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

EPA-APPROVED KENTUCKY NONREGULATORY PROVISIONS

Appendix Title/subject State effec- EPA ap- Federal Register Notice tive date proval date

21 ............ Negative Declarations for the nonattainment portions of Bullitt and 12/14/99 10/23/01 66 FR 53665

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

and wood furniture manufacturing.

22 ............ Negative Declarations submitted by the Air Pollution Control Dis- 02/26/01 10/23/01 66 FR 53665

trict of Jefferson County for the Louisville 1-hour moderate

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

[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 KY117, 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,

(Portan ova.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

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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 I-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

munitoring 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

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ozone season. This value was exceedances for this monitor is 1.0 Louisville area has attained the 1-hour

determined in accordance with 40 CFR exceedance per year for the 1998 ozone NAAQS for this three-year

50.9 and Appendix H. Since no through 2000 three-year period, using period.

exceedance was recorded for 1999 or conventional rounding techniques.

2000, the average number of expected Thus, the data indicate that the

TABLE 1 .- PARAMETERS FOR CALCULATION OF ESTIMATED EXCEEDANCES

Value for

Variable description Charlestown Comments monitor for

1998

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

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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

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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

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