Federal Register / Vol. 60, No. 85 / Wednesday, May 3, 1995 / Rules and Regulations 21713

should do so at this time. If no such

comments are received, the public is

advised that this action will be effective

on July 3, 1995.

Final Action

EPA is approving sections 1 to 9,

inclusive, 13 to 35, inclusive, 37 to 42,

inclusive, parts of 43, and appendices A

to H of Delaware Regulation 24 as a

revision to the Delaware SIP. The State

of Delaware submitted these

amendments to EPA as a SIP revision on

January 11, 1993 and January 20, 1994.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

implementation plan. Each request for

revision to the State implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

SIP approvals under section 110 and

subchapter I, part D of the CAA do not

create any new requirements but simply

approve requirements that the State is

already imposing. Therefore, because

the Federal SIP approval does not

impose any new requirements, the

Administrator certifies that it does not

have a significant impact on any small

entities affected. Moreover, due to the

nature of the Federal-State relationship

under the CAA, preparation of a

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State action. The CAA

forbids EPA to base its actions

concerning SIP’s on such grounds.

Union Electric Co. v. U.S. EPA, 427 U.S.

246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

This action has been classified as a

Table 2 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by an October 4,

1993 memorandum from Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation. The OMB has

exempted this regulatory action from

E.O. 12866 review.

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action approving twenty-nine VOC

RACT regulations for Delaware must be

filed in the United States Court of

Appeals for the appropriate circuit by

July 3, 1995. 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 in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements.

Dated: January 27, 1995.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

40 CFR part 52, subpart I of chapter

I, title 40 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart I—Delaware

2. Section 52.420 is amended by

adding paragraphs (c)(46) and (c)(51) to

read as follows:

§ 52.420 Identification of plan.

* * * * *

(c) * * *

(46) Revisions to the Delaware State

Implementation Plan submitted on

January 11, 1993 by the Delaware

Department of Natural Resources &

Environmental Control:

(i) Incorporation by reference. (A)

Letter of January 11, 1993 from the

Delaware Department of Natural

Resources & Environmental Control

transmitting Regulation 24—‘‘Control of

Volatile Organic Compound Emissions’’,

effective January 11, 1993.

(B) Regulation 24—‘‘Control of

Volatile Organic Compound Emissions’’,

Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,

26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37,

38, 39, 40, 41, 42, and Appendices A,

B, C, D, E, F, G, & H.

* * * * *

(51) Revisions to the Delaware State

Implementation Plan submitted on

January 20, 1994 by the Delaware

Department of Natural Resources &

Environmental Control:

(i) Incorporation by reference. (A)

Letter dated January 20, 1994, from the

Delaware DNREC transmitting an

amendment to Regulation 24, ‘‘Control

of Volatile Organic Compound

Emissions’’, Section 43—‘‘Other

Facilities that Emit VOCs’’, effective

November 24, 1993.

(B) Amendment to Regulation 24,

‘‘Control of VOC Emissions’’, Section

43—‘‘Other Facilities that Emit VOCs’’,

Sections 43(a)(1), 43(a)(2), 43(a)(3),

43(a)(4), 43(b)(1), 43(b)(2), 43(c), 43(d),

43(e), and 43(f).

(ii) Additional Material. (A)

Remainder of January 11, 1993 and

January 20, 1994 State submittal

pertaining to Regulation 24 referenced

in paragraphs (c)(46)(i) and (c)(51)(i) of

this section.

(iii) Additional Information. (A) These

rules supersede paragraph (c)(44)(i)(C)

of this section.

[FR Doc. 95–10817 Filed 5–2–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[KY–80–1–6943; FRL–5200–8]

Control Strategy: Ozone (O3);

Kentucky

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is approving an

exemption request from the oxides of

nitrogen (NOX) reasonably available

control technology (RACT) requirement

of the Clean Air Act as amended in 1990

(CAA) for the Kentucky portion of the

Huntington-Ashland, moderate ozone

(O3) nonattainment area. The exemption

request, submitted by the

Commonwealth of Kentucky through

the Department of Environmental

Protection, is based upon the most

recent three years of ambient air

monitoring data, which demonstrate

that additional reductions of NOX

would not contribute to the attainment

of the National Ambient Air Quality

Standard (NAAQS) for O3 in the area.

The CAA requires states with

designated nonattainment areas of the

NAAQS for O3, and classified as

moderate nonattainment or above, to

adopt RACT rules for major stationary

sources of NOX. The CAA provides

further that the NOX requirements do

not apply to these areas outside an O3

transport region if EPA determines that

additional reductions of NOX would not
21714 Federal Register / Vol. 60, No. 85 / Wednesday, May 3, 1995 / Rules and Regulations

contribute to attainment of the NAAQS

for O3 in the area.

EFFECTIVE DATE: This action will be

effective June 2, 1995.

ADDRESSES: A copy of the exemption

request is available for inspection at the

following location (it is recommended

that you contact Kimberly Bingham at

(404) 347–3555 extension 4195 before

visiting the Region 4 office):

United States Environmental

Protection Agency, Air, Pesticides, and

Toxics Management Division, Air

Programs Branch, Regulatory Planning

and Development Section, Stationary

Source Planning Unit, 345 Courtland

Street NE., Atlanta, Georgia 30365.

Department for Environmental

Protection Natural, Resources and

Environmental Protection Cabinet, 803

Schenkel Lane, Frankfort, Kentucky

40601.

FOR FURTHER INFORMATION CONTACT:

Kimberly Bingham, Stationary Source

Planning Unit, Regulatory Planning and

Development Section, Air Programs

Branch, Air Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency, 345

Courtland Street NE., Atlanta, Georgia

30365.

SUPPLEMENTARY INFORMATION: The air

quality planning requirements for the

reduction of NOX emissions are set out

in section 182(f) of the CAA. Section

182(f) of the CAA requires states with

areas designated nonattainment for O3

and classified as moderate or above to

impose the same control requirements

for major stationary sources of NOX as

apply to major stationary sources of

volatile organic compounds (VOCs).

Section 182(f) provides further that

these NOX requirements do not apply to

areas outside an O3 transport region if

EPA determines that additional

reductions of NOX would not contribute

to attainment in such areas. In an area

that did not implement the section

182(f) NOX requirements, but did attain

the O3 standard as demonstrated by

ambient air monitoring data (consistent

with 40 CFR part 58 and recorded in the

EPA’s—Aerometric Information

Retrieval system (AIRS)), it is clear that

the additional NOX reductions required

by section 182(f) would not contribute

to attainment of the NAAQS.

The criteria established for the

evaluation of an exemption request from

the section 182(f) requirements are set

forth in an EPA memorandum from John

S. Seitz, Director, Office of Air Quality

Planning and Standards, dated May 27,

1994, entitled ‘‘Section 182(f) Nitrogen

Oxides (NOX) Exemptions—Revised

Process and Criteria,’’ and an EPA

guidance document entitled

‘‘Guidelines for Determining the

Applicability of Nitrogen Oxides

Requirements Under Section 182(f),’’

dated December 1993, from EPA, Office

of Air Quality Planning and Standards,

Air Quality Management Division.

On November 12, 1993, the

Commonwealth of Kentucky submitted

to EPA Region 4 a request to redesignate

the Kentucky portion of the HuntingtonAshland moderate O3 nonattainment

area to attainment. The redesignation

request is currently under review and

will be addressed in a separate

rulemaking. On August 16, 1994, the

Commonwealth requested that the

Kentucky portion of the HuntingtonAshland area be exempt from the NOX

RACT requirement in section 182(f) of

the CAA. The 182(f) exemption also

relieves the area of all NOX

requirements of the CAA such as New

Source Review, General Conformity,

and Inspection/Maintenance. The

exemption request is based upon

ambient air monitoring data from 1991,

1992, and 1993, which demonstrate that

the NAAQS for O3 has been attained in

the area without additional reductions

of NOX (a violation of the ozone NAAQS

occurs when the average number of

exceedances for any O3 monitoring site

in a three year period is greater than

1.0).

Only one O3 exceedance was recorded

in the Huntington-Ashland area for the

period from 1991 to 1993: Monitor 21–

019–0015—0.129ppm (1993). Thus,

there has been no violation of the

NAAQS in the area during this period

and the area has maintained the

standard through 1994.

EPA has reviewed the ambient air

monitoring data for O3 (consistent with

the requirements contained in 40 CFR

part 58 and recorded in AIRS) submitted

by the Commonwealth of Kentucky in

support of the exemption request and

has determined that a violation of the O3

NAAQS has not occurred in the

Huntington-Ashland, Kentucky portion

area for the relevant three year period.

Because the Kentucky portion of the

Huntington-Ashland area is meeting the

O3 NAAQS, this exemption request for

the area meets the applicable

requirements contained in the EPA

policy and guidance documents

referenced above.

Continuation of the section 182(f)

exemption granted herein is contingent

upon continued monitoring and

continued maintenance of the O3

NAAQS for the entire HuntingtonAshland area. If a violation of the O3

NAAQS is monitored in the Kentucky

portion of the Huntington-Ashland area,

EPA will provide notice in the Federal

Register. A determination that the NOX

exemption no longer applies would

mean that the NOX RACT provision (see

58 FR 63214 and 58 FR 62188) would

immediately be applicable to the

affected area. Although the NOX RACT

requirements would be applicable, some

reasonable period of notice is necessary

to provide major stationary sources

subject to the RACT requirements time

to purchase, install, and operate any

required controls. Accordingly, the

Commonwealth may provide sources a

reasonable time period to meet the

RACT emission limits after the EPA

determination that NOX RACT

requirements are necessary. EPA

expects the time period to be as

expeditious as practicable, but in no

case longer than 24 months.

The EPA proposed approval of the

Commonwealth of Kentucky’s request

for an exemption request from NOX and

RACT requirements of the CAA as

amended in 1990 (60 FR 5881).

Comments were received supporting the

exemption request. However, the

National Resources Defense Council

(NRDC), Sierra Defense Club, and EDF

submitted adverse comments to Mary

Nichols on August 24, 1994, addressing

all Federal Register notices proposing to

approve section 182(f) NOX exemption

requests. The EPA has responded to the

adverse comments by issue as set forth

below.

NRDC Comment 1

Certain commenters argued that NOX

exemptions are provided for in two

separate parts of the CAA, section

182(b)(1) and section 182(f). Because the

NOX exemption tests in subsections

182(b)(1) and 182(f)(1) include language

indicating that action on such requests

should take place ‘‘when [EPA]

approves a plan or plan revision,’’ these

commenters conclude that all NOX

exemption determinations by the EPA,

including exemption actions taken

under the petition process established

by subsection 182(f)(3), must occur

during consideration of an approvable

attainment or maintenance plan, unless

the area has been redesignated as

attainment. These commenters also

argue that even if the petition

procedures of subsection 182(f)(3) may

be used to relieve areas of certain NOX

requirements, exemptions from the NOX

conformity requirements must follow

the process provided in subsection

182(b)(1), since this is the only

provision explicitly referenced by

section 176(c), the CAA’s conformity

provisions.

EPA Response

Section 182(f) contains very few

details regarding the administrative
Federal Register / Vol. 60, No. 85 / Wednesday, May 3, 1995 / Rules and Regulations 21715

procedure for acting on NOX exemption

requests. The absence of specific

guidelines by Congress leaves EPA with

discretion to establish reasonable

procedures, consistent with the

requirements of the Administrative

Procedure Act (APA).

The EPA disagrees with the

commenters regarding the process for

considering exemption requests under

section 182(f), and instead believes that

subsections 182(f)(1) and 182(f)(3)

provide independent procedures by

which the EPA may act on NOX

exemption requests. The language in

subsection 182(f)(1), which indicates

that the EPA should act on NOX

exemptions in conjunction with action

on a plan or plan revision, does not

appear in subsection 182(f)(3). And,

while subsection 182(f)(3) references

subsection 182(f)(1), the EPA believes

that this reference encompasses only the

substantive tests in paragraph (1) [and,

by extension, paragraph (2)], not the

procedural requirement that the EPA act

on exemptions only when acting on

SIPs. Additionally, paragraph (3)

provides that ‘‘person[s]’’ (which

section 302(e) of the CAA defines to

include States) may petition for NOX

exemptions ‘‘at any time,’’ and requires

the EPA to make its determination

within six months of the petition’s

submission. These key differences lead

EPA to believe that Congress intended

the exemption petition process of

paragraph (3) to be distinct and more

expeditious than the longer plan

revision process intended under

paragraph (1).

Section 182(f)(1) appears to

contemplate that exemption requests

submitted under these paragraphs are

limited to States, since States are the

entities authorized under the Act to

submit plans or plan revisions. By

contrast, section 182(f)(3) provides that

‘‘person[s]’’ may petition for a NOX

determination ‘‘at any time’’ after the

ozone precursor study required under

section 185B of the Act is finalized, and

gives EPA a limit of 6 months after filing

to grant or deny such petitions. Since

individuals may submit petitions under

paragraph (3) ‘‘at any time’’ this must

include times when there is no plan

revision from the State pending at EPA.

The specific timeframe for EPA action

established in paragraph (3) is

substantially shorter than the timeframe

usually required for States to develop

and for EPA to take action on revisions

to a SIP. These differences strongly

suggest that Congress intended the

process for acting on personal petitions

to be distinct—and more expeditious—

from the plan-revision process intended

under paragraph (1). Thus, EPA believes

that paragraph (3)’s reference to

paragraph (1) encompasses only the

substantive tests in paragraph (1) [and,

by extension, paragraph (2)], not the

requirement in paragraph (1) for EPA to

grant exemptions only when acting on

plan revisions.

With respect to major stationary

sources, section 182(f) requires States to

adopt NOX NSR and RACT rules, unless

exempted. These rules were generally

due to be submitted to EPA by

November 15, 1992. Thus, in order to

avoid the CAA sanctions, areas seeking

a NOX exemption would need to submit

their exemption request for EPA review

and rulemaking action several months

before November 15, 1992. In contrast,

the CAA specifies that the attainment

demonstrations are not due until

November 1993 or 1994 (and EPA may

take 12–18 months to approve or

disapprove the demonstration). For

marginal ozone nonattainment areas

(subject to NOX NSR), no attainment

demonstration is called for in the CAA.

For maintenance plans, the CAA does

not specify a deadline for submittal of

maintenance demonstrations. Clearly,

the CAA envisions the submittal of and

EPA action on exemption requests, in

some cases, prior to submittal of

attainment or maintenance

demonstrations.

The CAA requires conformity with

regard to federally-supported NOX

generating activities in relevant

nonattainment and maintenance areas.

However, EPA’s conformity rules

explicitly provide that these NOX

requirements would not apply if EPA

grants an exemption under section

182(f). In response to the comment that

section 182(b)(1) should be the

appropriate vehicle for dealing with

exemptions from the NOX requirements

of the conformity rule, EPA notes that

this issue has previously been raised in

a formal petition for reconsideration of

EPA’s final transportation conformity

rule and in litigation pending before the

U.S. Court of Appeals for the District of

Columbia Circuit on the substance of

both the transportation and general

conformity rules. The issue, thus, is

under consideration within EPA, but at

this time remains unresolved.

Additionally, subsection 182(f)(3)

requires that NOX exemption petition

determinations be made by the EPA

within six months. The EPA has stated

in previous guidance that it intends to

meet this statutory deadline as long as

doing so is consistent with the

Administrative Procedure Act. The EPA,

therefore, believes that until a resolution

of this issue is achieved, the applicable

rules governing this issue are those that

appear in EPA’s final conformity

regulations, and EPA remains bound by

their existing terms.

NRDC Comment 2

Three years of ‘‘clean’’ data fail to

demonstrate that NOX reductions would

not contribute to attainment. EPA’s

policy erroneously equates the absence

of a violation for one three-year period

with ‘‘attainment.’’

EPA Response

The EPA has separate criteria for

determining if an area should be

redesignated to attainment under

section 107 of the CAA. The section 107

criteria are more comprehensive than

the CAA requires with respect to NOX

exemptions under section 182(f).

Under section 182(f)(1)(A), an

exemption from the NOX requirements

may be granted for nonattainment areas

outside an ozone transport region if EPA

determines that ‘‘additional reductions

of [NOX] would not contribute to

attainment’’ of the ozone NAAQS in

those areas. In some cases, an ozone

nonattainment area might attain the

ozone standard, as demonstrated by 3

years of adequate monitoring data,

without having implemented the section

182(f) NO provisions over that 3-year

period. The EPA believes that, in cases

where a nonattainment area is

demonstrating attainment with 3

consecutive years of air quality

monitoring data without having

implemented the section 182(f) NO

provisions, it is clear that the section

182(f) test is met since ‘‘additional

reductions of [NOX] would not

contribute to attainment’’ of the NAAQS

in that area. The EPA’s approval of the

exemption, if warranted, would be

granted on a contingent basis (i.e., the

exemption would last for only as long

as the area’s monitoring data continue to

demonstrate attainment).

NRDC Comment 3

Comments were received regarding

exemption of areas from the NOX

requirements of the conformity rules.

They argue that such exemptions waive

only the requirements of section

182(b)(1) to contribute to specific

annual reductions, not the requirement

that conformity SIPs contain

information showing the maximum

amount of motor vehicle NOX emissions

allowed under the transportation

conformity rules and, similarly, the

maximum allowable amounts of any

such NOX emissions under the general

conformity rules. The commenters

admit that, in prior guidance, EPA has

acknowledged the need to amend a

drafting error in the existing

transportation conformity rules to
21716 Federal Register / Vol. 60, No. 85 / Wednesday, May 3, 1995 / Rules and Regulations

ensure consistency with motor vehicle

emissions budgets for NOX, but want

EPA in actions on NOX exemptions to

explicitly affirm this obligation and to

also avoid granting waivers until a

budget controlling future NOX increases

is in place.

EPA Response

With respect to conformity, EPA’s

conformity rules, provide a NOX waiver

if an area receives a section 182(f)

exemption. In its ‘‘Conformity; General

Preamble for Exemption From Nitrogen

Oxides Provisions,’’ 59 FR 31238, 31241

(June 17, 1994), EPA reiterated its view

that in order to conform nonattainment

and maintenance areas must

demonstrate that the transportation plan

and TIP are consistent with the motor

vehicle emissions budget for NOX even

where a conformity NOX waiver has

been granted. Due to a drafting error,

that view is not reflected in the current

transportation conformity rules. As the

commenters correctly note, EPA states

in the June 17th notice that it intends to

remedy the problem by amending the

conformity rule. Although that notice

specifically mentions only requiring

consistency with the approved

maintenance plan’s NOX motor vehicle

emissions budget, EPA also intends to

require consistency with the attainment

demonstration’s NOX motor vehicle

emissions budget. However, the

exemptions were submitted pursuant to

section 182(f)(3), and EPA does not

believe it is appropriate to delay the

statutory deadline for acting on these

petitions until the conformity rule is

amended. As noted earlier in response

to a previous issue raised by these

commenters, this issue has also been

raised in a formal petition for

reconsideration of the Agency’s final

transportation conformity rule and in

litigation pending before the U.S. Court

of Appeals for the District of Columbia

Circuit on the substance of both the

transportation and general conformity

rules. This issue, thus, is under

consideration within the Agency, but at

this time remains unresolved. The EPA,

therefore, believes that until a resolution

of this issue is achieved, the applicable

rules governing this issue are those that

appear in the Agency’s final conformity

regulations, and the Agency remains

bound by their existing terms.

NRDC Comment 4

The CAA does not authorize any

waiver of the NOX reduction

requirements until conclusive evidence

exists that such reductions are counterproductive.

EPA Response

EPA does not agree with this

comment since it ignores Congressional

intent as evidenced by the plain

language of section 182(f), the structure

of the Title I ozone subpart as a whole,

and relevant legislative history. By

contrast, in developing and

implementing its NOX exemption

policies, EPA has sought an approach

that reasonably accords with that intent.

Section 182(f), in addition to imposing

control requirements on major

stationary sources of NOX similar to

those that apply for such sources of

VOC, also provides for an exemption (or

limitation) from application of these

requirements if, under one of several

tests, EPA determines that in certain

areas NOX reductions would generally

not be beneficial. In subsection

182(f)(1), Congress explicitly

conditioned action on NOX exemptions

on the results of an ozone precursor

study required under section 185B.

Because of the possibility that reducing

NOX in a particular area may either not

contribute to ozone attainment or may

cause the ozone problem to worsen,

Congress included attenuating language,

not just in section 182(f) but throughout

the Title I ozone subpart, to avoid

requiring NOX reductions where it

would be nonbeneficial or

counterproductive. In describing these

various ozone provisions (including

section 182(f), the House Conference

Committee Report states in pertinent

part: ‘‘[T]he Committee included a

separate NOX/VOC study provision in

section [185B] to serve as the basis for

the various findings contemplated in the

NOX provisions. The Committee does

not intend NOX reduction for

reduction’s sake, but rather as a measure

scaled to the value of NOX reductions

for achieving attainment in the

particular ozone nonattainment area.’’

H.R. Rep. No. 490, 101st Cong., 2d Sess.

257–258 (1990). As noted in response to

an earlier comment by these same

commenters, the command in

subsection 182(f)(1) that EPA ‘‘shall

consider’’ the 185B report taken together

with the timeframe the Act provides

both for completion of the report and for

acting on NOX exemption petitions

clearly demonstrate that Congress

believed the information in the

completed section 185B report would

provide a sufficient basis for EPA to act

on NOX exemption requests, even

absent the additional information that

would be included in affected areas’

attainment or maintenance

demonstrations. However, while there is

no specific requirement in the Act that

EPA actions granting NOX exemption

requests must await ‘‘conclusive

evidence’’, as the commenters argue,

there is also nothing in the Act to

prevent EPA from revisiting an

approved NOX exemption if warranted

due to better ambient information.

In addition, the EPA believes (as

described in EPA’s December 1993

guidance) that section 182(f)(1) of the

CAA provides that the new NOX

requirements shall not apply (or may be

limited to the extent necessary to avoid

excess reductions) if the Administrator

determines that any one of the following

tests is met:

(1) In any area, the net air quality

benefits are greater in the absence of

NOX reductions from the sources

concerned;

(2) In nonattainment areas not within

an ozone transport region, additional

NOX reductions would not contribute to

ozone attainment in the area; or

(3) In nonattainment areas within an

ozone transport region, additional NOX

reductions would not produce net ozone

air quality benefits in the transport

region.

Based on the plain language of section

182(f), EPA believes that each test

provides an independent basis for

receiving a full or limited NOX

exemption. Only the first test listed

above is based on a showing that NOX

reductions are ‘‘counter-productive.’’ If

one of the tests is met (even if another

test is failed), the section 182(f) NOX

requirements would not apply or, under

the excess reductions provision, a

portion of these requirements would not

apply.

Pollution Probe (Ontario 9–27–94)

Air Quality Comment

Several commenters stated that the air

quality monitoring data alone does not

support this exemption proposal. The

air quality levels are below USEPA’s

definition of an exeedance of the ozone

NAAQS at 0.125 ppm, but are greater

than the ozone NAAQS of 0.120 ppm.

EPA Response

For the reasons provided below, EPA

does not agree with the commenter’s

conclusion. As stated in 40 CFR 50.9,

the ozone ‘‘standard is attained when

the expected number of days per

calendar year with maximum hourly

average concentrations above 0.12 parts

per million (235 μg/m3) is equal to or

less than 1, as determined by Appendix

H.’’ Appendix H references EPA’s

‘‘Guideline for Interpretation of Ozone

Air Quality Standards’’ (EPA–450/4–79–

003, January 1979), which notes that the

stated level of the standard is taken as

defining the number of significant

figures to be used in comparison with
Federal Register / Vol. 60, No. 85 / Wednesday, May 3, 1995 / Rules and Regulations 21717

the standard. For example, a standard

level of 0.12 ppm means that

measurements are to be rounded to two

decimal places (0.005 rounds up to

0.01). Thus, 0.125 ppm is the smallest

concentration value in excess of the

level of the ozone standard.

Final Action

EPA is approving Kentucky’s request

to exempt the Kentucky portion of the

Huntington-Ashland area moderate O3

nonattainment area from the section

182(f) NOX RACT requirement. This

approval is based upon the evidence

provided by Kentucky and the

Commonwealth’s compliance with the

requirements outlined in the applicable

EPA guidance. If a violation of the O3

NAAQS occurs in the Kentucky portion

of the Huntington-Ashland area, the

exemption from the NOX RACT

requirement of section 182(f) of the CAA

in the applicable area shall no longer

apply. This action will be effective June

2, 1995.

Under section 307(b)(1) of the CAA,

42 U.S.C. 7607(b)(1), petitions for

judicial review of this action must be

filed in the United States Court of

Appeals for the appropriate circuit by

July 3, 1995. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for 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) of the CAA, 42 U.S.C.

7607(b)(2)).

The OMB has exempted these actions

from review under Executive Order

12866.

This action is not a SIP revision and

is not subject to the requirements of

section 110 of the CAA. The authority

to approve or disapprove exemptions

from NOX requirements under section

182 of the CAA was delegated to the

Regional Administrator from the

Administrator in a memo dated July 6,

1994, from Jonathan Cannon, Assistant

Administrator, to the Administrator,

titled, ‘‘Proposed Delegation of

Authority: ‘Exemptions from Nitrogen

Oxide Requirements Under Clean Air

Act Section 182(f) and Related

Provisions of the Transportation and

General Conformity Rules’—Decision

Memorandum.’’

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000. This rule approves an

exemption from a CAA requirement.

Therefore, I certify that it does not have

a significant impact on any small

entities affected.

List of Subjects in 40 CFR Part 52

Air pollution control, Carbon

monoxide, Hydrocarbons,

Intergovernmental relations, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides.

Dated: April 17, 1995.

Patrick M. Tobin,

Acting Regional Administrator.

Part 52, chapter 1, 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. 7401–7671q.

Subpart II—Kentucky

2. Section 52.937 is added to read as

follows:

§ 52.937 Review of new sources and

modifications.

(a) Approval—EPA is approving the

section 182(f) oxides of nitrogen (NOX)

reasonably available control technology

(RACT) exemption request submitted by

the Kentucky Department for

Environmental Protection on August 16,

1994, for the Kentucky portion of the

Huntington-Ashland ozone (O3)

moderate nonattainment area. This

approval exempts this area from

implementing NOX RACT on major

sources of NOX. If a violation of the O3

NAAQS occurs in the area, the

exemption from the requirement of

section 182(f) of the CAA in the

applicable area shall not apply.

(b) [Reserved]

[FR Doc. 95–10826 Filed 5–2–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[IN44–1–6538a; FRL–5190–6]

Approval and Promulgation of

Implementation Plans; Indiana

AGENCY: United States Environmental

Protection Agency (USEPA).

ACTION: Direct final rule.

SUMMARY: On March 23, 1994, the State

of Indiana requested a revision to the

Indiana State Implementation Plan (SIP)

for lead, in accordance with part D, title

I requirements of the Clean Air Act (the

Act) for the Marion County lead

nonattainment area. Supplemental

information was received on September

21, 1994. The submittal provides for the

control of both stack and fugitive

emissions by requiring, among other

things, revised emission limitations,

improved monitoring, building

enclosures, an amended fugitive lead

dust plan, and contingency measures in

the event that subsequent violations of

the lead National Ambient Air Quality

Standard (NAAQS) occur. USEPA made

a finding of completeness in a letter

dated September 23, 1994. Therefore,

because the submittal contains all the

necessary elements under part D,

USEPA is approving it. In the proposed

rules section of this Federal Register,

USEPA is proposing approval of and

soliciting public comment on this

requested SIP revision. If adverse

comments are received on this action,

USEPA will withdraw this final rule

and address the comments received in

response to this action in a final rule on

the related proposed rule which is being

published in the proposed rules section

of this Federal Register. A second

public comment period will not be held.

Parties interested in commenting on this

action should do so at this time.

DATES: This final rule is effective on July

3, 1995 unless an adverse comment is

received by June 2, 1995. If the effective

date of this action is delayed due to

adverse comments, timely notice will be

published in the Federal Register.

ADDRESSES: Written comments should

be sent to: J. Elmer Bortzer, Chief,

Regulation Development Section,

Regulation Development Branch (AR–

18J), U.S. Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, Illinois 60604. Copies of the

SIP revision request and USEPA’s

analysis are available for inspection at

the following address: U.S.

Environmental Protection Agency,

Region 5, Air and Radiation Division

(AR–18J), 77 West Jackson Boulevard,

Chicago, Illinois 60604. (It is

recommended that you telephone

Rosanne Lindsay at (312) 353–1151,

before visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT:

Rosanne Lindsay at (312) 353–1151.