60 FR 33748

Federal Register

Vol. 60, No. 125 Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY (EPA)

40 CFR Parts 52 and 81 [KY-074-1-6948; FRL-5223-5]

Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Commonwealth of Kentucky

60 FR 33748

DATE: Thursday, June 29, 1995

ACTION: Final rule.

SUMMARY: EPA is approving a maintenance plan and a request to redesignate the Kentucky portion of the Ashland-Huntington nonattainment area from nonattainment to attainment for ozone submitted on November 12, 1993, by the Commonwealth of Kentucky through the Natural Resources and Environmental Protection Cabinet (Cabinet). The Kentucky portion of the moderate ozone nonattainment area includes Boyd County and a portion of Greenup County. EPA is also approving the Commonwealth of Kentucky's 1990 baseline emissions inventory because it meets EPA's requirements regarding the approval on baseline emission inventories.

EFFECTIVE DATE: June 29, 1995.

ADDRESSES: Copies of the documents relative to this action are available for public inspection during normal business hours at the following locations. The interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460.

Environmental Protection Agency, Region 4 Air Programs Branch, 345 Courtland Street, NE, Atlanta, Georgia 30365.

Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet, Department for Environmental Protection, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601.

FOR FURTHER INFORMATION CONTACT: Scott Southwick, Regulatory Planning and Development Section, Air Programs Branch, Air, Pesticides & Toxics Management Division, Region 4 Environmental Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is 404/347-3555 extension 4207.

Reference file KY-074-1-6948.

SUPPLEMENTARY INFORMATION: On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA) were enacted. (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the CAA, EPA designated Boyd County of the Ashland-Huntington area as nonattainment by operation of law with respect to ozone, because the area was designated nonattainment immediately before November 15, 1990. The nonattainment area was expanded to include portions of Greenup County per section 107(d)(1)(A)(i) of the CAA (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.318.) The area was classified as moderate.

The moderate nonattainment area has ambient monitoring data that show no violations of the ozone National Ambient Air Quality Standard (NAAQS) during the period from 1991 through 1993. Therefore, on November 12, 1992, West Virginia requested to redesignate their portion of the Ashland- Huntington nonattainment area and the request was approved on December 21, 1994, by Region 3 (59 FR 65719). Also, Kentucky, on November 12, 1993, submitted for parallel processing an ozone maintenance plan and requested redesignation of the area to attainment with respect to the ozone NAAQS and EPA found the request complete. On May 24, 1995, the Cabinet revised the maintenance plan to address public comments, and EPA comments sent to the Cabinet in letters dated December 16, 1993, and May 5, 1994.

On February 7, 1994, Region 4 determined that the information received from the Cabinet constituted a complete redesignation request under the general completeness criteria of 40 CFR 51, appendix V, sections 2.1 and 2.2. However, for purposes of determining what requirements are applicable for redesignation purposes, EPA believes it is necessary to identify when the Cabinet first submitted a redesignation request that meets the completeness criteria. EPA noted in a previous policy memorandum that parallel processing requests for submittals under the amended CAA, including redesignation submittals, would not be determined complete. See "State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (Act) Deadlines," Memorandum from John Calcagni to Air Programs Division Directors, Regions 1-10, dated October 28, 1992 (Memorandum). The rationale for this conclusion was that the parallel processing exception to the completeness criteria (40 CFR 51, appendix V, section 2.3) was not intended to extend statutory due dates for mandatory submittals. (See Memorandum at 3-4). However, since requests for redesignation are not mandatory submittals under the CAA, EPA changed its policy with respect to redesignation submittals to conform to the existing completeness criteria. Therefore, EPA believes the parallel processing exception to the completeness criteria may be applied to redesignation request submittals, at least until such time as the EPA decides to revise that exception (See 58 FR 38108 "Approval and Promulgation of Maintenance Plan and Designation of Areas for Air Quality Planning Purposes for Carbon Monoxide, State of New York" published July 15, 1993, and "State Implementation Plans (SIP) Actions submitted in Response to Clean Air Act (CAA) Deadlines," Memorandum from John Calcagni to Air Program Directors, Region 1-10, dated October 28, 1992).

The Cabinet's redesignation request for the Kentucky portion of the Ashland-Huntington moderate ozone nonattainment area meets the five requirements of section 107(d)(3)(E) of the CAA for redesignation to attainment. The following is a brief description of how the Commonwealth of Kentucky has fulfilled each of these requirements. Because the maintenance plan is a critical element of the redesignation request, EPA will discuss its evaluation of the maintenance plan under its analysis of the redesignation request.

1. The Area Must Have Attained the Ozone NAAQS

The Cabinet's request is based on an analysis of quality assured ambient air quality monitoring data which is relevant to the maintenance plan and to the redesignation request. The ambient air quality monitoring data for calendar years 1991 through 1993 demonstrates attainment of the standard. Kentucky has also committed to continue monitoring the moderate nonattainment area. Therefore, Kentucky has met this requirement.

2. The Area Has Met all Applicable Requirements Under Section 110 and Part D of the CAA

EPA reviewed the Kentucky SIP and in the proposal document, EPA stated that except for sections 182(b)(2) and 182(f) requirements of the CAA, the Kentucky SIP contains all measures due under the amended CAA prior to or at the time the Cabinet submitted its redesignation request. Both sections 182(b)(2) and 182(f) requirements have now been met and are detailed below. For detailed information regarding applicable requirements other than section 182(f), refer to the proposed document published December 16, 1994 (59 FR 65000).

A. Section 182(a)(1)--Emissions Inventory

Kentucky has met this requirement. This notice gives final approval of the emission inventory. For detailed information regarding this requirement, refer to the proposal document.

B. Section 182(a)(2), 182(b)(2)--Reasonably Available Control Technology (RACT)

The proposal document stated that the Ashland-Huntington area would not be redesignated until the Calgon Corporation source specific SIP revision was approved. A document approving this source specific SIP revision was published on May 24, 1995, and the SIP revision became effective on June 16, 1995. See the proposal document for more detailed information. Therefore, Kentucky has met the requirement of RACT on all major sources of VOCs for ozone nonattainment areas designated moderate and above.

C. Section 182(a)(3)--Emissions Statements

On January 15, 1993, the Cabinet submitted a revision to the SIP to require emission statements. EPA commented on this SIP revision. In the proposal document, EPA stated that revisions were needed to the emission statement rule before EPA would approve the rule. The Cabinet submitted a second and different SIP package on December 29, 1994, which addressed EPA comments and met the federal requirements for emission statements. EPA published the approval of this second SIP revision on May 2, 1995, which became effective on July 10, 1995. For more details on the requirement of emission statements see the proposal document. Kentucky has met the emission statement requirement.

D. Section 182(b)(1)--15% Progress Plans

With the approval of this redesignation request, the requirement to submit a 15% plan is obviated because the redesignation request predated the requirement for a 15% plan. See proposal document for more detail.

E. Section 182(b)(3)--Stage II

On January 24, 1994, EPA promulgated the on board vapor recovery rule (OBVR). Section 202(a)(b) of the CAA provides that once the rule is promulgated, moderate areas are no longer required to implement Stage II. Thus, the Stage II vapor recovery requirement of section 182(b)(3) is no longer an applicable requirement. See proposal document for more detail.

F. Section 182(b)(4)--Motor Vehicle Inspection and Maintenance (I/M)

With the approval of this redesignation request, the requirement to submit a motor vehicle inspection and maintenance (I/M) rule is obviated because the redesignation request predated the requirement for a 15% plan. See proposal document for more detail.

G. Section 182(b)(5)--New Source Review (NSR)

Kentucky has met this requirement. For detailed information regarding this requirement, refer to the proposal document.

H. Section 182(f)--Oxides of Nitrogen (NOx) Requirements

This redesignation request predated the November 15, 1993, requirement for the submittal of NOx RACT rules. However, the Cabinet has submitted a 182(f) NOx requirements exemption. Action on the exemption request will be taken in a different document. For detailed information regarding this requirement, refer to the proposal document.

3. The Area Has a Fully Approved SIP Under Section 110(k) of the CAA

EPA has determined that Kentucky has a fully approved ozone SIP under section 110(k) for the moderate nonattainment area.

4. The Air Quality Improvement Must Be Permanent and Enforceable

Several control measures have come into place since the Ashland-Huntington nonattainment area violated the ozone NAAQS. Of these control measures, the reduction of fuel volatility from 10.5 psi in 1988 to 9.0 psi in 1992, as measured by the Reid Vapor Pressure (RVP), and fleet turnover due to the Federal Motor Vehicle Control Program (FMVCP) produced the most significant decreases in VOC emissions. The table below lists the actual enforceable emission reductions in tons per day (tpd) which are responsible for the recent air quality improvement in the Kentucky portion of the nonattainment area. The VOC emissions in the base year are not artificially low due to a depressed economy.

Reductions in VOC and NOx Emissions From 1990 to 1993

VOC (tpd) NOx (tpd)

3.88 0.28

5. The Area Must Have a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the ten years following the initial ten-year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation, adequate to assure prompt correction of any air quality problems.

EPA is approving the Commonwealth of Kentucky's maintenance plan for the Ashland-Huntington nonattainment area because EPA finds that the Commonwealth of Kentucky's submittal meets the requirements of section 175A.

A. Emissions Inventory--Base Year Inventory

On November 13, 1992, the Commonwealth of Kentucky submitted comprehensive inventories of VOC, NOx, and carbon monoxide (CO) emissions from the Ashland-Huntington nonattainment area. The inventory included biogenic, area, stationary, and mobile sources using 1990 as the base year for calculations to demonstrate maintenance. The 1990 inventory was projected to a 1993 attainment inventory using population growth rates. The 1993 inventory can serve as an attainment inventory because the ozone NAAQS was not violated during the 1993 calendar year. The CO and the biogenic VOC values are included as a part of the 1990 base year emission inventory.

The Commonwealth of Kentucky submittal contains the detailed inventory data and summaries by county and source category. Finally, this inventory was prepared in accordance with EPA guidance. A summary of the base year and projected maintenance year inventories are included in this document for VOCs and NOx. This document approves the base year inventory for the Ashland-Huntington area.

        CO Emission Inventory Summary for 1990 (TPD) 

                     Point   Area   Mobile  Non-road  Total 

Emissions for 1990   133.03    2.41   59.90    14.42  209.76 

Biogenic Emission Inventory 

               (TPD) Summary for 1990 
                       Biogenic 

Emissions for 1990      23.60 


B. Demonstration of Maintenance--Projected Inventories 

As summarized in the following tables, totals for VOC, and NOx emissions were 
projected from the 1990 base year, to the 1993 attainment year and out to 2005. 
These projected inventories were prepared in accordance with EPA guidance. 


             Kentucky Portion of the Ashland-Huntington 
               VOC Projection Inventory Summary (TPD) 

               1990    1993    1996    1999    2002    2005 
               base   attain   proj    proj    proj    proj 

Point         34.81   33.79   34.12    34.10   34.10   34.10 

Area           3.8     3.9     3.68     4.09    4.12    4.20 

Mobile       12.43     8.60    8.55     9.40    7.95    7.86 

Total        51.04    46.29   46.35    47.60   46.17   46.16 


             Kentucky Portion of the Ashland-Huntington 
              NOx Projection Inventory Summary (TPD) 

             1990     1993    1996     1999    2002     2005 
             base    attain   proj     proj    proj     proj 

Point       25.71     25.59   25.77    25.78   25.78   25.79 

Area         0.18      0.18    0.18     0.18    0.18    0.17 

Mobile       7.71      7.40    7.51     7.82    7.13    7.11 

Total       33.60     33.17   33.46    33.78   33.09   33.08 

Projections indicate that there was an emissions decrease in VOCs and NOx in the nonattainment area from the 1993 attainment baseyear to 2005. However, the projections show a temporary increase in NOx emissions of less than 2%. EPA believes this increase to be insignificant, and therefore, EPA believes that these emissions projections demonstrate that the nonattainment area will continue to maintain the ozone NAAQS.

C. Verification of Continued Attainment

Continued attainment of the ozone NAAQS in the nonattainment area depends, in part, on the Commonwealth of Kentucky's efforts toward tracking indicators of continued attainment during the maintenance period. The Cabinet will develop periodic emission inventories every three years beginning in 1996 and will evaluate these periodic inventories to see if they exceed the baseline emission inventory by more than 10%. If a 10% exceedance occurs, the state will evaluate existing control measures to see if any further emission reduction measures should be implemented.

The Commonwealth of Kentucky's contingency plan can also be triggered by an air quality exceedance. If an exceedance occurs, the Commonwealth will evaluate existing control measures to see if any further emission reduction measures should be implemented. The Commonwealth of Kentucky contingency plan will be triggered in the event of a monitored violation of the ozone standard. The Commonwealth then commits to adopt within six months, one or more of the contingency measures listed in the contingency plan. The Commonwealth has also committed to operate the air monitoring network in accordance to 40 CFR 58 with no reductions in the existing network.

D. Contingency Plan

The level of VOC and NOx emissions in the nonattainment area will largely determine its ability to stay in compliance with the ozone NAAQS in the future. Despite the Commonwealth's best efforts to demonstrate continued compliance with the NAAQS, the ambient air pollutant concentrations may exceed or violate the NAAQS. Therefore, the Commonwealth of Kentucky has provided contingency measures with a schedule for implementation in the event of a future ozone air quality problem. The plan contains the following possible contingency measures: (1)

Petition EPA to opt into reformulated gasoline (RFG), (2) Inspection and maintenance (I/M), and (3) Stage II. In addition to these contingency measures, the Commonwealth has other miscellaneous options to choose included in their maintenance plan. EPA finds that the contingency measures provided in the Commonwealth of Kentucky's submittal meet the requirements of section 175A(d) of the CAA.

E. Subsequent Maintenance Plan Revisions

In accordance with section 175A(b) of the CAA, the Commonwealth of Kentucky has agreed to submit a revised maintenance SIP eight years after the nonattainment area redesignates to attainment. Such revised SIP will provide for maintenance for an additional ten years.

Final Action

This document makes final, the action which proposed approval of the maintenance plan and request to redesignate the Kentucky portion of the Ashland-Huntington nonattainment area and the baseyear inventory for the area. The document proposing approval was published on December 16, 1994 (59 FR 65000). EPA received no adverse comments on the proposed action.

EPA finds that there is good cause for this redesignation to become effective immediately upon publication because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which exempts the area from certain Clean Air Act requirements that would otherwise apply to it. The immediate effective date for this redesignation is authorized under both 5 U.S.C. @ 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule "grants or recognizes an exemption or relieves a restriction" and @ 553(d)(3), which allows an effective date less than 30 days after publication was otherwise provided by the agency for good cause found and published with the rule."

Under section 307(b)(1) of the Act, 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 August 28, 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 Act, 42 U.S.C. 7607 (b)(2).)

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, I certify 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 regulatory flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7410(a)(2) and 7410(k)(3).

The OMB has exempted these actions from review under Executive Order 12866.

Nothing in this action shall be construed as permitting or allowing or establishing a precedent for any future request for a 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.

Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. The Administrator certifies that the approval of the redesignation request will not affect a substantial number of small entities.

Unfunded Mandates

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPA must undertake various actions in association with proposed or final rules that include a Federal mandate that may result in estimated costs of $100 million or more to the private sector, or to State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan revision, the State and any affected local or tribal governments have elected to adopt the program provided for under Section 107 of the Clean Air Act. These rules may bind State, local and tribal governments to perform certain actions and also require the private sector to perform certain duties. To the extent that the rules being approved by this action will impose no new requirements; such sources are already subject to these regulations under State law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. EPA has also determined that this final action does not include a mandate that may result in estimated costs of $100 million or more to State, local, or tribal governments in the aggregate or to the private sector.

List of Subjects in 40 CFR Part 52

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

Dated: June 9, 1995.

Patrick M. Tobin, Acting Regional Administrator.

Part 52 of chapter I, title 40, 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 S--Kentucky

2. Section 52.920 is amended by adding paragraph (c)(80) to read as follows:

@ 52.920 -- Identification of plan.

* * * * *

(c) * * *

(80) The maintenance plan for the Ashland-Huntington area which includes Boyd and a portion of Greenup Counties was submitted by the Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet on November 13 and May 24, 1995, as part of the Kentucky SIP. The 1990 Baseline Emission Inventory for the Ashland-Huntington area which includes Boyd and a portion of Greenup Counties which was submitted on November 13, 1992.

(i) Incorporation by reference.

(A) Kentucky Natural Resources and Environmental Protection Cabinet Request to Redesignate the Huntington-Ashland Moderate Ozone Nonattainment Area, Maintenance Plan, effective May 24, 1995.

(B) Appendix F Kentucky Projected Emissions Summary: VOC, CO, and NOx, effective May 24, 1995.

(C) Table 6-1 Summary of Biogenic Emissions Huntington-Ashland MSA, effective May 24, 1995.

(ii) Other material.

(A) May 24, 1995, letter from Phillip J. Shepherd, Secretary, Natural Resources and Environmental Protection Cabinet to John H. Hankinson, Regional Administrator, USEPA Region 4.

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42.U.S.C. 7401-7671q.

2. In @ 81.318, the ozone table is amended by removing the "Huntington-Ashland area" and its entries in the first alphabetical list and the entry for "Greenup County" in the second alphabetical list and by adding in alphabetical order to the second listing of counties the entries for "Boyd County" and "Greenup County" to read as follows:

@ 81.318 -- Kentucky.

* * * * *

                             Kentucky-Ozone 

                              Designation 
Classification 

  Designated     Date fn 1               Type            Date fn 
1 Type 

Boyd County    June 29, 1995  Unclassifiable/Attainment 

Greenup County June 29, 1995  Unclassifiable/Attainment 

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

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