```

[Federal Register: April 21, 2010 (Volume 75, Number 76)]
[Rules and Regulations]               
[Page 20780-20782]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ap10-10]                         

=======================================================================
-----------------------------------------------------------------------

 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0502-201011; FRL-9139-1]

 
Approval and Promulgation of Implementation Plans; Revisions to 
the Kentucky State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve the transportation 
conformity revisions to the Kentucky State Implementation Plan (SIP) 
submitted by the Commonwealth of Kentucky, through the Kentucky Energy 
and Environment Cabinet's Division of Air Quality (KY DAQ). This 
addition consists of transportation conformity criteria and procedures 
related to interagency consultation and enforceability of certain 
transportation-related control measures and mitigation measures. The 
intended effect is to establish the transportation conformity criteria 
and procedures in the Kentucky SIP. This action is being taken pursuant 
to section 110 of the Clean Air Act (CAA).

DATES: Effective Date: This rule will be effective May 21, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0502. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either

[[Page 20781]]

electronically through http://www.regulations.gov or in hard copy at 
the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Amanetta Somerville, Air Quality 
Modeling and Transportation Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. Ms. Somerville's telephone number is 404-562-9025. She can 
also be reached via electronic mail at Somerville.amanetta@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Final Action
IV. Statutory and Executive Order Reviews

I. Today's Action

    EPA is taking final action to approve the transportation conformity 
section of the SIP revision, submitted by the Commonwealth of Kentucky, 
through KDAQ, on December 31, 2008 for the purpose of establishing 
transportation conformity criteria and procedures in the Kentucky SIP. 
This approval action is based on EPA's analysis that Kentucky's request 
complies with section 176(c) of the CAA.
    In a December 4, 2009, rulemaking notice, EPA proposed approval of 
the aforementioned revision to the Kentucky SIP. The comment period 
closed on January 4, 2010, and no comments were received. A detailed 
discussion of Kentucky's submittal and EPA's rationale for approval of 
the December 31, 2008, Kentucky SIP revision may be found in the 
proposed rulemaking notice (74 FR 63697). EPA is finalizing the 
approval as proposed based on the rationale stated in the proposal and 
in this final action.

II. Background for This Action

A. Transportation Conformity

    Transportation conformity (hereafter referred to as ``conformity'') 
is required under section 176(c) of the Clean Air Act (CAA or Act) to 
ensure that federally supported highway, transit projects, and other 
activities are consistent with (``conform to'') the purpose of the SIP. 
Conformity currently applies to areas that are designated 
nonattainment, and to areas that have been redesignated to attainment 
after 1990 (maintenance areas) with plans developed under section 175A 
of the Act, for the following transportation related criteria 
pollutants: ozone, particulate matter (PM2.5 and 
PM10), carbon monoxide, and nitrogen dioxide.
    Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the relevant criteria 
pollutants, also known as national ambient air quality standards 
(NAAQS). The transportation conformity regulation is found in 40 CFR 
Part 93 and provisions related to conformity SIPs are found in 40 CFR 
51.390.

B. Federal Requirements

    EPA promulgated the Federal transportation conformity criteria and 
procedures (``Conformity Rule'') on November 24, 1993 (58 FR 62188). 
Among other things, the rule required states to address all provisions 
of the conformity rule in their SIPs frequently referred to as 
``conformity SIPs.'' Under 40 CFR 51.390, most sections of the 
conformity rule were required to be copied verbatim. States were also 
required to tailor all or portions of the following three sections of 
the conformity rule to meet their state's individual circumstances: 40 
CFR 93.105, which addresses consultation procedures; 40 CFR 
93.122(a)(4)(ii), which addresses written commitments to control 
measures that are not included in a metropolitan planning 
organization's (MPO's) transportation plan and transportation 
improvement program that must be obtained prior to a conformity 
determination, and the requirement that such commitments, when they 
exist, must be fulfilled; and 40 CFR 93.125(c), which addresses written 
commitments to mitigation measures that must be obtained prior to a 
project-level conformity determination, and the requirement that 
project sponsors must comply with such commitments, when they exist.
    On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised section 176(c) of the CAA transportation 
conformity provisions. One of the changes streamlines the requirements 
for conformity SIPs. Under SAFETEA-LU, states are required to address 
and tailor only three sections of the rule in their conformity SIPs: 40 
CFR 93.105, 40 CFR 93.122(a)(4)(ii), and 40 CFR 93.125(c), described 
above. In general, states are no longer required to submit conformity 
SIP revisions that address the other sections of the conformity rule. 
These changes took effect on August 10, 2005, when SAFETEA-LU was 
signed into law.

C. SIP Submission

    On December 31, 2008, the Commonwealth of Kentucky, through the KY 
DAQ, submitted the Commonwealth's transportation conformity and 
consultation interagency rule to EPA as an addition to the SIP. The 
interagency consultation procedures for the transportation conformity 
partners are outlined in the document, Transportation Conformity: A 
Guide for Interagency Consultation, which is referenced in the Kentucky 
transportation conformity rule.
    The Commonwealth of Kentucky developed its consultation rule based 
on the elements contained in 40 CFR 93.105, 93.122(a)(4)(ii), and 
93.125(c). As a first step, the Commonwealth worked with the existing 
transportation planning organization's interagency committee that 
included representatives from Kentucky's air quality agency, Kentucky 
Department of Transportation (DOT), U.S. DOT (i.e., Federal Highway 
Administration--Kentucky Division, Federal Transit Administration), the 
MPOs of the maintenance and nonattainment areas of Kentucky, and EPA. 
The interagency committee met regularly and drafted the consultation 
rules considering elements in 40 CFR 93.105, 93.122(a)(4)(ii), and 
93.125(c), and integrated the local procedures and processes into the 
rule. The proposed rule provides additional information regarding 
Kentucky's analysis and applicable nonattainment and maintenance areas.

III. Final Action

    EPA is taking final action to approve the December 31, 2008, SIP 
revision request from Kentucky for the purpose of establishing 
transportation conformity criteria and procedures in the Kentucky SIP. 
This SIP revision is consistent with section 176(c) of the CAA.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).

[[Page 20782]]

Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) 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 June 21, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 1, 2010.
Beverly H. Banister,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart S--Kentucky

0
2. Section 52.920(c) is amended by adding an entry for ''401 KAR 
50:066'' to Table 1 to read as follows:

Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA-Approved Kentucky Regulations
----------------------------------------------------------------------------------------------------------------
                                                      State effective
         State citation             Title/subject          date        EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
                     Chapter 50 Division for Air Quality; General Administrative Procedures
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
401 KAR 50:066.................  Conformity of             11/12/2008  04/21/2010.......  ......................
                                  transportation                       [Insert citation
                                  plans, programs,                      of publication].
                                  and projects.
                                  (Amendment).
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-8933 Filed 4-20-10; 8:45 am]
BILLING CODE 6560-50-P
```