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Citation: 66 Fed. Reg. 53665 2001

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-- The search text of this PDF is generated from uncorrected OCR text.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, andwood 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 ofAreas for AirQuality Planning Purposes; Kentuckyand Indiana; Approval of Revisions to State Implementation Plan; Kentucky

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: EPA is determining thatthe 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 ofBullitt and Oldham Counties, Kentucky; and Clark and Floyd Counties, Indiana. This determination isbased on three years of complete, quality-assured, ambient air monitoring data for the 1998 to 2000

ozone seasons. On thebasis of this determination, EPAis also determining that the State Implementation Plan (SIP) submissions for certain reasonable further progress (RFP) and attainment demonstration requirements, alongwith certain otherrelated requirements of part D oftitle Iofthe Clean Air Act (CAA), are not applicable tothe area. EPA is also approving Kentucky's and Indiana's requests submitted March 30, 2001, andApril 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, asrevisions to the Kentucky andIndiana (States) SIPs. EPA is also approving and finding adequate Kentucky's and Indiana's motor vehicle emission budgets (MVEBs)for volatile organic compounds (VOC) andnitrogen oxides(NOx) in the submitted maintenance plans for transportation conformity purposes. Approval ofthe MVEBs is based in part on commitments submittedby the States to use the MOBILE6 mobile emission model within a specific timeframe when it becomes available to update the MVEBs. Finally, EPAis approving sourcespecific Board Orders to control NOx emissions from 11 sources in Jefferson County, Kentucky. This action finalizes EPA's proposed rulemakings to determine thatthe Louisville area has attained the 1-hour ozone NAAQS; and
to redesignate both the Kentucky and Indiana portions ofthe Louisville area to attainment for the 1-hour ozone NAAQS, and to approve the 11 sourcespecific NOxReasonably Available Control Technology (RACT)Board Orders as revisions tothe Kentucky SIP. EFFECTIVE DATE: This action willbe effective on November 23, 2001. ADDRESSES: Copies ofKentucky'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 ofKentucky, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601-1403. Air Pollution Control District ofJefferson County, 850 BarretAvenue, Louisville, Kentucky 40204. Persons wishing to examine these documents should make

an appointment atleast 24 hours before the visiting day and reference files KY117, KY-126, KY-129, and KY-132.

Copies ofIndiana's submittals, as well

as otherinformation, are available for inspection duringnormal business hours atthe following locations. U.S. Environmental Protection Agency, Region 5,Air andRadiation Division, AirPrograms Branch (AR-18J), Regulation Development Section, 77 WestJackson 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 andreference file IN-121- 3. FOR FURTHER INFORMATION CONTACT: AllisonHumphris, Environmental Scientist, orRaymond 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 andRadiation Division, (AR-18J), AirPrograms Branch, Regulation Development Section, 77 WestJackson Boulevard, Chicago, Illinois 60604, (312) 353-5954, (Portan ova.Mary@epa.gov)

Table ofContents 

### I.Whatis thebackground forthese actions? II.What comments did wereceive and what

are ourresponses? III. What actions are we taking? IV.Why are we taking these actions? V.What arethe effects ofthese actions? VI.Administrative requirements

Whenever "we," "us," or "our" are usedit means EPA.

I.What Is the Background forThese 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 ofBullitt 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 ofJefferson County (APCDJC) to reduce VOC and NOx emissions since thattime, monitors in the Louisville area have recorded three
years ofcomplete, quality-assured, ambient air quality monitoring data for the 1998, 1999, and 2000 ozone monitoring seasons, demonstrating attainment ofthe 1-hourozone NAAQS. Preliminary data for the 2001 ozone

season shows continuing attainment. The initial redesignation requests from Kentucky andIndiana were submitted

onMarch 30, 2001, and April 11, 2001, respectively, and supplemented onJuly 9, 2001, and August 24, 2001, respectively.

In anotice ofproposed 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 thebasis of this determination, we also proposed to determine thatthe SIP submissions for certain RFP and attainment demonstration requirements, alongwith certain otherrelated requirements of part D oftitle Iofthe CAA, are not applicable tothe area for so longas 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 apublic commentperiod on these actions ending on June 18, 2001. No
comments were received on that NPR duringthe comment period.

In an NPR publishedJune 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 andto approve source-specific Board Orders adopted bythe Air Pollution Control Board ofJefferson 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 apublic commentperiod ending on July 23, 2001. We received comments from three commenters.
II. What Comments DidWe Receive and WhatAre OurResponses?

The summarized comments received andEPA responses to them are provided below. Comment I-Attainment ofthe standard: The commenter believes that the area has failed to show attainment ofthe 1-hour ozone NAAQS. The
commenter points out thatEPA's Aerometric Information Retrieval System (AIRS) data base shows thatthe Charlestown monitor recorded 3.2 estimated exceedances ofthe 1-hour

ozone NAAQS in the three-year period of1998-2000 and concludes thatthis translates to an annual average expected exceedance rate ofmore than 1.05 exceedances per year, and therefore nonattainment.

The commenter also asserts thatin determining thatthree days ofdata were unlikely to be above the standard, EPA has ignored the potential for exceedances onthe eight other days for which data was missing. The
commenter claims that additional information should be considered and claims thatit was ignored. This includes "the potential for exceedances on days where no exceedance was recorded, but where datawas not available for all daytime hours (evenifenough data was available tomeet the minimum coverage of75percent ofhours)". The
commenter also claims thatEPA ignored the historic pattern ofexceedances in this area, in which years withno exceedances have been followed by
years with multiple exceedances. The
commenter believes that EPAignored the concentration levels ofozone exceedances recorded atCharlestown in 1997-99, pointing out thatthe design value for this three-year period was higher than for the period 1996-98 and that the peak reading in 1998 at Charlestown of0.156 parts per million (ppm)was one ofthe highestrecorded in the region in recent years. Forthese
reasons, the commenter believes that EPA's proposal is arbitrary and capricious, andfails to adequately consider all ofthe relevant factors.

Note: Although EPAreceived no comments

on the proposeddetermination ofattainment (66 FR 27483, May 17, 2001), the above comment addresses issues covered in that NPR. Therefore, the followingresponse clarifies EPA'sbackground and rationale for approving both theproposed determination ofattainment andthe proposed redesignation.

Response 1:The current version ofthe AIRS database, EPA's air quality data system, calculates that the Charlestown monitor had 3.2 estimated exceedances duringthe 1998 ozone season, based on the availability ofvalid AIRS data for 172 out of 183 ozone season days. However, the program only reflects this value because oflimitations in the software that are not entirely reflective oftheprovisions in the CAA. For 11 days during the 1998 ozone monitoring
season, incomplete air quality data was available for the Charlestown, Indiana monitor. Three ofthese days have been documented in AIRSto note that EPA has made a determination, based on documentation presented by the State, and in accordance with 40 CFR part 50, Appendix H, thatitis highly unlikely thatthe 1-hour ozone NAAQS was exceeded (forfurther 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 alsobe 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 (August1, 1998), EPA determined thatthe 1-hour NAAQS was not exceeded based onrecords ofvalid daily maxima below the 75 percent level ofthe 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 earlyin the 1998 ozone munitoring season (April 3-4, 1998), EPAmade a similar determination based on: the State's explanation ofthe site's failure to collect ozone data during the period, records ofvalid daily maxima well below the standard for the remaining six Louisville area monitors

on those dates, and overwhelming evidence thatmeteorological 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 everbeen recorded at this monitoring site in early April. This determination was made in response to documentation presented by Indiana in

a December 11, 2000request. 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 EPAinterprets as allowing for use ofAgency discretion in defining conditions for determining when a missing value maybe assumed
to be below the level ofthe standard.

The estimated exceedances for the Charlestown monitor are calculated using the parameters provided in Table 1and the following equation: e =v + [(v/n)*(N-n-z)]. Assuming thatthe 1- hour ozone NAAQS was not exceeded for 172 of 183 ozone season days, and thatvalid 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 andAppendix H. Since no through 2000 three-year period, using period. exceedance was recorded for 1999 or conventional rounding techniques. 2000, the average number ofexpected Thus, the data indicate thatthe

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 datawas available. Examination ofthe equation and the values used to calculate the estimated exceedances for 1998 through 2000 shows thatthis 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 ofdays for which

no datawas recorded and for which we assumed the daily maximum value to be below the 1-hour NAAQS (i.e.z=3). Thus, EPA tookthe 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 ofthe remaining monitoring data used to calculate 1998- 2000 estimated exceedances for the Charlestown monitor, EPAnotes that there was over 99 percent data completeness on days meeting the 75 percent completeness test atthe Charlestown site over the three-year period. Neither the guidance nor 40 CFR contemplates questioning data thatmeet the 75 percent completeness test. There

was also over 97 percent completeness for alldays over the three-year period. EPA completed a review ofthe 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 ofthis 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 thehistorical data presented
to us bythe States in the context ofthe provisions of40 CFR 50.9. When evaluating whether the 1-hour ozone NAAQS has been met,the CAA specifies thatEPA must consider the
most recent three years ofqualityassured monitoring data. As indicated above, the data for the most recent three-year period, i.e., 1998-2000, indicates attainment. Preliminary 2001

ozone season dataindicates that the area continues to attain the 1-hour NAAQS. Note that the CAA and EPAguidance alsorequires 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. Comment2-Fully approved SIP and allrequirements applicable to the area under section 110 and subpart D: The
commenter indicated that, pursuant to section 107(d)(3)(E)(ii) ofthe 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. ofthis comment below, as required bythe CAAfor moderate ozone nonattainment areas. Also, pursuant to section 107(d)(3)(E)(v) ofthe 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 andpart D." The
commenter contends thatthe States havenot 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. ofthis comment have not been satisfiedfor the reasons indicated below.

Response2:As described in the
responses to subparts A. throughI. of this commentbelow, EPA believes that both the Kentucky and Indiana portions ofthe 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 toAttainment," (September 4, 1992 Calcagni memorandum) allows for approval ofSIP elements and redesignation to occur simultaneously, and EPAhas frequently taken this approach inits redesignation actions. EPAis approving today orhas previously approved allremaining portions ofthe SIP that mustbe approved prior toredesignation. Therefore, the Kentucky and Indiana SIPs are fully approved.

Comment2A-Attainment Demonstration: Acommenter stated that underthe CAA (42 U.S.C. 7502(c)(1), (c)(6), 7511a(b)(1); 7511a(j)) a moderate

area isrequired to submit an attainment demonstration based on modeling or other analytical method determined by EPAtobe atleast as effective. The 

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commenter contends that since EPAhas
not approved an attainment demonstration for theLouisville area as required bythe CAA, norhave the States involved submitted an approvable attainment demonstration, the requirements ofsection 110 and part D have not been met, and thatEPA has
not fully approved the SIP as required.

Response2A: An attainment demonstration isnot required under EPA's attainment determination policy,

as set forth in the May 10, 1995, memorandum fromJohn S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, andRelated 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 ofthat interpretation ofthe 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 (66FR 27483, May 17, 2001). Subpart 2ofpart D of titleI ofthe CAA contains various air quality planning and SIP submission requirements for ozone nonattainment

areas. EPAbelieves itis reasonable to interpret provisions regarding RFP and attainment demonstrations, alongwith certain otherrelated provisions, as not requiring SIP submissions ifan ozone nonattainment area subject to those requirements is monitoring attainment ofthe 1-hour ozone NAAQS (i.e., attainment ofthe NAAQS demonstrated with three consecutive years of complete, quality-assured, air quality monitoring data). EPA has interpreted the general provisions of subpart 1of part D oftitle 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 itis appropriate tointerpret the more specific attainment demonstration and related provisions of subpart 2in the same manner. (See SierraClubvs EPA, 99 F.3d 1551 (10thCir. 1996))

The attainment demonstration requirements ofsection 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 bythe attainment date applicable under the CAA." Ifan area has in fact monitored attainment oftherelevant NAAQS, EPA believes there isno need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation ofcertain section 172(c) requirements provided by EPAin the General Preamble for the Interpretation oftitle I ofthe CAA Amendments of1990 (57 FR 13496, April 16, 1992, supplemented at 57 FR 18070, April 28, 1992) (General Preamble). AsEPA 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 ofthe NAAQS, the focus of state planning efforts shifts to the maintenance ofthe NAAQS.

EPA has reviewed the 1998-2000 ambient air ozone monitoring datafor the Louisville area for consistency with the requirements of40 CFR part 58. A discussion ofthis review is included in EPA's proposed determination of attainment forthe Louisville area (66 FR 27483, May 17, 2001) andin 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 duringthe 1998- 2000 period, and is therefore not required to submit an attainment demonstration. Since an attainment demonstration isnot required, EPA is
not required to approve an attainment demonstration as a requisite to redesignating the Louisville area. Comment2B-All reasonably available control measures (RACM): The
commenter contends thatEPAhas not approved a demonstration showing that the Kentucky and Indiana SIPs provide for implementation ofallRACM as expeditiously aspracticable. 42 U.S.C. 7502(c)(1). The commenter also alleges that the Stateshave not met this requirement forthe Louisville area. The
commenter contends thatEPAhas no authority towaive this requirement, which applies in addition to the requirement to demonstrate timely attainment.

Response2B:The General Preamble
treats the RACM requirement as a "component" ofan 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 aspracticable. EPAinterprets this requirement to impose a duty on allnonattainment

areas to consider all available control

measures andto adopt and implement suchmeasures as are reasonably available for implementation in the area's attainment demonstration." Thus, EPA'sfinal suspension ofthe 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 ofthe attainment demonstration.

The General Preamble further states that "where measures thatmight in fact be available for implementation in the nonattainment area could not be implemented on a schedule that would advance the date for attainment inthe
area, EPA would not consider it reasonable to require implementation of suchmeasures." Because attainment has been reached for the Louisville area, no additional measures are needed to provide for attainment, nor could the attainment date forthe area nowbe advanced through implementation of RACM. Therefore, no additional RACM controls beyond what are already required in the SIP are necessary for redesignation to attainment.

Comment2C-RACT: The commenter contends that EPA has not fully approved the Kentucky SIP as meeting the requirement for RACT for allVOC

sources within the nonattainment area, including each category ofVOC sources covered by Control Technique Guideline (CTG)documents. The
commenter further contends that without EPAreopening the public
comment period on the redesignation proposal, the public will be deprived of the opportunity to offer fully informed
comment asto whether the state plan as

a whole meets all ofthe applicable requirements ofsection 110 andpart D.

Response2C:As described in the proposed redesignation (66 FR 33511, June 22, 2001), Indiana fulfilled all RACT requirements prior to submittal of itsredesignation request. Likewise, Kentucky fulfilled mostRACT requirements prior to submittal ofits 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 VOCRACT regulations; new regulations to address VOCRACT, a source-specific non-CTG VOCRACT determination, andnegative declarations. These final actions

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addressed allremaining VOC RACT requirements for Kentucky. EPAhad previously published NPRs that included proposals for each ofthese final actions thatprovided the public with adequate opportunity to offer
comments on these revisions to the Kentucky SIP. Comments were received

on one ofthe three NPRs. However,

none ofthese comments addressed the VOC RACT requirements being proposed for approval. Since no comments were received that raised questions regarding the adequacy ofthe 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 theLouisville area 1- hour ozone SIP isfully 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 ofSIP elements and redesignation to occur simultaneously, andEPA has frequently taken this approach in its redesignation actions. Thus, allRACT requirements have been fully adopted by Kentucky and Indiana and approvedby EPA.

Comment2D-Rate ofprogress plans: The commenter contends thatthe CAA required the States to obtain EPA approval ofa 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 thatEPA has
not approved theplan. The commenter asserts that, on this basis, the SIP does
not meet all requirements under section 110 and part D.

Response2D:The General Preamble provides EPA's interpretation ofcertain 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 thatthe area has already attained. Showing that the state will make RFP towards attainment will have no meaning atthat 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 1ofpart D oftitle I (sections 171 and 172) andthe more specific requirements of subpart 2ofpart D of title I so as not to require the submission ofSIP 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 ofthe 1-hour ozone NAAQS. With regards to the specific requirement for RFP, whether dealing with the general RFP requirement ofsection 172(c)(2) orthe more specific RFP requirements ofsubpart 2for classified

ozone nonattainment areas, including the 15 percent plan requirement of 182(b)(1), "the stated purpose ofRFP is
to ensure attainment bythe applicable attainment date. Ifan area has in fact attained the relevant NAAQS, the stated
purpose ofthe RFP requirement will have been met, and EPAdoes 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 bythe 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), andIndiana continues to implement and enforce all regulations associated with that submittal. EPA also proposed approval, in the form ofa direct final rulemaking, ofKentucky's 15 percent plan andthe 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, EPAis taking final action on our determination ofattainment for theLouisville 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 itselfisrequired, the regulations submitted byKentucky with its 15 percent plan provided permanent and enforceable reductions during the 1998 through 2000 time period, since they were implemented prior to 1998, andEPA approves regulations submittedby Kentucky as part ofits 15 percent plan. That final action ensures that regulations implemented by Kentucky prior to attainment ofthe 1- hour ozone NAAQS are permanent and enforceable aspart ofthe SIP, thereby fulfilling the requirements of section 107(d)(3)(iii), and therequirements for redesignation. Comment2E-New Source Review (NSR): The commenter points out that the CAArequires 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 thatthe States havenot met this requirement, and that EPAhas no express authority to waive this mandate.

Response2E:Notwithstanding the
current status ofthe Kentucky and Indiana SIPs,EPA has determined that

areas being redesignated to attainment do notneed to comply withthe requirement that a part D NSR program be approved prior toredesignation, providedthat the area demonstrates maintenance ofthe applicable NAAQS without part DNSR 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 thatthe Louisville area will be able to maintain the 1-hour NAAQS without part DNSR in effect, and, therefore, need not have fully-approved part D NSRprograms prior to approval ofthe redesignation request forthe Louisville

area. Kentucky's and Indiana's PSD requirements will be applicable and remain enforceable after the redesignation ofthe Louisville area (66 FR 33509-33510, June 22, 2001). See also the discussion in the final redesignation rulemaking for the Cincinnati-Hamilton area (65FR 37890- 37891, June 19, 2000).

In any event, the Kentucky and the Indiana SIPs were reviewed to ensure thatthey satisfied allCAA requirements
to include a fully-approved part D NSR program. Section 172(c)(5) mandates that SIPs require permits for the construction and operation ofnew and modified major stationary sources anywhere in the nonattainment area. Section 182(b)(5) requires all majornew

sources or modifications in a moderate nonattainment area to achieve offsetting reductions ofVOCs at aratio ofatleast 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 thatwere proposed for approval onJune 21, 2001, (66 FR 33216). Indiana's part D NSR program

was approved in October 1994.

Comment2F-Conformity: The
commenter contends thatthe SIP does
notinclude conformity procedures as required by the CAA, and thatEPA has

no authority to waive thisrequirement. Since the CAA allows redesignation to attainment only where EPA has fully approved the implementation plan and onlywhere the state has met all requirements applicable to the area 

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