contend that the

contingency measures contained in the

maintenance plans submitted by the

States do not adequately address the

CAA requirement to include measures

that ‘‘assure that the State will promptly

correct any violation of the standard

which occurs after the redesignation of

the area.’’ 42 U.S.C. § 7505a(d). The first

commenter claims that EPA does not

explicitly address this requirement in

the proposed rulemaking: ‘‘Nowhere has

EPA proposed to find that the

maintenance contingency plan for

Louisville ‘assures’ prompt correction of

future violations. Nor is there anything

in the record to support such a finding.’’

The commenter further contends that

the contingency measures do not meet

the requirements of EPA guidance (see

September 4, 1992, Calcagni

memorandum), to ‘‘clearly identify the

measures to be adopted, a schedule and

procedure for adoption and

implementation, and a specific time

limit for action by the State.’’(Note:

Responses to the detailed comments for

this item are addressed below as

Responses 5A–5F).

Comment 5A—Need for clearlydefined contingency measures:

Regarding the requirement in EPA

guidance to ‘‘clearly identify the

measures to be adopted,’’ both

commenters contend that the measures

identified in Kentucky’s and Indiana’s

plans must be more clearly defined. The

first commenter notes that contingency

measures in both maintenance plans

have yet to be adopted, and consist

solely of ‘‘lists of largely undefined

categories of measures * * *[or] other

as-yet unidentified measures * * *.’’

The commenter further contends that

the subject maintenance plans ‘‘[provide

no] procedure for quantifying the

reductions needed to correct ambient

violations, or any estimate of the

potential emission reduction benefit

from the listed measures, it provides no

basis for concluding that these

measures, if ever adopted, would assure

correction of any violations.’’ The

second commenter argues for the

importance of having ‘‘a more specific

plan to require additional reductions

from stationary sources and other

sources that can be [readily]

implemented by Board Order’’, based on

‘‘the difficult history of District efforts to

secure across-the-board reductions as

part of the 15 percent plan.’’

The first commenter claims that more

specificity is needed for the Kentucky

measures pointing out that ‘‘the

Kentucky list includes ‘more restrictive

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53679

new source review requirements’ and

‘more rigorous vehicle emissions testing

program’, without giving any indication

of how much ‘more restrictive’ or ‘more

stringent’ the state has in mind.’’ The

second commenter states that the

contingency measures to require

‘‘implementation of a program to require

additional emission reductions at

stationary sources for specific types of

processes or an across-the-board

reduction for the larger stationary

sources’’ and ‘‘more restrictive new

source review requirements’’ should be

better defined prior to approval of the

plan.

In providing more specific arguments

of the need for clearly-defined

contingency measures in Indiana’s

maintenance plan, the first commenter

notes that the list of contingency

measures includes ‘‘such items as

‘broader’ geographic applicability of

existing programs, and application of

RACT to ‘smaller’ sources, without

giving any definition to these vague

terms.’’

Response 5A: EPA believes that

Kentucky’s and Indiana’s maintenance

plans, and the contingency measures

contained in those plans, are consistent

with the structure and intent of the CAA

requirements and EPA guidance, and

provide adequate assurances of

adequate public health benefits. The

description of the contingency measures

contained in the maintenance plans

satisfies the CAA requirement to assure

prompt correction of any monitored

violations. As stated in the September 4,

1992, Calcagni memorandum, ‘‘For

purposes of section 175A, a State is not

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. However, the contingency

plan is considered to be an enforceable

part of the SIP and should ensure that

the contingency measures are adopted

expediently once they are triggered.’’ As

the commenter notes, the guidance later

states that the measures to be adopted

should be clearly identified. EPA

believes that the measures are

adequately identified, and that the goal

of returning the area to attainment as

expediently as possible may be most

effectively achieved by reviewing and

refining the precise levels and scope of

the contingency measures at the time

they are required to be put into effect.

Each of the contingency measures now

contained in the maintenance plans will

clearly achieve emission reductions and

contribute to reattainment of the 1-hour

NAAQS in the event of a violation.

Newer control programs that would be

more effective or advantageous for the

area may also be developed after the

area is redesignated to attainment.

Selecting and adjusting the stringency of

the measures that will most effectively

bring the area back into attainment may

best be performed at the time of

response to a violation.

As noted by the commenter, and as

the above excerpt from the guidance on

contingency measures goes on to say,

‘‘* * * the contingency plan is

considered to be an enforceable part of

the SIP and should ensure that the

contingency measures are adopted

expediently once they are triggered.’’

Kentucky’s maintenance plan satisfies

this requirement by establishing a clear

schedule to ensure expeditious adoption

of clearly defined contingency measures

in the event of a violation. First, in the

event of a monitored exceedance or if

periodic emission inventory updates

reveal a greater than 10 percent increase

in ozone precursor emissions, Kentucky

and APCDJC will identify and evaluate

existing control measures, and assess,

using available data and technical

analyses, the amount of emission

reductions needed to ensure that

repeated exceedances of the 1-hour

ozone NAAQS or further emissions

increases do not occur. In the event of

an actual violation, they must adopt,

within nine months, ‘‘one or more

* * *contingency measures to reattain

the standard.’’ The maintenance plan

allows Kentucky the freedom to select

the appropriate emission control

strategy from a number of emission

control measures (including not only

one of the contingency measures listed

in the plan, but also additional

contingency measures if new, more

advantageous control programs are

developed for the area), but it must still

demonstrate to the EPA that the

emission controls will be adequate to

prevent future violations of the ozone

NAAQS. This demonstration process

will likely be expedited by considering

the results of the evaluation completed

to address the exceedances that

preceded the violation; that evaluation

should provide the agencies with the

basis for identifying, at the time, which

of these control measures would be

most effectively used to achieve the

needed reductions and restore the area

to attainment. In summary, the schedule

presented by the maintenance plan

ensures the adoption of contingency

measures within nine months of a

violation. The inclusion of somewhat

broad, but still clearly identified,

categories of contingency measures in

the maintenance plan, provides

Kentucky with flexibility to select the

most effective measure(s) available,

while ensuring compliance with the

contingency measures requirement.

Kentucky must implement such

measure(s) within 18 months following

the confirmation of a 1-hour ozone

NAAQS violation in accordance with

175A(b). EPA believes that these are

sufficient to assure that the

Commonwealth will promptly correct

any violation of the standard which

occurs after the redesignation of the

area.

Indiana’s maintenance plan also

provides for expeditious action to

address future ozone increases. If an

ozone exceedance is monitored, or if the

level of VOC or NOX for the entire

Louisville area increases above the 1999

baseline, Indiana would study the

situation and choose appropriate control

measures from those listed in its

contingency plan. Some of the measures

identified in Indiana’s list of

contingency measures are clearly

defined and could be readily adopted

and implemented by the State. The full

scope of some other measures in

Indiana’s plan has not been specifically

prescribed, but this allows the State to

determine an appropriate level of

control to address future ozone

exceedances effectively and

economically. The State would adopt

and implement these control measures

as expeditiously as possible, and in no

case later than 18 months after Indiana’s

contingency plan is triggered. If there is

a monitored violation of the 1-hour

ozone NAAQS in the Louisville area

(more than 1.0 expected exceedances

over a 3-year period), Indiana has

committed to choose, adopt, and

implement suitable control measures

within 18 months.

Finally, the requirement to adopt any

control measures needed to attain the

NAAQS as part of the SIP gives the

public assurance that these measures

will be carried out, if necessary, through

federal enforcement or citizen suit. The

CAA places the burden on the state to

demonstrate that its plan, at all times,

provides for attainment and

maintenance of the NAAQS, through

federally enforceable emission

reductions sufficient to avoid violations

of the NAAQS. The CAA also provides

protections to the public in the event

that state plans are not fully and

successfully implemented to achieve the

scheduled emission reductions and air

quality improvements. These

protections include federally imposed

nonimplementation sanctions and

opportunities for citizens to sue to

compel implementation.

Comment 5B—Need for prompt

implementation schedule: Regarding the

requirement in EPA guidance to ‘‘clearly

53680 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

identify * * * a schedule and

procedure for adoption and

implementation,’’ the second

commenter contends that the schedule

for implementation of contingency

measures in the event of a monitored

violation, as contained in Kentucky’s

maintenance plan, fails to ‘‘assure * * *

prompt correct[ion of] any violation’’.

This schedule allows Kentucky to take

up to nine months to adopt, and another

nine months to implement, regulatory

contingency measures in the event of a

monitored violation of the 1-hour ozone

NAAQS, which, the commenter

contends, is not an assurance of prompt

correction of the violation.

Response 5B: EPA believes that the

schedule requiring adoption of

contingency measures within nine

months of a confirmed violation,

followed by implementation of the

associated regulatory programs within

18 months of a confirmed violation,

constitutes prompt, responsive

implementation. While in some

instances, an identified contingency

measure may be adopted and

implemented in less than 18 months,

more often, a number of complicating

factors lengthen the time to complete

these actions. For example, in the case

of stationary source controls,

development of the necessary regulation

or source-specific SIP revision

specifying additional controls may

occur quickly. However, even using

emergency rulemaking procedures, the

adoption process may take several

months. For many types of controls,

nine months to install and ensure

proper operation of those controls is an

ambitious schedule. In the case of many

transportation control measures, as

noted by one of the commenters,

obtaining the necessary budgets or

acquiring the necessary property for

such measures may entail consultation

with numerous local county or city

governments or transportation

management agencies. Thus,

implementation of these measures may

proceed quickly following adoption of

these measures, but adoption of these

measures within nine months from the

date of violation is a very expeditious

schedule. Overall EPA deems the

schedule to comply with the

requirements of 175A(d).

Comment 5C—Authority to

implement: The second commenter

contends that the Kentucky and APCDJC

air pollution control agencies lack the

legal ability to promptly implement

contingency measures identified in the

plan, making those measures

‘‘insufficient under Section 175A(d).’’

The commenter contends that the

agencies cannot assure prompt

implementation of measures requiring

‘‘local county or city (or soon, merged

city-county) government budgetary or

regulatory action.’’ Therefore, ‘‘[f]or

each of the proposed contingency

measures, the state and local air

pollution district should be required to

explain whether the agency has the

authority to implement the contingency

measure, and whether that measure

would be implemented by Board Order

or by regulation.’’

The commenter specifically requests

additional explanation of the agencies’

authority to implement several types of

measures. The commenter notes that

‘‘new construction of pedestrian and

non-motorized vehicles would require

several activities beyond the control of

state and local air pollution control

agencies including budgeting for

construction using funds not available

to the air pollution district,* * * which

would have to be allocated by local or

state government, and [would also

require] dedication or acquisition of

areas for such construction.’’ The

commenter also notes that ‘‘the state

and local agencies should be required to

assess and document whether they have

the legal authority to adopt tripreduction ordinances, to restrict road

access to HOVs [high occupancy vehicle

lanes], to limit parking and vehicle use

in areas of emission concentration, and

to broaden emission testing programs.’’

No challenge is made to Indiana’s

authority to promptly implement

contingency measures.

Response 5C: Chapters 224.10–

100(30) and 77.190 of the Kentucky

revised Statutes provide Kentucky and

APCDJC with broad authority to enact

orders, rules and regulations to reduce

air pollution. Other subchapters of KRS

77 give APCDJC the power to ‘‘***

take by grant, purchase, gift, devise, or

lease * * * real or personal property of

every kind within or without the district

necessary to the full exercise of its

powers.’’ (KRS 77.060) and to establish

an ‘‘air quality trust fund to be used for

conducting and funding air quality

research and development projects

* * * to assist in implementing the

policies and purposes of this chapter.’’

(KRS 77.127).

Certain control measures that may be

applied under diverse circumstances, or

implemented on a voluntary basis, may

not lend themselves to the development

and adoption of specific regulations, but

will probably require the development

of formal implementation and/or

reporting procedures. In such instances,

Kentucky and the APCDJC may take an

active role in promoting the use of such

procedures. In addition, it should be

noted that this process may be

community-based, with local residents

and industries taking the lead rather

than Kentucky.

Kentucky recognizes that the

budgeting of funds for the construction

of certain types of vehicles and roadway

improvements requires the approval of

various state and local transportation

agencies. However, since conformity

will continue to apply to the Louisville

area following redesignation, Kentucky

must continue to work with these

agencies to ensure that conformity

analyses continue to be conducted to

ensure that short- and long-term

transportation plans provide for

emission levels within the MVEBs

provided in the SIP. Kentucky also

continues to work with these agencies to

improve the consultation process by

establishing and/or refining further

consultation procedures that will

facilitate and streamline the process of

making future conformity

determinations for all areas, including

the Louisville area. Overall EPA finds

that there is adequate authority to

implement within the meaning of

175A(d).

Comment 5D—Need for measures to

prevent violation: Both commenters

contend that the Kentucky maintenance

plan contains inadequate provisions to

respond to exceedances, and/or

anticipated violations. They contend

that Kentucky’s maintenance plan is

insufficient, as it only commits to

evaluate the list of control measures in

the event of recorded exceedances or

unexpected growth (i.e. greater than 10

percent growth in ozone precursor

emissions, based on the periodic

inventories). They are concerned that

the plan offers no assurance that

Kentucky will adopt additional controls

to prevent a future violation, even

where analyses show that such a

violation is likely. The first commenter

contends that ‘‘the lack of commitment

[to ever actually adopt additional

controls to address anticipated

violations] renders the plan inadequate

under the Act and EPA policy. EPA

guidance explicitly requires the

maintenance plan to ‘contain any

additional measures as necessary to

ensure that the standard will not be

violated’.’’ (57 FR 13563). The guidance

further requires that ‘‘Any future

measures must be implemented before

any violations might be anticipated,

based on tracking of the emission

inventory.’’ Id. The state’s plan here

meets none of these requirements.’’ The

second commenter further states that

‘‘any exceedances of the 1-hour

standard should be considered as

violations triggering the implementation

of contingency measures.’’

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53681

Response 5D: In the event of a

monitored exceedance or if periodic

emission inventory updates reveal a

greater than 10 percent increase in

ozone precursor emissions, the

maintenance plan requires Kentucky to

initiate a study to determine if

additional emission controls are needed

to prevent a future 1-hour ozone

NAAQS violation. EPA views these

commitments to be adequate and

enforceable. This approach is consistent

with the September 4, 1992, Calcagni

memorandum, which states that the

maintenance plan should ‘‘identify

specific indicators, or triggers, which

will be used to determine when the

contingency measures need to be

implemented. The indicators would

allow the State to take early action to

address potential violations of the

NAAQS before they occur.’’ Kentucky’s

maintenance plan addresses this

requirement by identifying two

occurrences that trigger a study ‘‘to

evaluate existing control measures to

see if any further emission reduction

measures should be implemented at that

time.’’ This commitment allows

Kentucky to take early action. It does

require Kentucky to fully evaluate the

current air quality status and control

status of the area, and determine if, and

what level of, action should be

implemented to prevent further air

quality deterioration. If Kentucky

concludes from this evaluation that a

violation is likely, and further controls

are needed to avoid such occurrence,

the maintenance plan indicates that

action will be initiated ‘‘at that time.’’

The evaluation, in effect, allows

Kentucky to pro-actively identify and

implement controls deemed necessary

to avoid an actual violation. Should any

action taken be insufficient to prevent a

violation, Kentucky is clearly aware of

their obligation to implement controls

within 18 months of that violation.

Indiana has made similar commitments

to implement controls expeditiously to

address ozone exceedances and avoid

violations of the 1-hour ozone NAAQS.

Comment 5E—Commitment to

implement all existing SIP measures:

The first commenter contends that

Kentucky’s and Indiana’s contingency

plan does not contain the commitment

mandated by the CAA that the state will

implement all ozone-control measures

in the SIP prior to redesignation (42

U.S.C. 7505a(d)). Regardless of whether

the state is currently implementing all

required SIP measures, the foregoing

commitment is crucial to ensuring that

the contingency plan will remain

adequate in the future if the state stops

implementing pre-redesignation SIP

measures. EPA does not have the

discretion to approve the maintenance

plan without this mandatory

commitment.

Response 5E: 42 U.S.C. 7505(d)

(section 175A(d)) requires that ‘‘[s]uch

provisions shall include a requirement

that the State will implement all

measures with respect to the control of

the air pollutant concerned which were

contained in the State implementation

plan for the area before redesignation of

the area as an attainment area.’’ There

are no unimplemented measures in the

Kentucky SIP to which any

commitments under section 175A(d)

could apply. There is no need for the

Commonwealth to commit to further

implementation in light of the fact that

they are continuing to implement all

measures contained in their SIP. Since

the section 175A(d) requirement to

implement all measures is being

satisfied, there is no requirement for an

additional commitment.

Kentucky’s redesignation request

includes the following statement: ‘‘The

DAQ, APCD, and EPA have instituted

programs that will remain enforceable

and are hereby submitted as a plan to

maintain air quality which meets the 1-

hour ozone standard for the Kentucky

portion of the Louisville 1-hour ozone

attainment area. Sources are prohibited

from reducing emissions controls

following the redesignation of the area

unless such a relaxation is first

approved by the EPA as a revision to the

Kentucky SIP.’’ This is a clear statement

of the requirement that the regulatory

programs (adopted by both the

Kentucky Division of Air Quality

(DAQ), and the APCDJC; as well as,

EPA’s Federal measures relative to

control of ozone levels) which

constitute the regulatory scheme for

reduction of ozone precursors instituted

to attain the 1-hour ozone NAAQS in

the Kentucky portion of the Louisville

area, having been implemented will

remain enforceable. It is clear that

Kentucky has stated that it prohibits

sources from reducing emission controls

after redesignation unless EPA approves

any change via a SIP revision. Such a

revision would have to meet the

requirements of 110(l) which requires

that the revision could not interfere

with ‘‘* * * any applicable

requirement concerning

attainment***’’ EPA considers that

under these circumstances, the

requirements of 42 U.S.C. 7505(d) are

satisfied.

Similarly, in its maintenance plan,

Indiana stated that it intends to

maintain its current control measures

after redesignation. Indiana has

committed that any changes to its rules

or emission limits applicable to VOC

and/or NOX sources, as required for

maintenance of the ozone standard in

Clark and Floyd Counties, will be

submitted to EPA for approval as a SIP

revision. Indiana further stated that

through the Indiana Department of

Environmental Management’s Office of

Air Quality and its Office of

Enforcement it has the necessary

resources to actively enforce any

violations of its rules or permit

provisions. After redesignation, it

intends to continue enforcing all rules

that relate to the emissions of ozone

precursors in Clark and Floyd counties.

Thus Indiana also satisfies the

requirements of section 175A(d).

Comment 5F—Adequate

demonstration of maintenance: The

second commenter voices concern over

the accuracy of the Kentucky

maintenance plan’s demonstration that

the area’s attainment status will be

maintained for at least the next 10 years,

‘‘due in large part to the increases in

mobile source emissions traceable to

both increases in vehicle miles traveled

and to lower fuel efficiency among the

‘‘SUV’’ [Sport Utility Vehicles] and light

duty truck classes of vehicles that

populate Louisville’s highways’.

Response 5F: The redesignation

request submitted by Kentucky

addresses the issue of ‘‘SUVs’’ as

follows: ‘‘In 2000–2001, responding to

advice by EPA, the District undertook to

update the fleet characterization data to

support redesignation to attainment

status. The primary concern was that

market research had shown a significant

shift from passenger automobiles toward

sport utility vehicles (SUVs) over the

1990’s decade. It was prudent to reflect

the shift toward larger, higher-emitting

vehicles in the MOBILE modeling for

Jefferson County. In response, the

District produced updated tables based

on 1999 Vehicle Emission Testing

operations data, Federal Highway

Administration VMT mix data for

Indiana and Kentucky, and draft

MOBILE6 mileage accumulation rates. A

spreadsheet (RDIST99Q.WK1) was

developed to construct the necessary

tables from raw data in a transparent

manner, and to fill in certain gaps in the

data. The spreadsheet reconciled

unavailable Heavy Duty Vehicle (HDV)

count and usage data with overall VMT

mix and reasonable assumptions about

local daily VMT. Following local peer

review of this spreadsheet, the updated

tables were implemented into District

MOBILE modeling.

As expected, the net effect of the

updated fleet tables was a significant

increase in all emission factors over

prior estimates. This reflected both the

53682 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

move toward SUVs and a significantly

higher, more accurate estimate of the

local contribution of HDVs, particularly

interstate transport vehicles.’’

It is clear from the discussion above

that Kentucky and the APCDJC did

address the issue of increases in

emissions from SUVs and light trucks in

the modeling of the mobile source

emissions. They found as the

commenter had suggested that there was

a significant increase in all emission

factors over prior estimates. However,

the commenter’s ‘‘concern over the

accuracy of the maintenance plan’s

demonstration that the area’s attainment

status will be maintained for at least the

next ten years’ is unfounded. The

increased emissions were accounted for

and the States have made a commitment

to revise the mobile modeling using

MOBILE6 when appropriate.

EPA, in proposing to approve

Kentucky’s and Indiana’s requests to

redesignate the Louisville area to

attainment for the 1-hour ozone

NAAQS, required both States to revise

their maintenance plans to include an

enforceable commitment to revise the

MVEBs using MOBILE6 (once it

becomes available) and to revise the

VOC MVEB so that the area’s 2012

projected emissions do not exceed the

1999 attainment year emissions. Both

States met these requirements by

submitting enforceable commitment to

revise the MVEBs using MOBILE6 and

a revised MVEB that does not exceed

the 1999 attainment year emissions.

Comment 6: One commenter

expressed concern over the possible

implementation of more restrictions, in

reference to the list of contingency

measures at 66 FR 33516, on individuals

or personal vehicles. This commenter

also expressed the opinion that the

listed contingency measures were

oppressive, ‘‘designed to punish an

ordinary citizen.’’ In addition, the

commenter objects to the statement

‘‘Kentucky [also] reserves the right to

implement other contingency.’’ (sic)

[The complete statement is ‘‘Kentucky

also reserves the right to implement

other contingency measures if new

control programs should be developed

and deemed more advantageous for the

area.’’] The commenter’s objection is on

the basis that this is an open ended

‘‘political ploy to do something secret

that is not on the list.’’ The commenter

was concerned that ‘‘something secret’’

might include higher ‘‘gas prices.’’ The

commenter questioned how the process

of instituting contingency measures

could be allowed without public

involvement and requested that this not

be allowed.

Response 6: There are contingency

measures listed at 66 FR 33516 which

if implemented in the event of a

triggering mechanism or violation of the

1-hour ozone NAAQS may impact in

some limited manner the operation or

use of private vehicles. The

implementation of the contingency

measures must follow applicable public

notice and public hearing procedures

during which the public is invited and

encouraged to make comments or bring

forth information which would

influence the decision under

consideration. If contingency measures

are required to be implemented, they

would be for the purpose of protecting

the public health and environment of

the citizens in the Louisville area and

only implemented after following CAA

procedures.

Neither the CAA nor the regulatory

requirements adopted by the elected

officials in the Louisville area are

‘‘designed to punish an ordinary

citizen.’’ They were and are required by

law to be adopted or amended in a

public forum requiring public notice

and a public hearing process allowing

for citizen input. Just as the items on the

list of contingency measures have, or

will have to, undergo the public

adoption process, any ‘‘other

contingency’’ measures will also have to

meet the same requirements. All

regulations adopted for submittal to

meet federal requirements and SIP

revisions submitted to EPA for approval

must contain proof of public notice and

a public hearing before they are

considered complete. The process for

adoption of contingency measures in

response to federal requirements must

be done in a manner which allows for

public participation or they will not be

approved at the federal level.

III. What Actions Are We Taking?

We are determining that the

Louisville area has attained the 1-hour

ozone NAAQS. The Louisville area

includes the Kentucky Counties of

Bullitt, Jefferson, Oldham; and the

Indiana Counties of Clark, and Floyd.

On the basis of this determination, EPA

is also determining that SIP revisions to

address certain requirements of part D

of title I of the CAA need not be

submitted, since they would no longer

be considered applicable requirements

under section 107(d)(3)(E) for so long as

the area continues to attain the 1-hour

ozone NAAQS. These requirements

include RFP (see the general

requirements of section 172(c)(2) and

the more specific requirement of section

182(b)(1) for a plan that reduces VOC

emissions by 15 percent), attainment

demonstration requirements (see the

general requirement of section 172(c)(1))

and the specific requirement of section

182(j) for a multi-state attainment

demonstration) and contingency

measures (see the general requirement

of section 172(c)(9)).

We are approving Kentucky’s

redesignation request and redesignating

the Kentucky portion of the Louisville

nonattainment area to attainment for the

1-hour ozone NAAQS. We are also

approving as revisions to the Kentucky

SIP, the maintenance plan and

associated MVEBs for the Kentucky

portion of the Louisville nonattainment

area that were submitted by Kentucky

with its redesignation request. In this

final rule, we are notifying the public

that we believe the MVEBs for VOC and

NOX in the Kentucky portion of the

Louisville moderate interstate

maintenance plan are adequate for

conformity purposes and approvable as

part of the maintenance plan. We are

approving Indiana’s redesignation

request and redesignating the Indiana

portion of the Louisville nonattainment

area to attainment for the 1-hour ozone

NAAQS. We are also approving as

revisions to the Indiana SIP, the

maintenance plan and associated

MVEBs for the Indiana portion of the

Louisville nonattainment area that were

submitted by Indiana with its

redesignation request. In this final rule,

we are notifying the public that we

believe the MVEBs for VOC and NOX in

the Indiana portion of the Louisville

moderate interstate maintenance plan

are adequate for conformity purposes

and approvable as part of the

maintenance plan. We are also

approving 11 Board Orders to control

NOX emissions consistent with RACT

requirements from major NOX sources

in Jefferson County, Kentucky.

Any challenge to EPA’s actions

regarding the redesignation of one

portion of the Louisville area shall not

be deemed to affect the validity of the

redesignation of the other portion. The

Commonwealth of Kentucky and the

State of Indiana have satisfied all of the

necessary requirements of the CAA

relative to these actions.

IV. Why Are We Taking These Actions?

We are making a determination that

the area has attained the 1-hour ozone

NAAQS. EPA is basing this

determination upon three years of

complete, quality-assured, ambient air

monitoring data for the 1998–2000

ozone seasons that demonstrate that the

1-hour ozone NAAQS has been attained

in the entire Louisville area, and

preliminary data for the 2001 ozone

season that shows continuing

attainment. Regarding the need to

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53683

address the requirements of part D of

title I of the CAA, EPA interprets the

general provisions of subpart 1 of part

D of title I (sections 171 and 172) and

the more specific attainment

demonstration and related provisions of

subpart 2 (section 182) to not require the

submission of SIP revisions concerning

RFP, attainment demonstrations, or

contingency measures for areas where

the monitoring data show that the area

is attaining the 1-hour ozone NAAQS

(See Sierra Club vs EPA, 99 F.3d 1551

(10th Cir. 1996)). This rationale is

described in the May 10, 1995, Seitz

memorandum. EPA has previously

applied this interpretation in a number

of areas, including Salt Lake and Davis

Counties, Utah (60 FR 36723, July 18,

1995); Grand Rapids, Michigan (61 FR

31831, June 21, 1996); Cleveland-AkronLorrain (61 FR 20458, May 7, 1996); and

Cincinnati, Ohio (65 FR 37879, June 19,

2000). All previously-approved SIP

revisions are not affected by this action

and must continue to be implemented

and enforced. This includes Indiana’s

15 percent plan approved on May 7,

1997, (62 FR 24815).

We are redesignating the Kentucky

and Indiana portions of the Louisville

area because the area has attained three

years of ambient air quality monitoring

data demonstrating that the 1-hour

ozone NAAQS has been attained, and

both the Kentucky and Indiana portions

of the area have satisfied the other

criteria for redesignation. We are

approving Kentucky’s and Indiana’s

maintenance plans, including the

MVEBs, that were submitted with the

State’s redesignation requests as

revisions to the Kentucky and Indiana

SIPs, because these plans meet the

requirements of section 175A and

107(d). We are also notifying the public

that we believe the MVEBs for VOC and

NOX for the Kentucky and Indiana

Louisville moderate interstate

maintenance plan are adequate for

conformity purposes and approvable as

part of the maintenance plans, because

in addition to meeting the requirements

of section 175A and 107(d), adequate

opportunity for public comment on

these MVEBs was provided through the

adequacy process (posted April 13,

2001) and in the NPR (66 FR 33505,

June 22, 2001). In the NPR, EPA

explained that we could not approve the

originally-submitted VOC MVEB unless

the States revised this MVEB, by

adjusting the safety margin, so that the

MVEB would not exceed attainment

year VOC emissions. The States

corrected the VOC MVEB accordingly in

July 9, 2001 and August 24, 2001

supplements to their original

redesignation requests.

Finally, we are approving 11 Board

Orders relating to control of NOX

sources in Jefferson County, Kentucky

submitted by Kentucky on November

12, 1999, and May 23, 2001, because

they satisfy the NOX RACT

requirements of 182(f) of the CAA.

V. What Are the Effects of These

Actions?

These actions determine that the

Louisville area has attained the 1-hour

ozone NAAQS and that the

requirements of sections 172(c)(1) and

182(j) concerning submission of an

ozone attainment demonstration, the

requirements of sections 172(c)(2) and

182(b)(1) concerning submission of a 15

percent VOC emission reduction plan,

and the requirements of section

172(c)(9) concerning contingency

measures for RFP or attainment are not

applicable to the Louisville area.

However, all controls previously

approved for the area by EPA must

continue to be implemented. Kentucky

and Indiana must continue to operate an

appropriate ozone air quality

monitoring network, in accordance with

40 CFR part 58, to verify the ozone

attainment status of the area. The air

quality data relied upon to determine

that the area is attaining the ozone

standard must be consistent with 40

CFR part 58 requirements and other

relevant EPA guidance.

The redesignation changes the official

designation of the Kentucky Counties of

Bullitt, Jefferson, Oldham, and the

Indiana Counties of Clark, and Floyd

from nonattainment to attainment for

the 1-hour ozone NAAQS. It also

approves as a SIP revision and puts into

place plans for maintaining the 1-hour

ozone NAAQS for the next 10 years.

These maintenance plans include

contingency measures to correct any

future violations of the 1-hour ozone

NAAQS. These maintenance plans

establish MVEBs for the Louisville area

for the purposes of transportation

conformity. These MVEB are now 48.17

tons per summer day VOC and 92.93

tons per summer day NOX for the year

2012. Finally, this action also approves

11 Board Orders for sources of NOX in

Jefferson County, Kentucky.

VI. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

‘‘Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use’’ (66 FR 28355 (May

22, 2001)). This action merely approves

state law as meeting federal

requirements and imposes no additional

requirements beyond those imposed by

state law. This action also redesignates

an area to attainment, an action that

affects the status of a geographical area

and does not impose any new regulatory

requirements on sources. Redesignation

of an area to attainment under section

107(d)(3)(E) of the Clean Air Act does

not impose any new requirements on

small entities. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.).

Because this rule approves preexisting requirements under state law

and does not impose any additional

enforceable duty beyond that required

by state law, it does not contain any

unfunded mandate or significantly or

uniquely affect small governments, as

described in the Unfunded Mandates

Reform Act of 1995 (Public Law 104–4).

This rule also does not have tribal

implications because it will not have a

substantial direct effect on one or more

Indian tribes, on the relationship

between the Federal Government and

Indian tribes, or on the distribution of

power and responsibilities between the

Federal Government and Indian tribes,

as specified by Executive Order 13175

(65 FR 67249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

approves a state rule implementing a

federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

CAA. This action also redesignates an

area to attainment. The redesignation

merely affects the status of a

geographical area, does not impose any

new requirements on sources, or allows

a state to avoid adopting or

implementing other requirements, and

does not alter the relationship or the

distribution of power and

responsibilities established in the CAA.

Thus, the requirements of section 6 of

the Executive Order do not apply to this

rule. This rule also is not subject to

Executive Order 13045 ‘‘Protection of

Children from Environmental Health

53684 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the CAA. In this context, in the absence

of a prior existing requirement for the

State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the CAA. Additionally, redesignation is

an action that affects the status of a

geographical area but does not impose

any new requirements on sources. Thus,

the requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the FR. A major rule cannot take effect

until 60 days after it is published in the

FR. This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. section 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 December 24, 2001. Filing a

petition for reconsideration by the

Administrator of this final rule does not

affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements. (See section

307(b)(2)).

List of Subjects

40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen oxides, Ozone,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: October 3, 2001.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Dated: October 3, 2001.

David A. Ullrich,

Acting Regional Administrator, Region 5.

Chapter I, title 40 of the Code of

Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

Subpart P—Indiana

2. Section 52.777 is amended by

adding paragraph (x) to read as follows:

§ 52.777 Control strategy: photochemical

oxidants (hydrocarbons).

* * * * *

(x) The request submitted by Indiana

on April 11, 2001 and supplemented on

August 24, 2001, to redesignate the

Indiana portion of the Louisville

moderate interstate ozone

nonattainment area from nonattainment

to attainment was approved on October

23, 2001. The motor vehicle emissions

budgets for VOC and NOX in the Indiana

portion of the Louisville moderate

interstate maintenance plan are

adequate for conformity purposes and

approvable as part of the maintenance

plan. The 1-hour ozone standard

maintenance plan motor vehicle

emission budgets for the entire

interstate Louisville area for the

purposes of transportation conformity

are now 48.17 tons per summer day of

VOC and 92.93 tons per summer day of

NOX for the year 2012.

Subpart S—Kentucky

3. Section 52.920 is amended:

a. By adding new entries to the end

of the table in paragraph (d).

b. By adding a new entry in numerical

order to the table in paragraph (e). The

additions read as follows:

§ 52.920 Identification of plan.

* * * * *

(d) * * *

EPA-APPROVED KENTUCKY SOURCE-SPECIFIC REQUIREMENTS

Name of source Permit number State effective date

EPA

approval

date

Federal Register Notice

*******

Board Order American Synthetic Rubber

Company.

NOX RACT Plan 12/

20/00.

01/01/01 10/23/01 66 FR 53684

Board Order E. I. du Pont de Nemours &

Company.

NOX RACT Plan 02/

21/01.

03/01/01 10/23/01 66 FR 53684

Board Order Ford Louisville Assembly Plant NOX RACT Plan 11/

08/99.

01/01/00 10/23/01 66 FR 53684

Board Order General Electric Company ....... NOX RACT Plan 01/

17/01.

03/01/01 10/23/01 66 FR 53684

Board Order Kosmos Cement Company ...... NOX RACT Plan 11/

15/00.

01/01/01 10/23/01 66 FR 53684

Board Order Louisville Gas and Electric

Company, Cane Run Generating Station.

NOX RACT Plan 10/

18/00.

01/01/01 10/23/01 66 FR 53684

Board Order Louisville Gas and Electric

Company, Mill Creek Generating Station.

NOX RACT Plan 10/

18/00.

01/01/01 10/23/01 66 FR 53684

Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations 53685

EPA-APPROVED KENTUCKY SOURCE-SPECIFIC REQUIREMENTS—Continued

Name of source Permit number State effective date

EPA

approval

date

Federal Register Notice

Board Order Louisville Medical Center

Steam Plant.

NOX RACT Plan 2/

21/01.

04/01/01 10/23/01 66 FR 53685

Board Order Oxy Vinyls, LP .......................... NOX RACT Plan 12/

20/00.

01/01/01 10/23/01 66 FR 53685

Board Order Rohm and Haas Company ....... NOX RACT Plan 12/

20/00.

01/01/01 10/23/01 66 FR 53685

Board Order Texas Gas Transmission .......... NOX RACT Plan 11/

08/99.

01/01/00 10/23/01 66 FR 53685

(e) * * *

EPA-APPROVED KENTUCKY NONREGULATORY PROVISIONS

Appendix Title/subject

State

effective

date

EPA

approval

date

Federal Register

notice

*******

23 .................................................... Louisville Ozone Maintenance Plan ........................... 10/23/01 66 FR

53685

* * * * * * *

4. Section 52.930 is amended by

adding paragraph (k) to read as follows:

§ 52.930 Control strategy: Ozone.

* * * * *

(k) The redesignation request

submitted by the Commonwealth of

Kentucky, on March 30, 2001, and

supplemented on July 9, 2001, for the

Kentucky portion of the Louisville

moderate interstate ozone

nonattainment area from nonattainment

to attainment was approved on October

23, 2001. The motor vehicle emissions

budgets for VOC and NOX in the

Kentucky portion of the Louisville

moderate interstate maintenance plan

are adequate for conformity purposes

and approvable as part of the

maintenance plan. The 1-hour ozone

standard maintenance plan motor

vehicle emission budgets for the entire

interstate Louisville area for the

purposes of transportation conformity

are now 48.17 tons per summer day of

VOC and 92.93 tons per summer day of

NOX for the year 2012.

PART 81—[AMENDED]

1. The authority citation for part 81

continues to read as follows:

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

2. Section 81.315 is amended by

revising the entry for the ‘‘Louisville

Area’’ in the Indiana-Ozone (1-Hour

Standard) table to read as follows:

§ 81.315 Indiana.

* * * * *

INDIANA—OZONE (1-HOUR STANDARD)

Designated area

Designation Classification

Date 1 Type Date 1 Type

*******

Louisville Area:

Clark County .................................................................... 10/23/01 Attainment

Floyd County .................................................................... 10/23/01 Attainment

*******

1This date is November 15, 1990 unless otherwise noted.

* * * * *

3. Section 81.318 is amended by

revising the entry for the ‘‘Louisville

Area’’ in the Kentucky-Ozone (1-Hour

Standard) table to read as follows:

§ 81.318 Kentucky.

* * * * *

53686 Federal Register / Vol. 66, No. 205 / Tuesday, October 23, 2001 / Rules and Regulations

KENTUCKY—OZONE (1-HOUR STANDARD)

Designated area

Designation Classification

Date 1 Type Date 1 Type

*******

Louisville Area:

Bullitt County ............................................................. 10/23/01 Attainment

Jefferson County ....................................................... 10/23/01 Attainment

Oldham County ......................................................... 10/23/01 Attainment

*******

1This date is November 15, 1990 unless otherwise noted.

* * * * *

[FR Doc. 01–25894 Filed 10–22–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[KY–75–1; KY–97–1–200109, FRL–7082–8]

Approval and Promulgation of

Implementation Plans Kentucky:

Approval of Revisions to Kentucky

State Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: On September 13, 1999, EPA

published a direct final rule approving

and an accompanying notice of

proposed rulemaking proposing to

approve the 15 percent Rate-of-Progress

Plan (15 percent plan) for the Louisville

moderate 1-hour ozone nonattainment

area which was submitted on November

12, 1993, and amended on April 5,

1994, and June 30, 1997. As stated in

the Federal Register document, if

adverse or critical comments were

received by October 13, 1999, the

effective date would be delayed and

timely notice would be published in the

Federal Register. Due to receipt of

adverse comments within the comment

period, EPA withdrew the direct final

rule on November 3, 1999, in order to

address all public comments received.

This action addresses the adverse

comments related to the approvability of

the emission reduction measures and

grants final approval to the rule

revisions and the 1990 Base Line

Emissions Inventory. No comments

were received relating to the 1990 Base

Line Emissions inventory.

EFFECTIVE DATE: This rule will be

effective November 23, 2001.

ADDRESSES: Copies of the State

submittal(s) are available at the

following addresses for inspection

during normal business hours:

Environmental Protection Agency,

Region 4, Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia

30303–8960.

Department for Environmental

Protection, Natural Resources and

Environmental Protection Cabinet,

Division of Air Quality, 803 Schenkel

Lane, Frankfort, Kentucky 40601.

Air Pollution Control District of

Jefferson County, 850 Barrett Avenue,

Suite 205, Louisville, Kentucky

40204.

FOR FURTHER INFORMATION CONTACT:

Scott Martin of the EPA Region 4 staff

at (404) 562–9036.

martin.scott@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On September 13, 1999, EPA

published a direct final rule (64 FR

49404) approving and an accompanying

notice of proposed rulemaking (64 FR

49425) proposing to approve the 15

percent plan for the Louisville moderate

1-hour ozone nonattainment area which

was submitted on November 12, 1993,

and amended on April 5, 1994, and June

30, 1997. This submittal was required

by Section 182(b)(1)(A) of the Clean Air

Act, as amended in 1990 (CAA) in order

to demonstrate reasonable further

progress (RFP) in attaining the National

Ambient Air Quality Standard (NAAQS)

for ozone. As stated in the Federal

Register document, if adverse or critical

comments were received by October 13,

1999, the effective date would be

delayed and timely notice would be

published in the Federal Register. Due

to receipt of adverse comments within

the comment period, EPA withdrew the

direct final rule on November 3, 1999,

(64 FR 59644) in order to address all

public comments received in a

subsequent final rule.

In a separate action, EPA is finalizing

it’s proposal (66 FR 27483) to determine

that the Louisville moderate ozone

nonattainment area has attained the

public health-based 1-hour ozone

NAAQS. The Louisville area includes

the Kentucky Counties of Jefferson,

Bullitt and Oldham and the Indiana

Counties of Clark and Floyd. This

determination is based on three years of

complete, quality-assured, ambient air

monitoring data for the 1998 to 2000

ozone seasons that demonstrate that the

area has attained the ozone NAAQS. On

the basis of this determination, EPA is

also determining that State

implementation plan (SIP) submissions

for certain RFP and attainment

demonstration requirements, along with

certain other related requirements, of

part D of title 1 of the CAA are no longer

required for the Louisville area. All

previously approved SIP revisions must

continue to be implemented and

enforced and are not affected by this

action.

EPA’s final action on the

determination of attainment eliminates

the need for approval of the 15 percent

plan and therefore no further action will

be taken on the demonstration that this

reduction was achieved. However, the

control measures contained in the 15

percent plan have been implemented

prior to attainment of the 1-hour ozone

NAAQS. This action addresses

comments related to the approvability of

the control measures and grants final

approval to the rule revisions and the

1990 Base Line Emissions Inventory,

although no action is taken on the 15

percent demonstration itself since it is

no longer required.

II. Analysis of State’s Submittal

The comment and response is

summarized below:

Comment 1

Regulation 1.18: Rule Effectiveness

Jefferson County is claiming 6.37 tons

per day in volatile organic compound

(VOC) reductions from its ‘‘Rule

Effectiveness’’ program. This program

requires sources to develop and