Approval and Promulgation of Air Quality Implementation Plans; Kentucky; Approval of Section 110(a)(1) Maintenance Plans for the 1997 8-Hour Ozone Standards for the Edmonson County, KY; Greenup County Portion of the Huntington-Ashland, WV-KY; Lexington-Fayette, KY; and Owensboro, KY, 20853-20867 [2011-9092]
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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations
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[EPA–R04–OAR–2007–1186–201114; FRL–
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Approval and Promulgation of Air
Quality Implementation Plans;
Kentucky; Approval of Section
110(a)(1) Maintenance Plans for the
1997 8-Hour Ozone Standards for the
Edmonson County, KY; Greenup
County Portion of the HuntingtonAshland, WV–KY; Lexington-Fayette,
KY; and Owensboro, KY
Environmental Protection
Agency (EPA).
AGENCY:
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Final rule.
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begins].
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10/27/1982, 47 FR 20586.
6/29/1998, 63 FR 35141.
6/29/1998, 63 FR 35141.
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ENVIRONMENTAL PROTECTION
AGENCY
ACTION:
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3/6/1992, 57 FR 8082.
5/5/2003, 68 FR 23604.
4/14/2011, [Insert page number where the document
begins].
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9/6/1990, 55 FR 36635.
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EPA is taking final action to
approve revisions to the Kentucky State
Implementation Plan (SIP) that include
maintenance plans addressing the 1997
8-hour ozone national ambient air
quality standards (NAAQS or standards)
for the following four Kentucky
attainment areas: Edmonson County
(hereafter referred to as the ‘‘Edmonson
County Area’’); the portion of Greenup
County that was previously a part of the
Huntington-Ashland, West VirginiaKentucky 1-hour ozone maintenance
area (hereafter referred to as the
‘‘Greenup County Area’’); Fayette and
Scott Counties (hereafter referred to as
the ‘‘Lexington Area’’); and Hancock
County and the portion of Daviess
County that was previously a part of the
Owensboro 1-hour ozone maintenance
area (hereafter referred to as the
‘‘Owensboro Area’’)—collectively, these
SUMMARY:
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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations
areas will be referred to as the ‘‘Four
Kentucky Areas.’’ The Four Kentucky
Areas were 1-hour ozone maintenance
areas that were designated as attainment
areas for the 1997 8-hour ozone
NAAQS. As attainment areas that were
previously 1-hour maintenance areas,
Kentucky was required to submit
maintenance plans demonstrating how
these areas would maintain the 1997
8-hour ozone NAAQS. These
maintenance plans were submitted to
EPA on May 27, 2008, as revisions to
the Kentucky SIP, by the
Commonwealth of Kentucky
(Commonwealth), through the Kentucky
Energy and Environment Cabinet,
Division for Air Quality (DAQ), and
ensure the continued attainment of the
1997 8-hour ozone NAAQS through the
year 2020 for the Four Kentucky Areas.
These maintenance plans meet
applicable statutory and regulatory
requirements and are consistent with
EPA’s guidance. EPA is approving the
revisions pursuant to the Clean Air Act
(CAA or Act). This final rule also
responds to adverse comments made on
EPA’s previously published proposed
approvals of the maintenance plans for
the Four Kentucky Areas.
DATES: Effective Date: This rule will be
effective May 16, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2007–1186. All documents in the
electronic docket are listed in the
https://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
electronically in https://
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: Jane
Spann, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
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Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street,
SW., Atlanta, Georgia 30303–8960. Jane
Spann may be reached by phone at (404)
562–9029 or by electronic mail address
spann.jane@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. EPA Guidance and CAA Requirements
III. This Action
IV. Comments and Responses
V. Final Action
VI. Statutory and Executive Order Review
I. Background
In accordance with the CAA,
Edmonson County, Kentucky;
Huntington-Ashland, West VirginiaKentucky; Lexington-Fayette, Kentucky;
and Owensboro, Kentucky were
designated as nonattainment for the 1hour ozone NAAQS (effective
January 6, 1992, 56 FR 56694).
On November 13, 1992, Kentucky
submitted requests to redesignate the
Edmonson County, Lexington-Fayette,
and Owensboro 1-hour nonattainment
Areas to attainment for the 1-hour ozone
NAAQS. Subsequently, on November
12, 1993, Kentucky submitted a request
to redesignate the Kentucky portion of
the Huntington-Ashland Area to
attainment for the 1-hour ozone
NAAQS. In addition to the
redesignation requests, Kentucky
submitted the required ozone
monitoring data and maintenance plans
to ensure that the redesignated Areas
would remain in attainment for the 1hour ozone NAAQS for a period of 10
years after redesignation, consistent
with the CAA section 175A(a).
EPA approved Kentucky’s
maintenance plans and requests to
redesignate the Kentucky portion of the
Huntington-Ashland Area (60 FR 33748;
June 29, 1995); the Lexington-Fayette
Area (60 FR 47089; September 11,
1995); the Edmonson County Area (59
FR 55053; November 3, 1994); and the
Owensboro Area (60 FR 7124; February
7, 1995) for the 1-hour ozone NAAQS.
On April 30, 2004, EPA designated
areas for the 1997 8-hour ozone NAAQS
(69 FR 23858), and published the final
Phase I Implementation Rule for the
1997 8-hour ozone NAAQS (69 FR
23951) (Phase I Rule). Daviess,
Edmonson, Fayette, Greenup,1 Hancock
1 While the portion of Greenup County that was
a part of the 1-hour ozone Huntington-Ashland,
WV-KY Area was designated attainment, Boyd
County which was also a part of the 1-hour ozone
Huntington-Ashland, WV-KY Area was designated
nonattainment for the 1997 8-hour ozone NAAQS,
effective June 15, 2004. Boyd County was
subsequently redesignated to attainment for the
1997 8-hour ozone standard and has a CAA section
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and Scott Counties (including all
portions that were previously
designated nonattainment for the 1-hour
ozone NAAQS) were designated as
attainment for the 1997 8-hour ozone
NAAQS, effective June 15, 2004.
II. EPA Guidance and CAA
Requirements
As a consequence of their
designations as attainment for both the
1-hour and 8-hour ozone standards, the
Four Kentucky Areas (all 8-hour ozone
attainment areas) were required to
submit 10-year maintenance plans
pursuant to section 110(a)(1) of the CAA
and the Phase I Rule, 40 Code Federal
Regulations (CFR) 51.905(a)(4). On May
20, 2005, EPA issued guidance as to
how a state might fulfill the section
110(a)(1) maintenance plan obligation
established by the CAA and the Phase
I Rule (Memorandum from Lydia N.
Wegman to Air Division Directors,
Maintenance Plan Guidance Document
for Certain 8-Hour Ozone Areas Under
Section 110(a)(1) of Clean Air Act, May
20, 2005, hereafter referred to as
‘‘Wegman Memorandum’’). Neither
section 110(a)(1) nor any other
provision of the CAA contains detail
regarding the specific content of
maintenance plans for these types of
areas. EPA’s Phase I Rule, in 40 CFR
51.905(a)(4) provides that section
110(a)(1) maintenance plans must
include contingency measures.
On December 22, 2006, the United
States Court of Appeals for the District
of Columbia Circuit (DC Circuit) issued
an opinion that vacated portions of
EPA’s Phase I Rule. See South Coast Air
Quality Management District (SCAQMD)
v. EPA, 472 F.3d 882 (D.C. Cir. 2006).
On June 8, 2007, in response to several
petitions for rehearing, the DC Circuit
Court clarified that the Phase I Rule was
vacated only with regard to those parts
of the Rule that had been successfully
challenged. Of particular relevance, the
Court vacated those portions of the
Phase I Rule that provided for regulation
of the 1997 8-hour ozone nonattainment
areas designated under Subpart 1 (of
part D of the CAA) in lieu of Subpart 2,
among other portions of the Phase I
Rule. The Court’s decisions do not alter
any 8-hour ozone attainment area
requirements under the Phase I Rule for
CAA section 110(a)(1) maintenance
plans. EPA is thus finalizing its
approvals of Kentucky’s May 27, 2008,
proposed SIP revisions as satisfying the
section 110(a)(1) CAA requirements for
plans that provide for implementation,
maintenance, and enforcement of the
175A maintenance plan in effect. (72 FR 43172,
August 3, 2007).
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1997 8-hour ozone NAAQS in the Four
Kentucky Areas.
III. This Action
EPA is taking final action to approve
SIP revisions incorporating the 110(a)(1)
maintenance plans for the 1997 8-hour
ozone NAAQS for the Four Kentucky
Areas—Edmonson County, Greenup
County, Lexington, and Owensboro. On
May 27, 2008, Kentucky submitted these
maintenance plans to ensure the
continued attainment of the 1997 8-hour
ozone NAAQS through the year 2020. In
addition to reviewing the maintenance
plans, EPA has reviewed the updated
available air quality monitoring data for
the Four Kentucky Areas and has
confirmed, that based on the available
data that these Areas continue to meet
the 1997 8-hour ozone NAAQS. The
table below shows the 2007–2009
20855
design values for these attainment areas,
based on complete, quality-assured and
certified monitoring data. The table
below also shows the preliminary data
from 2010 which are consistent with
continued attainment. The data are
listed in EPA’s Air Quality System
database as the preliminary design value
report. EPA does not anticipate any
concerns regarding these data.
TABLE 1—1997 8-HOUR OZONE NAAQS DESIGN VALUE
Design value
(2007–2009)
parts per million (ppm)
Area
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Edmonson County Area ..........................................................................................................
Greenup County Area ..............................................................................................................
Lexington Area .........................................................................................................................
Owensboro Area ......................................................................................................................
In this final action, EPA is also
responding to adverse comments
received, from the Sierra Club and
Kentucky Environmental Foundation,
regarding EPA’s proposed rulemakings
to approve these revisions, 74 FR 12567,
March 25, 2009 (Greenup County Area,
Lexington Area and Edmonson County
Area); 75 FR 3183, January 20, 2010
(Owensboro Area); and 75 FR 16387,
April 1, 2010 (Owensboro limited
reopening of comment period). EPA
proposed approval of the maintenance
plans for the Four Kentucky Areas in
two separate actions. This final
rulemaking action is based on EPA’s full
review of relevant information and
consideration of the comments received,
and reflects EPA’s conclusion, that these
maintenance plans comply with section
110 of the CAA and EPA’s
implementing regulations. See 40 CFR
51.905(a)(4). EPA’s analyses of
Kentucky’s SIP revisions for the
Edmonson County, Greenup County,
and Lexington Areas are described in
detail in proposed and direct final rules
published March 25, 2009 (74 FR 12774
and 74 FR 12567, respectively).
Although EPA’s direct final rulemaking
was withdrawn on May 5, 2009 (74 FR
20601), due to the adverse comments
received, EPA’s proposed rulemaking
remained in place. EPA’s analysis for
Kentucky’s SIP revision for the
Owensboro Area is described in detail
in a proposed rule published on January
20, 2010 (75 FR 3183). Today’s action
responds to adverse comments received
on EPA’s March 25, 2009, and January
20, 2010, rulemakings, and finalizes
those rulemakings. EPA’s action
approving the maintenance plan for
each area is separate and independent of
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its approval of the plans for the other
areas.
IV. Comments and Responses
EPA received one set of adverse
comments from the Sierra Club and the
Kentucky Environmental Foundation
(hereafter referred to as ‘‘the
Commenters’’). These comments address
EPA’s March 25, 2009, proposed and
direct final rules to approve Kentucky’s
110(a)(1) maintenance plans for the
Edmonson County, Greenup County,
and Lexington Areas. This same set of
comments was submitted by the
Commenters for EPA’s January 20, 2010,
proposed rule to approve Kentucky’s
110(a)(1) maintenance plan for the
Owensboro Area. Today’s rulemaking
takes final action on the maintenance
plans for all Four Kentucky Areas. The
following section of this notice
summarizes the adverse comments
received, and sets forth EPA’s responses
to the comments. (The complete
comments are available in the docket for
this rulemaking.)
Comment 1. The Commenters claim
that EPA’s proposed and direct final
rules to approve Kentucky’s 110(a)(1)
maintenance plans for the Four
Kentucky Areas ‘‘run contrary to
Administrator’s Jackson’s promise that
the U.S. Environmental Protection
Agency decisions would henceforth be
based on three guiding principles:
transparency; use of sound science; and
respect for rule of law.’’ The
Commenters state that ‘‘[i]ssuing a direct
final rule in which the actual rules are
not knowable by reading the Federal
Register notice, or for that matter, the
administrative record, is not a
transparent process.’’ They further
complain that EPA’s proposal ignored
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0.072
0.072
0.077
0.075
Design value
(2008–2010)
ppm
0.070
0.069
0.069
0.071
the science of climate change and
contravened statutory language.
Response 1. EPA disagrees with the
Commenters’ characterization of the
content of the Federal Register notice.
The Commenters’ contention that
because the complete text of the SIP
revisions is not included in the Federal
Register notice, EPA has failed to
adhere to certain principles espoused by
EPA Administrator Jackson is simply
unsupported. EPA’s rulemaking here
has fulfilled the goals of transparency,
sound science, and respect for the law.
With regard to transparency, neither the
CAA nor the Administrative Procedure
Act mandates that the Federal Register
notice of proposed rulemaking, or final
rulemaking action, include the complete
text of the proposed SIP revisions.
EPA’s notice of proposed rulemaking
satisfied the notice requirements by
providing citations to the rules at issue,
offering the SIP revisions for public
review, and describing the subjects and
issues involved in the SIP revisions.
Because publication in the Federal
Register is costly and resource
intensive, EPA makes every effort to
provide key information in proposal
notices while at the same time using
Agency resources efficiently. EPA drafts
rulemaking notices to enable public
understanding of the subjects and issues
at hand. All documents related to this
rulemaking were available at https://
www.regulations.gov under the docket
number EPA–R04–OAR–2007–1186,
during the comment period for the
proposed rulemaking actions. For a
member of the public wishing to review
the complete text of the SIP revisions,
the notice of proposed rulemaking
included instructions for obtaining
access to the complete SIP revision. In
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addition, the public could also contact
the EPA representative designated in the
notice to obtain further information or
answers to questions. Thus, the
Commenters’ contention that, because
the complete text of the SIP revision
was not included in the Federal
Register notice, EPA failed to adhere to
EPA Administrator Jackson’s three
principles is simply unsupported.
EPA also rejects the Commenters’
assertion that the rulemaking violates
any of the three principles that have
been espoused by EPA Administrator
Jackson. EPA’s adherence to
Administrator Jackson’s three principles
(transparency, use of sound science, and
respect for rule of law) is clearly
reflected in the detailed information and
explanations set forth in the proposals,
direct final actions, and this final action,
including the substantive responses to
comments. As was discussed earlier in
this notice, and is also discussed later
in this response to comments section,
EPA’s approvals of the maintenance
plans are supported by the CAA, its
implementing regulations, and
applicable guidance.
Comment 2. The Commenters assert
that Kentucky DAQ has indicated that
Greenup County, in the HuntingtonAshland Area, Jessamine County in the
Lexington Area, and Edmonson County
are violating the 2008 8-hour ozone
NAAQS. Therefore, the Commenters
state, that the public interest mandates
that EPA quickly act to ensure that at
the very least, the 1997 8-hour ozone
NAAQS is maintained.
Response 2. The present rulemaking
action addresses solely the maintenance
of the 1997 8-hour ozone NAAQS for
the Edmonson County, Greenup County,
Lexington, and Owensboro Areas. EPA
is approving, pursuant to CAA section
110(a), Kentucky’s plans to assure
continued maintenance of the 1997
8-hour ozone NAAQS in the Four
Kentucky Areas. Attainment or
maintenance of any subsequently
adopted ozone NAAQS is not relevant
to this rulemaking action, and therefore
the issue raised by the Commenters is
outside the scope of this rulemaking.
The 2008 8-hour ozone NAAQS,
promulgated on March 12, 2008, is
irrelevant to this rulemaking. EPA is
currently reconsidering the 2008 8-hour
ozone NAAQS, and has not yet
designated areas for any subsequent
NAAQS. Actions that EPA may take
with regard to the 2008 (or a
reconsidered) ozone NAAQS are
separate from and independent of the
actions now being taken to approve the
110(a)(1) maintenance plans for the
Four Kentucky Areas in this
rulemaking.
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Comment 3. The Commenters assert
that the maintenance plans do not
ensure maintenance of the 1997 8-hour
ozone NAAQS because there is no
requirement that major stationary
sources demonstrate that they do not
cause or contribute to new violations of
the 1997 8-hour ozone NAAQS. The
basis for this assertion appears to be the
Commenters’ view that Kentucky’s
Prevention of Significant Deterioration
(PSD) program does not require new or
modified sources that trigger major PSD
review due to an increase in emissions
of nitrogen oxides (NOX) to demonstrate
that they will not cause or contribute to
a violation of the ozone NAAQS. The
Commenters point to a specific facility
and cite to a portion of the PSD
application for that facility where
volatile organic compounds (VOCs) are
considered for the ozone analysis, but
not NOX.
Response 3. On September 15, 2009,
the Kentucky DAQ filed an emergency
rule to immediately address the issue of
NOX as a precursor for ozone for PSD
purposes (which EPA required as part of
a November 29, 2005, rulemaking for
ozone implementation—70 FR 71612).
Kentucky’s emergency rule provides
explicit requirements for major new
sources and major modifications of
existing sources of NOX to demonstrate
that they will not cause or contribute to
a violation of the ozone NAAQS. The
emergency rule became effective
immediately in Kentucky and was
subsequently submitted to EPA for
approval as a SIP revision. On April 1,
2010, EPA proposed approval of
Kentucky’s rule to address NOX as a
precursor to ozone for PSD (75 FR
16388, April 1, 2010). EPA received
adverse comments from the Sierra
Club.2 On September 15, 2010 (75 FR
55988), EPA issued a final action
responding to the adverse comments
and approving the Commonwealth’s
rule to address NOX as a precursor to
ozone for PSD as a revision to the
Kentucky SIP. EPA thus believes that
the concerns voiced by the Commenters
in this rulemaking about alleged
deficiencies in Kentucky’s PSD program
2 The Commenters allege that East Kentucky
Power Cooperative (EKPC) is ‘‘taking advantage’’ of
the SIP not including NOX as a precursor for ozone
for a proposed J.K. Smith power plant. Comments
at pg. 3. This issue, among others, is part of a
lawsuit filed by Sierra Club against EPA which is
now pending before the DC Circuit Court of
Appeals. Notably, in briefs filed by the United
States in that action, it was explained that EKPC
announced its intentions to cancel plans for the
Smith facility and the permit at issue in the
comments was subsequently withdrawn (the
withdrawal document is included in the docket for
today’s rulemaking). Because Kentucky’s SIP now
includes NOX as a precursor for ozone, the
Commenters’ concern has been addressed.
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and the regulation of NOX as a precursor
to ozone have been satisfactorily
addressed and resolved.
Comment 4. The Commenters contend
that the maintenance plans are
inadequate because there is no
consideration of the impacts that
climate change will have on ozone
levels. The comment makes reference to
several publications, provides a
discussion on the impact of weather on
climate change and ozone, and
concludes that failure to consider this
important aspect of the problem would
lead to an arbitrary result. The
Commenters request that EPA evaluate
the maintenance plans in light of the
‘‘increasing danger climate change will
cause from ozone.’’
Response 4. With regard to the
comment that Kentucky’s analysis
improperly omits consideration of the
affect of climate change on ambient
ozone levels, EPA agrees that climate
change is a serious environmental issue;
however, EPA does not agree that the
maintenance plans at issue in today’s
action cannot be approved without the
climate change analysis outlined by the
Commenters. One of the reports cited to
by the Commenters (April 2009
‘‘Assessment of the Impacts of Global
Change on Regional U.S. Air Quality: A
synthesis of climate change impacts on
ground-level ozone,’’ page xxiv)
concludes that, ‘‘[t]hese studies suggest
that EPA’s Office of Air Quality
Planning and Standards should begin to
consider climate change, for example, in
the next update of EPA’s ozone
modeling guidance, especially for
planning horizons in 2020 and beyond.’’
Although the EPA report cited in the
comment indicates that climate change
increases ozone concentrations in
‘‘substantial regions of the country,’’ the
report also states that there are
‘‘pronounced differences in the broad
spatial patterns of change’’ among the
various modeling groups. While ozone
concentrations may be affected as early
as the 2020s (already after the date—
2014—required to be addressed by these
section 110(a) maintenance plans), most
of the modeling groups did not simulate
ozone concentration changes prior to
the 2050s. Furthermore, the report itself
states that ‘‘modeling uncertainties
persist, and further research is needed.’’
More specifically, the report further
states that ‘‘[c]urrent modeling
uncertainties lead to disagreements
about the spatial patterns of future
changes in meteorological variables and,
hence, the specific regional
distributions of future ozone changes
across the United States.’’ Several of the
projected models, in fact, provide
conflicting projections for the area in
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which Kentucky is located (see e.g., Fig.
3–1of the above mentioned EPA report).
The report concludes ‘‘[t]hese studies
suggest that EPA’s Office of Air Quality
Planning and Standards should begin to
consider climate change, for example, in
the next update of EPA’s ozone
modeling guidance, especially for
planning horizons in 2020 and beyond.’’
(Emphasis added.) Thus, the report
acknowledges that modeling guidance is
not yet available for the type of areaspecific analysis of effects of climate
change on ozone concentrations
required for SIP planning. EPA therefore
believes it is premature to require a
precise mathematical accounting in the
SIP process for the effect of higher
ambient temperatures due to climate
change on ozone concentrations. EPA
stands ready to reevaluate this position
when the state of science and
confidence in projection improve. Given
the above, however, at this time, EPA
cannot say Kentucky was in error when
it did not model the potential impact of
climate change on ozone in the Greenup
County, Edmonson County, Lexington
and Owensboro Areas as it developed
maintenance plans for those areas.
Comment 5. The Commenters contend
that Kentucky’s maintenance plans
ignore the possibility of changes in
weather and emissions outside the
covered counties. The Commenters also
contend that the 2002 emissions
inventory are not based on any actual
emissions data gathered with
continuous emissions monitors or
verified with actual emissions from
2005 and 2008. Thus, the Commenters
conclude that EPA’s approval is
arbitrary because the emissions forecasts
are flawed. The Commenters claim that
there are several reasons for the flaws,
including alleged failures to properly
consider the role of ozone and ozone
precursor transport and of weather.
Response 5. Under 40 CFR
51.905(a)(4) section 110(a)(1),
maintenance plans, like the one at issue
here, must demonstrate maintenance of
the 1997 8-hour NAAQS through 2014.
Kentucky has voluntarily extended the
coverage of its maintenance plans for
the Four Kentucky Areas for an
additional six years beyond the required
maintenance period (through 2020).
EPA has reviewed these plans and
determined that they satisfy applicable
requirements. The demonstrations are
based upon actual emissions
inventories, and projected emissions
through 2020. These projections take
into consideration population, state,
local and federal emission controls, and
other relevant factors. Unlike
maintenance plans for nonattainment
areas that are redesignated to
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attainment, for which section 175A of
the CAA specifies express requirements,
section 110(a)(1) maintenance plans for
areas designated attainment are not
subject to specific statutory
maintenance plan requirements. In
accordance with EPA guidance,
however, Kentucky did undertake an
analysis, summarized as follows, for
certain emissions groups such as
stationary sources, area sources and
some mobile sources. Response 5,
below, contains additional information
responsive to Comment 4.
Utilizing Standard Industrial Codes
(SIC), all point source emissions were
projected based on growth factors
calculated using Bureau of Economic
Analysis (BEA) projection data for
employment, as suggested by EPA and
utilized for previous point source
projections in similar contexts. The
point source data provided SIC codes
used to determine a short title
description that matched the
corresponding description found in the
BEA data. The application of growth
factors for each projection was then
used for point sources. Appendix E to
Kentucky’s May 27, 2008, SIP revisions
provide information on how point
source projections were determined.
Area sources can be defined as those
sources that are generally too small and/
or too numerous to be handled
individually in the point source
inventory. Area source emissions were
estimated by multiplying an emission
factor by a known indicator of collective
activity such as number of employees or
population. For area source emission
projections, population growth factors
for each chosen year were calculated
using an exponential formula in the
EXCEL software. The application of
these growth factors for each projection
was then used for area sources.
Information used to calculate growth
factors, including population
information used to project area sources,
was provided by the University of
Louisville Urban Data Center and can be
found in Appendix F of Kentucky’s May
27, 2008, SIP revisions.
The non-highway mobile category is
broken down into three groups that
include two- and four-cycle gasoline
engines and diesel engines (other nonhighway engines), railroad locomotives,
and aircraft. Emissions are estimated by
multiplying the base year inventory by
a known indicator of collective activity
such as fuel consumed or landing/
takeoff operations. For locomotive and
aircraft emission projections, population
growth factors for each chosen year
were calculated using the before
mentioned formula. The application of
these growth factors for each projection
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20857
was then used for each of these nonhighway categories. For other nonhighway categories (e.g., industrial
equipment, tractors, leaf blowers), EPA’s
nonroad model was used to determine
the future year projections. Nonroad
model and non-highway projection
information can be found in Appendix
G of Kentucky’s May 27, 2008, SIP
revisions. Updated minimum and
maximum summer temperatures and
ambient temperatures were utilized for
input into the nonroad model. EPA
Volume IV mobile source guidance was
followed in determining the updated
temperature data. Please see Appendix
C of Kentucky’s May 27, 2008, SIP
revisions for specific temperature
documentation.
The use of emissions inventories and
emissions forecasts has long been an
accepted method for evaluating
maintenance of the NAAQS under
section 175A for nonattainment areas
and EPA’s guidance advises its use for
purposes of maintenance plans under
CAA section 110(a)(1). The Courts have
agreed with EPA’s longstanding view
that a maintenance demonstration for a
nonattainment area, and a fortiori an
attainment area, need not be based on
modeling. Wall v. EPA, 265 F.3d 426
(6th Cir. 2001); Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004). See also 66 FR
53094, 53099–53100 (October 19, 2001);
68 FR 25430–25431 (May 12, 2003).
In its guidance issued May 20, 2005,
EPA explained that, ‘‘[t]he typical
method that areas have used in the past
to demonstrate that an area will
maintain the 1-hour standard has been
to identify the level of ozone precursor
emissions in the area which is sufficient
to attain the NAAQS and to show that
future emissions of ozone precursors
will not exceed the attainment levels.’’
Wegman Memorandum at pg. 4. The
inventory and projections Kentucky
provided in the maintenance plans at
issue here use this method to
demonstrate that the Areas will
maintain the 8-hour ozone standards.
Complete, quality-assured air quality
monitoring data through the year 2009
for all of these Areas showed
maintenance of the 1997 8-hour ozone
NAAQS, and data available for 2010
indicate continued maintenance.
Maintenance is demonstrated by
showing that during the maintenance
period the level of precursor emissions
remains at or below the attainment
level. Variations in weather are
accounted for by the 3-year averaging
required for finding of attainment (see
e.g., the 2004 attainment designation).
The requirement that there be three
years of quality-assured monitoring data
to demonstrate attainment is the
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established mechanism by which EPA
takes meteorological variability into
account for purposes of determining
attainment and maintenance. These
issues have been addressed multiple
times in a variety of EPA rulemakings
and court decisions. Today’s actions are
consistent with EPA’s longstanding
interpretation of the maintenance plan
requirements of the CAA. See e.g., 69 FR
21719 (April 22, 2004) (redesignation of
the San Francisco area); 66 FR 53094,
53099 (October 19, 2001) (redesignation
of the Pittsburgh-Beaver area); 68 FR
25418, 25430 (May 12, 2003)
(redesignation of the St. Louis area); 40
CFR 50.9 and Appendix H (method for
determining attainment of 1-hour
standard; Appendix H states that three
years of data is required); Appendix I
(method for 8-hour standard; Appendix
I contain similar statement); Sierra Club
v. EPA, 375 F.3d 537, 539–543 (7th Cir.
2004) (discussing the modeling required
for maintenance plans). Similarly, the
Commenters’ concerns about potential
modifications of sources or new sources
that may affect ambient levels are
addressed by the New Source Review
(NSR) and PSD programs, as well as by
the NOx SIP call requirements and other
programs designed to regulate
pollutants both inside and outside the
covered counties. As a result, and
contrary to the Commenters’ contention,
EPA’s review of the maintenance
demonstrations considered the role of
emissions from outside the area in
maintenance of the standard in the Four
Kentucky Areas. EPA took into account
the relevant federal and state
requirements that will help ensure that
emissions from outside the area will not
interfere with continued maintenance in
the area. These include, among others,
the NOx SIP Call, NSR/PSD
requirements, and other regulations that
control emissions from outside the Four
Kentucky Areas. (See also Response 8,
below.)
The inventory and projections
Kentucky provided in the maintenance
plans use this method to demonstrate
the Four Kentucky Areas will continue
to maintain the 1997 8-hour ozone
NAAQS. The inventory and emissions
analyses performed by Kentucky were
conservative, and reviewed by EPA, to
ensure that they reasonably establish
maintenance of the NAAQS pursuant to
section 110(a)(1). EPA’s review of
Kentucky initial attainment inventories
and inventory projections of future
maintenance inventories confirms that
maintenance will continue through the
requisite period. Moreover, as is
explained further below, the
contingency measures portion of the
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maintenance plan provides a backstop
for maintenance, functioning to correct
a violation if, despite the projections,
one should occur.
With regard to the analyses performed
by Kentucky, the emissions inventory
includes four components: Point, area,
highway mobile and non-highway
mobile sources. The Four Kentucky
Areas were designated attainment for
the 1997 8-hour ozone NAAQS in 2004
using 2001–2003 data. They had an
option to choose one of the three
attaining years to use as a base year for
emission inventory purposes. For these
SIP revisions, Kentucky chose to use
2002, an attainment year (for both the 8hour and 1-hour ozone NAAQS), as the
year for developing a new
comprehensive ozone precursor
emissions inventory from which
projected emissions could be developed
for 2005, 2008, 2011, 2014, 2017, and
2020. Maintenance is demonstrated by
comparing the attainment year
emissions to the emissions in the years
listed above. The following is a
summary of the emission projection
methodology that was used to forecast
emissions over the maintenance period;
the docket includes a more detailed
description of this methodology.
Point sources are defined as stationary
sources that emit 10 or more tons per
year (tpy) of VOC or 100 tpy or more of
NOx or carbon monoxide (CO). Annual
point source emissions data were used.3
Point source information is collected by
Kentucky from a number of sources
(including permitting information) and
point source information was provided
for utilizing SIC (Response 4, above,
discusses the various sources of
emissions information used by
Kentucky). See also Appendix E of
Kentucky SIP Revisions (specifically
discussion regarding point source
projections). Point source emission
projections were based on growth
factors calculated using BEA projection
data for employment. The point source
data provided SIC codes used to
determine a title description that
matched the corresponding description
found in the BEA data. The application
of growth factors for each projection was
then used for point sources.
As mentioned above, area sources are
those that are generally too small and/
or too numerous to be handled
3 Actual emissions were used for base year
analyses. Projections were used for future year
inventories which, at the time, were for 2005 and
2008. Since then, Kentucky has used the 2005 and
2008 actual inventories that were submitted to EPA
per their Consolidated Emissions Reporting Rule
(CERR) requirement for the development of the EPA
National Emission Inventory (NEI) in order to
compare to the previously submitted projected
emissions in the maintenance plan submissions.
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Fmt 4700
Sfmt 4700
individually in the point source
inventory. The University of Louisville
Urban Data Center provided information
used to calculate growth factors,
including population information used
to project emissions from area sources.
Two and four-cycle gasoline engines
and diesel engines (non-highway
engines), railroad locomotives and
aircraft make up the non-highway
mobile category. Emissions were
estimated by multiplying the base year
inventory by a known indictor of
collective activity such as fuel
consumed or landing/takeoff operations.
For locomotive aircraft emission
projections, population growth factors
for each chosen year were calculated.
For other non-highway categories such
as industrial equipment and tractors,
EPA’s nonroad model was used to
determine future year projections.
Daily Vehicle Miles Traveled (DVMT)
and speeds for 2002 and the projection
years were obtained from the Kentucky
Transportation Cabinet and used to
calculate highway mobile source
emissions. EPA’s MOBILE6.2 model was
used to derive appropriate projection
year emission factors that were
multiplied by the corresponding DVMT
to determine the projected highway
mobile source emissions. The 1990
mobile emissions were recalculated
using the updated MOBILE6.2
emissions model in order to standardize
the comparison of the 1990 numbers
with the 2002 and 2020 mobile
emissions developed using this model.
EPA agrees with the methodology used
to develop the 2005 and 2008 on-road
emissions as projected from the 2002
actual emissions and submitted in the
SIP revisions. The projection
methodology used to develop future
year on-road mobile emissions found in
the SIP revisions, combined with the
fact that later determined actual
emissions were considerably lower than
already projected emissions, provides a
strong basis for approval of these
maintenance plans.
With respect to the Commenters’
contention that attainment inventories
were not based on actual emissions, in
fact the 2002 emission inventories for
the Greenup County, Owensboro, and
Lexington Areas were based on actual
point source emissions. There are no
point sources in the Edmonson Area.
(See page 2.1 of Appendix C of each
Area’s 110(a)(1) maintenance plan
submittal.) At the time of the initial
submission of these 110(a)(1)
maintenance plans in 2008, the actual
emissions for some source categories for
2005 and 2008 were not required to be
submitted. The Consolidated Emissions
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Reporting Rule (CERR) 4 (40 CFR part
51, subpart A) requires states to submit
to EPA an emissions inventory for all
source categories every three years and
at the time the SIP revisions were due,
only the 2002 emissions were available
for states to use. See 40 CFR 51.30. Not
every source is subject to continuous
emissions monitoring, so the
information on actual emissions may
vary between source categories.
Kentucky has since reviewed the data
and compared the actual emissions for
2005 and 2008 with the projected
emissions for 2005 and 2008 which
were contained in the maintenance plan
submittals. This analysis is available in
the docket for this final rulemaking.
EPA reviewed Kentucky’s analysis and
found it reliable and compelling. The
comparisons revealed that the emissions
projected in Kentucky’s maintenance
plans for the Four Kentucky Areas were
higher than the actual emissions by an
average of 19 percent for VOC and 11
percent for NOx for 2005; they were
higher by an average of 26 percent for
VOC and 47 percent for NOx for 2008.
Kentucky’s maintenance plans
demonstrated that, even using
projections of emissions that were
greater than those that actually occurred
in these years, those projections
remained below the attainment baseyear inventories. Of course, the fact that
the actual emissions that occurred in
these Areas were substantially less than
those that were projected provides
further demonstration of continued
maintenance. Thus, actual emissions
data during the maintenance period
have proven that Kentucky’s projected
emissions were very conservative, and
confirm EPA’s view that the plans
provide adequate assurance of
maintenance during the requisite
period. In the future, EPA anticipates
even further reductions of these ozone
precursors. This information supports
the position that Kentucky’s emissions
projections provided with the 110(a)(1)
maintenance plans were conservative.
In addition to the assurance provided
by the information above, which
demonstrates the conservative nature of
the emissions forecasts (which were
supported by actual emissions data as
explained in the previous paragraph),
the contingency measures portion of
maintenance plans serves as a backstop
in the event that any of these Areas
requires supplemental measures to
maintain air quality. These contingency
measures help to ensure that the Areas
continue to maintain the NAAQS of
concern and can quickly correct a
violation should one occur. Kentucky’s
maintenance plans contain two types of
such contingency measures for each of
the Four Kentucky Areas. In the event
that exceedances (as contrasted with
actual violations) of the 8-hour ozone
NAAQS are monitored in any portion of
the maintenance area, or if periodic
emission inventory updates reveal
excessive or unanticipated growth
greater than 10 percent in ozone
precursor emissions, Kentucky will
evaluate existing control measures to
see if additional control measures
should be implemented at that time. If
a monitored violation occurs, Kentucky
has committed to a contingency
measure schedule where one or more
contingency measures will be adopted
within nine months and implemented
within 18 months to bring the area back
into attainment.
For the reasons discussed above, the
Commenters have failed to identify a
deficiency in the 110(a)(1) maintenance
plans that warrants any action other
than approval.
Comment 6. The Commenters state
that the maintenance plans rely both on
assuming that measures will be
implemented in the future to decrease
emissions and assuming that Kentucky
will implement contingency measures if
the maintenance plans do not achieve
their objectives. Specifically, the
Commenters argue that Kentucky used a
Reid Vapor Pressure (RVP) in gasoline
of 8.6 pounds per square inch (psi) in
developing future emission levels even
20859
though an RVP of only 9.0 psi is legally
required. The Commenters believe that
the maintenance demonstration should
be based on legal requirements rather
than assumptions of over-compliance.
Response 6. The forecasting of
emissions in a maintenance plan
involves the use of reasonable,
scientifically-based premises that form
the basis for expectations of future
emissions, the maintenance projections,
and contingency measure requirements.
It is not necessary here for EPA to
accept or reject the Commenters’
contentions regarding historically-based
over-compliance with legal
requirements. Even if EPA assumes, as
the Commenters insist, that EPA
evaluates maintenance using the less
stringent RVP level of 9.0 psi, the Four
Kentucky Areas all demonstrate
continued maintenance. First, the
Commenters’ concern with the
stringency of RVP levels does not
pertain to the Greenup County Area,
since Kentucky modeled only 9.0 psi for
RVP for this Area, and did not assume
a lower RVP. Thus, the Commenters’
assertion regarding RVP levels more
stringent than 9.0 psi applies only to the
110(a)(1) maintenance plans for the
Edmonson County, Lexington and
Owensboro Areas. For these Areas, EPA
has received and evaluated additional
information that responds to the
Commenters’ concern. Kentucky has
demonstrated that the Edmonson
County, Lexington and Owensboro
Areas are projected to demonstrate
continued maintenance of the 1997 8hour ozone NAAQS with fuel modeled
at either 9.0 psi (the statutory level) or
at 8.6 psi (the level indicated by
historical surveys that these Areas
typically receive). This provides a
modeled analysis showing a comparison
of VOC and NOx emissions using both
the 8.6 and 9.0 psi RVP gasoline. Table
2 below shows the difference in
emissions for the Edmonson County,
Lexington and Owensboro Areas at RVP
levels model at both 8.6 psi and 9.0 psi.
TABLE 2—EDMONSON COUNTY, LEXINGTON AND OWENSBORO AREAS HIGHWAY MOBILE SOURCE EMISSIONS
[Tons per day (tpd)]
8.6 psi
9.0 psi
Difference between 8.6 psi &
9.0 psi
County
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VOC
2002:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
0.55
N/A
14.14
2.95
VOC
NOX
0.96
N/A
23.43
5.71
NOX
0.56
1.09
14.66
3.05
VOC
0.97
1.56
23.45
5.71
4 The CERR is discussed in greater detail in
Response 14.
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0.01
N/A
0.52
0.1
0.01
N/A
0.02
0
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TABLE 2—EDMONSON COUNTY, LEXINGTON AND OWENSBORO AREAS HIGHWAY MOBILE SOURCE EMISSIONS—Continued
[Tons per day (tpd)]
8.6 psi
9.0 psi
Difference between 8.6 psi &
9.0 psi
County
VOC
mstockstill on DSKH9S0YB1PROD with RULES
Hancock ............................................
Daviess .............................................
2005:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
Hancock ............................................
Daviess .............................................
2008:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
Hancock ............................................
Daviess .............................................
2011:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
Hancock ............................................
Daviess .............................................
2014:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
Hancock ............................................
Daviess .............................................
2017:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
Hancock ............................................
Daviess .............................................
2020:
Edmonson .........................................
Greenup ............................................
Fayette ..............................................
Scott ..................................................
Hancock ............................................
Daviess .............................................
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Jkt 223001
NOX
VOC
NOX
0.1
3.98
0.18
5.97
0.11
4.12
0.18
5.97
0.01
0.14
0
0
0.42
N/A
10.24
2.23
0.07
2.9
0.79
N/A
18.14
4.58
0.13
4.64
0.43
0.87
10.64
2.32
0.07
3.01
0.79
1.33
18.16
4.59
0.13
4.64
0.01
N/A
0.4
0.09
0
0.11
0
N/A
0.02
0.01
0
0
0.39
N/A
9.34
2.13
0.07
2.6
0.72
N/A
16.27
4.26
0.12
4.1
0.4
0.75
9.7
2.21
0.07
2.7
0.72
1.12
16.29
4.27
0.12
4.1
0.01
N/A
0.36
0.08
0
0.1
0
N/A
0.02
0.01
0
0
0.36
N/A
8.39
2
0.06
2.29
0.6
N/A
13.54
3.66
0.1
3.37
0.36
0.64
8.7
2.07
0.06
2.38
0.6
0.9
13.56
3.67
0.1
3.38
0
N/A
0.31
0.07
0
0.09
0
N/A
0.02
0.01
0
0.01
0.3
N/A
7.3
1.84
0.05
1.95
0.46
N/A
10.44
2.93
0.07
2.56
0.31
0.54
7.55
1.9
0.05
2.02
0.46
0.68
10.45
2.93
0.07
2.56
0.01
N/A
0.25
0.06
0
0.07
0
N/A
0.01
0
0
0
0.27
N/A
6.62
1.74
0.04
1.74
0.38
N/A
8.36
2.43
0.06
2.02
0.28
0.48
6.84
1.8
0.04
1.8
0.36
0.53
8.37
2.43
0.06
2.02
0.01
N/A
0.22
0.06
0
0.06
¥0.02
N/A
0.01
0
0
0
0.24
N/A
6.04
1.85
0.04
1.56
The overall effect on VOC emissions
of the difference between 8.6 and 9.0 psi
RVP gasoline is 0.52 tpd or less for each
of the projection years for the Edmonson
County, Lexington, and Owensboro
Areas. Further, each of the projected
VOC emission inventories using 9.0 psi
RVP gasoline is less than the baseline
VOC emission inventory for the 2002
attainment year. Based upon these data,
EPA concludes that the Edmonson
County, Lexington, and Owensboro
Areas’ 1997 8-hour maintenance plans
demonstrate continued maintenance
with the use of either 8.6 or 9.0 psi RVP
gasoline in these Areas. See also
Approval Grant Parish 110(a)(1)
Maintenance Plan, 72 FR 62579
VerDate Mar<15>2010
VOC
NOX
0.3
N/A
7.03
2.1
0.05
1.68
0.25
0.42
6.23
1.7
0.04
1.61
0.3
0.44
7.05
2.11
0.05
1.68
0.01
N/A
0.19
¥0.15
0
0.05
0
N/A
0.02
0.01
0
0
(November 6, 2007) and 73 FR 8202
(February 13, 1008).
Comment 7. The Commenters state
that Kentucky’s maintenance plans
included unidentified maximum
achievable control technology (MACT)
standards as sources of reductions of
VOC. The Commenters assert that this
analysis failed to consider that the
MACT standards could result in the
increase of NOX, VOC, and CO
emissions due to the ‘‘energy penalty’’
from new emission control devices.
Response 7. The Commenters do not
identify the specific impact of any
‘‘energy penalty’’ on maintenance of the
1997 8-hour ozone NAAQS in the Four
Kentucky Areas. Energy inefficiencies,
as explained by the Commenters, may
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apply to any number of pollutants and
the Commenters did not provide
information specifically addressing how
an energy penalty would affect
emissions reductions relevant to today’s
action. For purposes of responding to
this comment, EPA considered the term
‘‘energy penalty’’ to refer to a reduction
in energy output that might result in the
increase of emissions.
In the 110(a)(1) maintenance plans at
issue, Kentucky stated, ‘‘[t]he continued
improvement and maintenance of the
air quality in the [areas], as verified by
the lack of violations of the 8-hour
ozone standard, is due to the
implementation of permanent and
enforceable emission reductions * * *.
The following information outlines
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emission reduction measures that have
occurred from 1990 through 2002, and
those implemented after 2002 and
projected to 2020.’’ Kentucky then lists
Maximum Achievable Control
Technology (MACT)—promulgated
national emission standards for
hazardous air pollutants (commonly
referred to as ‘‘MACT standards’’)—
controls in this list of measures. With
specific regard to that issue, Kentucky
explained, ‘‘* * * (m)any of the
[Hazardous Air Pollutants] HAPs under
these industrial categories of controls
are also VOCs and compliance with
these new MACT standards as they are
being promulgated will decrease VOC
emissions from the affected industries
* * *’’. Based on discussions with
Kentucky, EPA concludes that
Kentucky’s maintenance analyses do not
rely on quantified reductions from
MACT standards. Rather, the analyses
simply recognize that implementation of
MACT standards may result in collateral
reductions of VOCs.5 For that reason,
Kentucky listed ‘‘MACT’’ generally as
part of the permanent and enforceable
reductions in place in the Areas;
however, Kentucky did not quantify
those reductions numerically with
regard to the maintenance plans at issue
today and does not rely on them to
demonstrate maintenance. EPA further
notes that even if Kentucky had claimed
reductions from MACT standards, the
Commenters simply claim without any
supporting information that an energy
penalty will occur and will result in
increased VOC emissions. Without
additional specific information, EPA
cannot conclude that there will be any
energy penalty whatsoever.
In terms of the environmental benefit
of the MACT standards, Kentucky’s
expectation that the implementation of
the MACT standards will have an
environmental benefit for ozone is
reasonable. The Commenters do not
provide information supporting the
comment that installation of control
technology will require more fuel to be
burned such that emissions will
increase. Additionally, the Commenters
provide the example of the installation
of carbon injection or a baghouse to
control mercury; however, no emissions
calculation based on a specific facility is
provided. As a result, the Commenters
5 On September 10, 2010, Jane Spann, Regional
Ground-Level Ozone Contact for Region 4, spoke
with John Gowins of Kentucky DAQ
(Environmental Control Supervisor) regarding this
issue. Mr. Gowins confirmed that Kentucky had not
numerically quantified any specific MACT
reductions, but was simply recognizing that the
existence of federal regulations in effect at the time
were ‘‘permanent and enforceable reductions’’ with
regard to VOCs.
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have not demonstrated that a source
will necessarily become less efficient
because of these control technologies (as
was stated in the comment); nor that
Kentucky’s maintenance plans are
deficient for this reason. EPA believes
that Kentucky’s consideration of MACT
standards was reasonable.
In the future, any collateral emission
increases associated with a specific
MACT standard control will be
addressed during the actual
implementation and permitting of
sources. If for some reason the
maintenance of the Areas appear
compromised by any specific MACT
standard in the future, the permitting
and implementation process, as well as
the triggers and measures in the
contingency portion of the maintenance
plans, should prevent or resolve any
problem as expeditiously as practicable.
Comment 8. In further support of the
comment regarding use of projected
future emissions reductions, the
Commenters assert that Kentucky
appears to be relying upon reductions in
NOX emissions from the Clean Air
Interstate Rule (CAIR). The Commenters
state that because CAIR is a cap and
trade program, it is arbitrary to assume
that sources will reduce emissions in
every year between 2008 and 2020.
Response 8. CAIR was remanded to
EPA, (North Carolina v. EPA, 531 F.3d
896 modified on reh’g, 550 F.3d 1176
(D.C. Cir. 2008)), and the process of
developing a replacement rule is
ongoing. As a point of clarification,
neither CAIR nor the remand of CAIR
altered the requirements of the NOX SIP
Call,6 which requires states to make
significant, specific emissions
reductions. See 63 FR 57356 (October
27, 1998).
All four of the Kentucky Areas
attained the 1997 8-hour ozone NAAQS
by 2002, without any reliance on
reductions from CAIR, and before
requirements under CAIR were
implemented. Kentucky has
demonstrated that the Four Kentucky
Areas can maintain the 1997 8-hour
ozone NAAQS without these
requirements. Therefore, EPA believes
that the Commenters’ expressed
6 On October 27, 1998 (63 FR 57356), EPA issued
a NOX SIP Call requiring the District of Columbia
and 22 states to reduce emissions of NOX in order
to reduce the transport of ozone and ozone
precursors. In compliance with EPA’s NOX SIP Call,
Kentucky developed rules governing the control of
NOX emissions from Electric Generating Units
(EGUs), major non-EGU industrial boilers, major
cement kilns, and internal combustion engines.
EPA approved Kentucky’s rules as fulfilling Phase
I and Phase II of the NOX SIP Call on October 23,
2009 (74 FR 54755). Implementation of the NOX SIP
Call was phased with the Kentucky programs being
effective in 2002 and 2006 at the state level. Id; see
also 67 FR 17624 (April 11, 2002).
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concerns about Kentucky’s reliance on
NOX reductions from CAIR are
misplaced, and Kentucky’s
demonstrations of maintenance under
section 110(a)(1) do not depend upon
them.
Although Kentucky did not rely on
the remanded CAIR rule for either
attainment or maintenance of the 1997
8-hour ozone NAAQS, the NOX SIP Call
requirements provide additional
assurance of maintenance in the Four
Kentucky Areas. In addition, the antibacksliding provisions of 40 CFR
51.905(f) specifically provide that the
provisions of the NOX SIP Call,
including the statewide NOX emission
budgets, continue to apply after
revocation of the 1-hour ozone NAAQS.
For the maintenance plans that are the
subject of today’s actions, Kentucky
appropriately does not rely on the
remanded CAIR requirements.
Comment 9. Again, as support for the
contention that Kentucky considered
over-compliance in its maintenance
plans, the Commenters explain that
Kentucky included vehicle turnover in
its consideration of maintenance, but
state that there is no requirement for
vehicle turnover in the counties covered
by the maintenance plans. Thus, it is the
Commenters’ contention that there is no
justification for including this factor in
the projected future emissions.
Response 9. For the reasons described
below, EPA disagrees that there is no
justification for considering fleet
turnover in emissions forecasts. Fleet
turnover, the gradual, continuing
process of new vehicles certified to
tighter emissions standards replacing
older vehicles, is a historic fact that has
been central to estimating the benefits of
federal and state emission control
programs in SIPs and maintenance
plans since the earliest motor vehicle
emission controls were implemented.
Fleet turnover will occur in the future
as long as people continue to replace
older vehicles with newer ones, and
there is no reason to expect this historic
practice to change.
The emission impacts of fleet
turnover have been incorporated in
every EPA-approved emission model
including MOBILE6.2, the approved
model for estimating motor vehicle
emissions in SIPs and maintenance
plans at the time of this analysis.
Generally, the calculation of emissions
in MOBILE6.2 is based upon the
reasonable expectation that each year,
the model year composition of the local
motor vehicle fleet changes as new
vehicles are purchased and enter the
fleet and old vehicles are scrapped. This
results in a decrease in fleet average
NOx and VOC emissions each year
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because older model year vehicles
certified to less stringent emission
standards leave the fleet and are
replaced by newer vehicles certified to
more stringent standards. The phase-in
of new vehicle standards and the change
in the average emissions of the vehicle
fleet due to the replacement of older
vehicles with newer ones are included
in MOBILE6.2 for both past and future
years.
Specific inputs for MOBILE6.2 can
affect the rate of fleet turnover that the
model calculates in future years. EPA
has included language in the guidance
document ‘‘Technical Guidance on the
Use of MOBILE6.2 for Emission
Inventory Preparation’’ (dated August
2004) to ensure that states make
reasonable assumptions about the rate of
fleet turnover in the future. As
described in this guidance, projected
rates of fleet turnover in the future
should take into account historic fleet
turnover in the area. That guidance
states that it would not be reasonable for
a state to assume that the rate of new
vehicle purchases and fleet turnover in
the future is higher than historic rates.
However, EPA expects that states will
make the reasonable assumption that
residents will continue to purchase or
lease new vehicles to replace old ones,
at rates similar to historic rates, and that
the average emissions of the fleet will
decline as a result.
Comment 10. The Commenters
complain that the contingency measures
in the Kentucky maintenance plans are
not automatically effective upon a
triggering event. Specifically, the
Commenters contend that in order to
comply with the standards set out in the
CAA and in the Wegman Memorandum,
maintenance plans must require that a
violation of the NAAQS, or a 10 percent
increase in the emission inventory, or
another triggering event that EPA
develops, must result in automatically
effective contingency measures. The
Commenters appear concerned that the
contingency measures outlined by
Kentucky are ‘‘vague’’ and not
automatically effective upon a triggering
event. In support of the contention that
the CAA requires that the contingency
measures be in the SIP and
automatically effective upon a trigger
event, the Commenters cite two court
cases: Sierra Club v. EPA, 356 F.3d 296
(D.C. Cir. 2004) and Natural Resources
Defense Council (NRDC) v. EPA, 22 F.3d
1125, 1134 (D.C. Cir. 1994).
Response 10. The CAA sets no
specific requirements for section
110(a)(1) maintenance plans, not even
that they contain contingency measures.
EPA, in its implementing regulation,
provides simply that a section 110(a)(1)
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maintenance plan ‘‘must include
contingency measures.’’ EPA guidance
in the Wegman memorandum, p. 7,
states that contingency provisions
should be aimed at promptly correcting
violation of the NAAQS, and explains
that the SIP should contain an
enforceable commitment to adopt and
implement contingency measures in a
timely fashion once they are triggered.
Consistent with this guidance,
Kentucky’s 110(a)(1) maintenance plans
provide that in the event of a monitored
violation of the 8-hour ozone NAAQS,
Kentucky commits to adopt, within a
specific amount of time (i.e., nine
months), one or more of the 8 specific
contingency measures listed in the plan.
Kentucky’s maintenance plan commits
to implementing the contingency
measures within 18 months. The
Wegman Memorandum states ‘‘[t]he
schedule for adoption and
implementation should be as
expeditious as practicable, but no longer
than 24 months.’’ Kentucky’s 18-month
timeframe is consistent with the
Wegman Memorandum.
The Wegman Memorandum goes on
to explain that, in addition to the
minimum trigger upon violation of the
NAAQS, EPA recommends additional
triggers could be used such as
exceedance of the precursor emission
levels upon which maintenance is
based. This type of trigger is beneficial
because it occurs prior to a violation.
Kentucky has also included this type of
additional trigger in its 110(a)(1)
maintenance plans. If periodic
emissions inventory updates reveal
excessive or unanticipated growth
greater than 10 percent in ozone
precursor emissions, Kentucky has
committed to evaluating existing control
measures to see if any further emission
reduction measures should be
implemented at that time. By meeting
the minimum requirement of adopting
and implementing specific contingency
measures upon a violation of the
NAAQS and including additional
triggers, Kentucky has sufficiently
provided for contingency measures in
its maintenance planning for the 1997
8-hour ozone NAAQS in the Four
Kentucky Areas that are the subject of
this notice.
The CAA itself does not expressly
address contingency measures in
section 110(a)(1) maintenance plans,
much less require that any contingency
measures be automatically effective, and
the flexibility afforded to Kentucky
ensures that the correct measure can be
adopted in order to respond to the
particular air quality issues causing the
triggering event. While the triggering
event directs the state to launch the
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process to adopt and implement a
contingency measure, the state is also
given some flexibility to determine
which of the identified measures is best
suited to address the particular air
quality issue that must be corrected.
This is reasonable, desirable, and
consistent with how EPA and the states
have addressed section 175A
contingency measures in nonattainment
areas that have been redesignated to
attainment.
The Commenters’ contention that the
CAA requires something more than is
being required by EPA in the 110(a)(1)
maintenance plans at issue in today’s
action, finds no support in the statute
itself. The maintenance plans at issue in
this notice are 110(a)(1) maintenance
plans for areas in attainment with the
NAAQS at issue. Section 110(a)(1)
contains no express requirement for
maintenance plans for attainment areas
to contain contingency measures, much
less detail their content. Even where the
CAA does require maintenance plans to
have contingency measures—section
175A for nonattainment areas being
redesignated to attainment—the CAA
and its implementing regulations do not
require that these measures be
automatically effective upon a triggering
event. Thus, neither a section 110 or
175A maintenance plan for an area that
is attaining the NAAQS (attainment area
or a redesignated maintenance area) is
required to have fully adopted
contingency measures that will take
effect without further action by the state
in order for the maintenance plan to be
approved.
The Memorandum from John Calcagni
to Air Division Directors, Procedures for
Processing Requests to Redesignate
Areas to Attainment, September 4,
1992—hereafter referred to as ‘‘Calcagni
Memorandum,’’ and the Wegman
Memorandum, are consistent with the
applicable statutory and regulatory
requirements. The Calcagni
Memorandum states ‘‘[t]hese
contingency measures are distinguished
from those generally required for
nonattainment areas under section
172(c)(9) and those specifically required
for ozone and CO nonattainment areas
under sections 182(c)(9) and 187(a)(3),
respectively.’’ While contingency
measures that are required for
nonattainment areas under sections
172(c)(9) and section 182(c)(9) must be
already adopted so that they can be
effective upon a triggering event for a
nonattainment area that fails to meet its
reasonable further progress (RFP) or
attainment deadlines, this is not
required for section 110(a)(1) or 175A
maintenance plans. The Commenters do
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not provide any statutory or regulatory
citations for their positions.
Even for maintenance plans for
nonattainment areas that are being
redesignated to attainment, section
175A requires only that the state
include contingency measures, as EPA
deems necessary, to promptly correct
any violation of the NAAQS that occurs
after redesignation of the area. 42 U.S.C.
7505a(d) (Emphasis added.) EPA’s
interpretation that maintenance plan
contingency measures need not be fully
adopted has been followed since 1992.
The Sixth Circuit in Greenbaum v. EPA,
endorsed the Calcagni Memorandum’s
statements regarding contingency
measures for 175A maintenance plans.
Specifically, the Court stated that under
175A, EPA ‘‘has been granted broad
discretion by Congress in determining
what is ‘necessary to assure’ prompt
correction.’’ 370 F.3d at 540. Given the
latitude provided maintenance plan
contingency measures for
nonattainment areas being redesignated,
EPA’s treatment of section 110(a)(1)
maintenance plans for attainment areas
is eminently justified and reasonable.
In support of their contention that
contingency measures be automatically
effective, the Commenters cite to two
cases and not any statutory or regulatory
provisions. In the first, Sierra Club v.
EPA, 356 F.3d 296 (D.C. Cir. 2004), the
D.C. Circuit evaluated a conditional
approval for nonattainment area SIPs—
the case did not concern maintenance
plans for attainment areas and did not
address contingency measures for
attainment areas. In the second, NRDC
v. EPA, 22 F. 3d 1125 (D.C. Cir. 1994),
the Court was also evaluating a
conditional approval as well as various
EPA rules regarding, in part, vehicle
inspection and maintenance programs
promulgated pursuant to the 1990
amendments to the CAA. The pinpoint
citation provided by the Commenters
leads to a discussion on interim
milestones to satisfy the conditional
approval (under CAA section 110(k)(4)).
Id. at 1134.
With regard to the Commenters’
contention that the contingency
measures are ‘‘vague,’’ below is a
summary of the contingency measures
included in the maintenance plans. In
the event of a monitored violation of the
8-hour ozone NAAQS, Kentucky
commits to adopt, within nine months,
one or more of the following
contingency measures to re-attain the
NAAQS.
• Stage I Vapor Recovery;
• Stage II Vapor Recovery;
• Basic Vehicle Emissions Testing
Program;
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• Open burning ban during summer
ozone season;
• Restriction of certain roads or lanes
to, or construction of such roads or
lanes for use by, passenger buses or
high-occupancy vehicles;
• Trip-reduction ordinances;
• Employer based transportation
management plans, including
incentives;
• Programs to limit or restrict vehicle
use in downtown areas, or other areas
of emission concentration, particularly
during periods of peak use;
• Programs for new construction and
major reconstructions of paths or tracks
for use by pedestrians or by nonmotorized vehicles when economically
feasible and in the public interest.
Further, all regulatory programs will be
implemented within 18 months. While
the Commonwealth also reserves the
right to implement other contingency
measures if new control programs
should be developed and deemed more
advantageous for the Area, this list
provides sufficient information
regarding the types of contingency
measures that will be considered. As
explained above, Kentucky’s 110(a)(1)
maintenance plans for the Four
Kentucky Areas are consistent with
applicable requirements.
Comment 11. The Commenters assert
that EPA has not demonstrated that the
Greenup maintenance plan, without
contingency measures, ‘‘will not
interfere with attainment and reasonable
further progress in the other portion of
Greenup County’’ or in Boyd County,
Kentucky.
Response 11. The Commenters
provide no explanation of the basis for
their concern that Greenup County’s
maintenance plan might somehow
interfere with attainment in the other
portion of Greenup County or in Boyd
County, and thus EPA is uncertain of
the basis for the Commenters’
statements. Nonetheless, EPA reviews
below the relationship between Greenup
County and Boyd County with respect
to the 1-hour and 8-hour ozone
standards. With regard to the 1-hour
ozone NAAQS, in 1992, Boyd County
and a portion of Greenup County 7 were
7 As a point of clarification, Greenup County was
included in the 1-hour ozone designations as a
partial county, as part of the 1-hour ozone
nonattainment area for the Huntington-Ashland
Area. This Area was initially designated as
nonattainment and later as attainment for the 1hour NAAQS. Thus, the portion of Greenup County
affected was ultimately a 175A maintenance area
for the 1-hour ozone NAAQS. When the 8-hour
ozone designations were completed, all of Greenup
County was designated as attainment, as its own
attainment area—just the one county. It was not
included in what was later known as the 8-hour
ozone nonattainment area for the Huntington-
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designated nonattainment as the
Kentucky portion of the HuntingtonAshland 1-hour ozone Area. In 1995, the
Kentucky portion of the HuntingtonAshland Area was redesignated to
attainment for the 1-hour ozone
NAAQS, and under CAA section 175A,
EPA approved Kentucky’s 1-hour ozone
maintenance plan for the Area. In 2004,
during a national designations process,
EPA evaluated the Huntington-Ashland
Area for the 1997 8-hour ozone NAAQS.
EPA designated Boyd County
nonattainment for the 8-hour ozone
NAAQS. Further, EPA, and designated
attainment the portion of Greenup
County that was formerly part of the
Huntington-Ashland 1-hour ozone Area.
As part of that designations process,
EPA made the determination that the
portion of Greenup County that was in
the former 1-hour ozone area did not
contribute to violations of the 8-hour
ozone NAAQS in the HuntingtonAshland 1997 8-hour ozone
nonattainment Area (including Boyd
County). 69 FR 23858, 23906 (April 30,
2004). The portion of Greenup County
that was designated attainment for the
1-hour ozone NAAQS was never subject
to the 175A maintenance plan because
it was never designated nonattainment.
EPA has no information indicating that
Greenup County Area’s maintenance of
both the 1-hour and 8-hour NAAQS will
interfere with attainment and RFP of
Boyd County.
Moreover, based on monitoring data
for 2004–2006, EPA determined that the
1997 8-hour ozone nonattainment area
for Huntington-Ashland attained the
1997 8-hour ozone NAAQS, and in
2007, EPA redesignated the Area to
attainment. (72 FR 43172, August 3,
2007). EPA is not aware of any
subsequent 8-hour ozone violations in
Boyd County (as part of the 1997 8-hour
ozone maintenance area for HuntingtonAshland) which is subject to an
approved section 175A 1997 8-hour
ozone maintenance plan. There is no
evidence that any portion of Greenup
County has interfered with or will
interfere with 8-hour ozone attainment
in the Huntington-Ashland Area
(including Boyd County). Today’s final
approval of the Greenup County Area’s
section 110(a)(1) maintenance plan will
do nothing to increase emissions or
interfere with attainment in other areas.
Further, the Greenup County Area’s
110(a)(1) maintenance plan projects
2020 out-year emissions for Greenup
County are expected to decrease by
Ashland Area. As a result, Greenup County is
currently and has always been a 110(a)(1)
maintenance area for 1997 8-hour ozone NAAQS
purposes.
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twenty-six percent for VOCs and by
fifty-one percent for NOX, compared to
the base year 2002. The Greenup County
Area was attaining the 1997 8-hour
ozone NAAQS in 2002 based on
measured ambient air quality
monitoring data, and the emissions
inventory future years is shown to
remain below the 2002 baseline. Boyd
County, as part of the HuntingtonAshland Area, has now been
redesignated to attainment for the 1997
8-hour ozone NAAQS. There is no
indication that Greenup County is
interfering or will interfere with
continued maintenance in Boyd County.
EPA believes that the emissions
reductions expected to continue in
Greenup County establish that Greenup
County will not interfere with
attainment throughout the County or in
the Huntington-Ashland Area (Boyd
County). Thus, EPA disagrees with the
Commenters’ contentions regarding
Greenup County.
Comment 12. The Commenters
incorporated by reference comments
previously submitted to EPA regarding
the Edmonson County maintenance
plan by the Karst Environmental
Education and Protection, Inc. (KEEP).
Additionally, the Commenters state that
EPA must consider the KEEP comments.
The KEEP comments, which are
directed specifically to the Edmonson
County maintenance plan only,
expressed concerns about: whether
emissions inventories and projections
properly considered Mammoth Cave
National Park and the Nolin River Lake
area; highway emissions inventories and
projections not including unique traffic
generators (again identifying specific
areas); emissions inventories and
projections not including gasoline and
other fuel handling activities associated
with Nolin Lake and Mammoth Cave
National Park; non-highway emissions
inventories and projections not
considering watercraft at Nolin Lake;
points source emission inventories and
projections not appearing complete
(certain sources identified); and that the
contingency measures should be
implemented immediately or no later
than three months.
Response 12. On August 24, 2004,
Kentucky submitted an update to its
original maintenance plan for the 1-hour
ozone NAAQS for the Edmonson
County Area as required by section
175A(b) of the CAA. EPA published a
proposed and direct final rule on
December 17, 2004 (69 FR 75473), to
approve Kentucky’s updated
maintenance plan for the Edmonson
County Area. During the public
comment period on these rulemakings,
EPA received adverse comments from
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KEEP. In response to these comments,
EPA withdrew its direct final
rulemaking and Kentucky subsequently
withdrew its submitted update to its
1-hour ozone maintenance plan for
Edmonson County.
The KEEP comments related to
emissions inventories and projections
submitted in 2004 for the 1-hour ozone
maintenance plan and are not relevant
to the 110(a)(1) maintenance plan that
Kentucky submitted for the Edmonson
County Area for the 1997 8-hour ozone
NAAQS. For the development of the
110(a)(1) maintenance plan, Kentucky
was required to use the most up-to-date
information. Thus the data used to
develop the 110(a)(1) maintenance plan
in 2007 are not equivalent to the data
used in 2003 to develop the 175A
maintenance plan. The KEEP comments,
as a result, do not address the data in
the current 8-hour maintenance plan,
and thus do not apply to today’s action.
Nor are they ‘‘adverse’’ to the instant
action because they are not relevant to
this action.
The only issue that might even
conceivably be deemed to relate to
today’s action is KEEP’s comment
regarding the 18-month period for
implementation of the 1-hour
contingency measures. KEEP argued
that section 175A contingency measures
for nonattainment areas being
redesignated should be implemented in
no less than three months based upon
the fragile and unique terrestrial and
subterranean resources of Mammoth
Cave National Park. Response 10 above
discusses implementation timeframes
for contingency measures under
sections 175A and 110(a)(1). As noted
above, the CAA does not prescribe
contingency measures for attainment
area maintenance plans, and the EPA
regulation that requires them does not
specify any deadlines, much less a three
month deadline. EPA’s guidance in the
Wegman Memorandum is consistent
with longstanding EPA practice with
respect to implementation of
contingency measures. Moreover, the
State and EPA may at any time
determine that additional measures are
necessary to assure correction of a
violation; however, at this time, there is
no such violation and the proposed
contingency measures timeframe is
consistent with the applicable
requirements. EPA notes that the
Edmonson Area has consistently
attained the 1-hour ozone NAAQS since
1994 and has been attaining the 8-hour
ozone NAAQS since 2004. Thus, EPA
sees no reason to require more stringent
contingency measure deadlines than
those in the submitted maintenance
plan.
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Comment 13. The Commenters state
that EPA must include contingency
measures that are triggered based on
ambient monitoring and not just
emission inventories. The Commenters
reference other maintenance plans in
Kansas and Missouri; however, no
citations were provided. The
Commenters also state that the
requirements must be written into the
CFR at 52.920(e) in order for this to be
a clear requirement.
Response 13. The Commenters’
concerns are misplaced. The Wegman
Memorandum states that a section
110(a)(1) maintenance plan should,
‘‘include contingency provisions, as
necessary, to promptly correct any
violation of the NAAQS that occurs
(51.905(a)(3)(iii) and (4) (ii)).’’ Wegman
Memorandum at pg. 7. In the 110(a)(1)
maintenance plans, Kentucky in fact
commits to taking action based on both
ambient monitoring data and emission
inventory data. Thus, the Commenters
are incorrect in contending that
contingency measures are not triggered
by the results of ambient monitoring. In
the event that exceedances of the 1997
8-hour ozone NAAQS are measured in
any portion of the maintenance areas
(ambient monitoring data of greater than
0.084 ppm ozone), or if periodic
emission inventory updates reveal
excessive or unanticipated growth
greater than 10 percent in ozone
precursor emissions, Kentucky commits
to evaluate existing control measures to
see if any further emission reduction
measures should be implemented at that
time. In the event of a monitored
violation of the NAAQS, Kentucky
commits to adopting, within nine
months, one or more of a number of
measures listed in the maintenance plan
and states that all regulatory programs
will be implemented within 18 months.
The measures listed in the maintenance
plans include but are not limited to
such measures as Stage 1 Vapor
Recovery, Stage II Vapor Recovery, open
burning bans during ozone season, and
road restrictions. Kentucky also states
that it reserves the right to implement
other contingency measures if new
control programs should be developed
or deemed more advantageous. The
maintenance plans thus require
contingency measures to be triggered
upon either ambient monitoring or
changes in the emissions inventory
projections. The maintenance plans
being approved today will be referenced
in the appropriate provisions of 40 CFR
52.920.8 These provisions do not
8 The Commenters state that 40 CFR 52.920(e) is
the appropriate provision. This provision is for
EPA-approved Kentucky non-regulatory provisions
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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations
explicitly state all the requirements of
the plan, but rather, cite to the existence
of that plan and note, among other
information, the date of approval by
EPA. Copies of Kentucky’s plan can be
obtained at the EPA Region 4 Office or
at https://www.regulations.gov under the
docket number: ‘‘EPA–R04–OAR–2007–
1186.’’
Comment 14. The Commenters argue
that Kentucky must be required to
update the emission inventories and
that the maintenance plans should
include mandatory language requiring
Kentucky to prepare emission
inventories every three years using a
defined methodology. The Commenters
state that these requirements should
appear in 40 CFR 52.920(e).
Response 14. Section 110(a)(2)(F) of
the CAA provides that SIPs are to
require ‘‘as may be prescribed by the
Administrator * * * (ii) periodic
reports on the nature and amounts of
emissions and emissions-related data
from such sources.’’ Emission
inventories are important for the efforts
of state, local, and federal agencies to
attain and maintain the NAAQS for
criteria pollutants. Pursuant to its
authority under section 110 of the CAA,
EPA has long required SIPs to provide
for the submission, by states to EPA, of
emission inventories containing
information regarding the emissions of
criteria pollutants and their precursors.
EPA codified these requirements in 40
CFR part 51, subpart Q in 1979 and
amended them in 1987. The 1990
Amendments to the CAA revised many
of the provisions of the CAA related to
the attainment of the NAAQS and the
protection of visibility in mandatory
Class I Federal areas (certain national
parks and wilderness areas). These
revisions established new periodic
emission inventory requirements
applicable to certain areas that were
designated nonattainment for certain
pollutants.
The Commonwealth of Kentucky
stated that it would use the actual
emissions developed through its
submittal to EPA per the CERR. The
CERR was published in the Federal
Register on Monday, June 10, 2002 (67
FR 39602) (found in 40 CFR part 51,
subpart A). Emissions inventory
guidance for the preparation of these
inventories is located in the EPA
website (https://www.epa.gov/ttnchie1/
publications.html). The purpose of the
CERR is to simplify reporting, offer
options for data collection and
of the SIP. The Commenter does not explain why
reference in 52.920(e) is of particular importance.
The legal effect of the requirement is the same so
long as it is SIP-approved and referenced in 52.920.
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exchange, and unify reporting dates for
various categories of criteria pollutant
emission inventories. The rule applies
to state and local agencies and
consolidates the emission inventory
reporting requirements found in various
parts of the CAA. States are required to
prepare a comprehensive state-wide
inventory every three years. See 40 CFR
51.30. The first three-year inventory was
for the year 2002. The latest CERR
inventories were developed for 2005
and 2008 (which were used by
Kentucky as was discussed previously).
Due to the CERR and Kentucky’s
commitments in the maintenance plans,
there is no need for additional
mandatory language or commitments
requiring the preparation of emission
inventories every three years using a
defined methodology. Kentucky will be
updating its emission inventories every
three years, pursuant to the
methodology outlined in the CERR.
Comment 15. The Commenters assert
that the maintenance plans should
require a monitor in Scott County, in the
Lexington Area. The Commenters
contend that a monitor operated in Scott
County until 2005, and that in 2005 it
monitored violations of the 1997 8-hour
ozone NAAQS. The Commenters
questioned the rationale for removing
the Scott County monitor and stated that
40 CFR 52.920(e) should require that an
additional monitor be placed in Scott
County.
Response 15. EPA addresses this
comment in the context of today’s
approval of the maintenance plan for
the Lexington Area. The Commenters’
expressed concerns about the Scott
County monitor are without foundation.
First, contrary to the Commenters’
contention, at the time it ceased
operation, the Scott County monitor at
issue was not violating the 1997 8-hour
ozone NAAQS. Moreover, the monitor
was shut down because it no longer met
siting criteria requirements. Finally, the
monitor was an additional special
purpose monitor (SPM), that was
supplemental to the State’s monitoring
network, and therefore its continued
operation was not required to maintain
an adequate monitoring network. These
points are discussed in greater detail
below.
First, contrary to the Commenters’
contention, the Scott County monitoring
site was not violating, but in fact had
the lowest design value of the four sites
in the metropolitan statistical area
(MSA) at the time it ceased operation.
The 2002–2004 design value for the 8hour ozone NAAQS was 0.066 parts per
million, far below the 1997 8-hour
ozone NAAQS. Thus the Commenters
are in error when they assert that the
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20865
Scott monitor was violating the 8-hour
ozone NAAQS prior to the time it
ceased monitoring. The last time the
Scott Monitor registered a violation of
the 8-hour ozone standard was in 1996.
Second, the last siting inspection at
the Sadieville site in 2004 revealed that
the site no longer met the siting
requirements for ozone, as per 40 CFR
part 58, Appendices D and E. For
example, one applicable siting criteria is
that the monitor be set back a certain
amount from a tree or tree line to ensure
proper air flow. See, e.g., 40 CFR part
58, Appendix E. Monitors that fail to
meet applicable siting requirements are
not appropriate for use in determining
compliance with the NAAQS. Because it
was an optional SPM, and not a monitor
required for the network to be approved,
it was not moved to a new site, but
ceased operating at the end of the 2004
ozone season.
Third, for the Lexington-Fayette,
Kentucky MSA, the Commonwealth
operates two State and Local Air
Monitoring Stations (SLAMS) ozone
monitors: one in Lexington and one in
Nicholasville. From April 1993 until
October 2004, Kentucky operated an
ozone monitor in Sadieville, Scott
County. The Sadieville ozone air
monitoring station was located off KY
Hwy 32 at the Scott County #2 Fire
Station (AQS number 21–209–0001). It
was designated as a SPM. A SPM is one
that allows the capability of providing
monitoring for complaint studies,
modeling verification, and compliance
status for short-term studies. The
monitoring data may be reported to
EPA, provided that the monitor(s) and
station(s) meet the requirements of the
SLAMS network. The Sadieville site
represented population exposure on an
urban scale; its main objective was to
evaluate compliance with and/or
progress made towards meeting the
ozone NAAQS. Because Kentucky’s
SLAMS network already met all federal
requirements for siting and design, this
SPM in Sadieville reflected Kentucky’s
effort to exceed the EPA’s siting
requirements for ozone.
EPA has determined that Kentucky
currently meets the monitoring
requirements for ozone as required in 40
CFR part 58, Appendices A, C, D, E, and
G. The Kentucky SLAMS consist of a
network of monitoring stations whose
size and distribution are largely
determined by the monitoring
requirements for NAAQS comparison
and the needs of monitoring
organizations to meet their respective
SIP requirements. The SLAMS stations
must meet requirements that relate to
four major areas: Quality assurance,
monitoring methodology, sampling
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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations
interval, and siting of instruments/
instrument probes. The Areas affected
by today’s action include five monitors
in locations consistent with federal
requirements. Thus, at this time, there
does not appear to be any rationale for
placing a new monitor in Scott County.
Every year, Kentucky is required to
evaluate its current monitoring network
consistent with 40 CFR 58.10. This
process is subject to public notice and
comment. For today’s action, the
monitoring network meets applicable
requirements.
V. Final Action
Pursuant to section 110(a)(1) of the
CAA, EPA is taking final action to
approve as revisions to Kentucky’s SIP
the maintenance plans for the 1997 8hour ozone NAAQS for the Edmonson
County, Greenup County, Lexington and
Owensboro Areas, which were
submitted by Kentucky on May 27,
2008. These maintenance plans ensure
continued attainment of the 1997 8-hour
ozone NAAQS for these Areas through
the year 2020. After evaluating the
Commonwealth’s submittals and the
comments received on the proposed
rulemaking with respect to these plans,
EPA has determined that each of these
maintenance plans meets the applicable
requirements of the CAA and EPA
regulations, and is consistent with EPA
policy.
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VI. 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).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, these actions:
• Are not ‘‘significant regulatory
actions’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Do not impose an information
collection burden under the provisions
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of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.);
• Are 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.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are 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
• Do 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, these rules do 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
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Fmt 4700
Sfmt 4700
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 13, 2011. 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, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: April 6, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 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 et seq.
Subpart S—Kentucky
2. Section 52.920(e), is amended by
adding new entries for the Huntington—
Ashland 8-Hour Ozone Section 110(a)(1)
Maintenance Plan, Lexington 8-Hour
Ozone Section 110(a)(1) Maintenance
Plan, Edmonson County 8-Hour Ozone
Section 110(a)(1) Maintenance Plan, and
Owensboro 8-Hour Ozone Section
110(a)(1) Maintenance Plan to read as
follows:
■
§ 52.920
*
Identification of plan.
*
*
(e) * * *
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*
Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Rules and Regulations
20867
EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS
Name of non-regulatory
SIP provision
*
*
Huntington—Ashland 8Hour Ozone Section
110(a)(1) Maintenance
Plan.
Lexington 8-Hour Ozone
Section 110(a)(1) Maintenance Plan Section
110(a)(1).
Edmonson County 8-Hour
Ozone Section 110(a)(1)
Maintenance Plan.
Owensboro 8-Hour Ozone
Section 110(a)(1) Maintenance Plan.
Applicable geographic or
nonattainment area
State submittal date/
effective date
EPA approval date
*
A portion of Greenup
County.
*
May 27, 2008 ....................
*
*
4/14/11 [Insert citation of
publication].
*
For the 1997 8-hour ozone
NAAQS.
Fayette and Scott Counties.
May 27, 2008 ....................
4/14/11 [Insert citation of
publication].
For the 1997 8-hour ozone
NAAQS.
Edmonson County ............
May 27, 2008 ....................
4/14/11 [Insert citation of
publication].
For the 1997 8-hour ozone
NAAQS.
Daviess County and a portion of Hancock County.
May 27, 2008 ....................
4/14/11 [Insert citation of
publication].
For the 1997 8-hour ozone
NAAQS.
[FR Doc. 2011–9092 Filed 4–13–11; 8:45 am]
SUPPLEMENTARY INFORMATION:
BILLING CODE 6560–50–P
Status: The meeting will be open to
the public.
Purpose: The purpose of the
Negotiated Rulemaking Committee on
Designation of Medically Underserved
Populations and Health Professional
Shortage Areas (Committee) is to
establish criteria and a comprehensive
methodology for Designation of
Medically Underserved Populations and
Primary Care Health Professional
Shortage Areas, using a Negotiated
Rulemaking (NR) process. It is hoped
that use of the NR process will yield a
consensus among technical experts and
stakeholders on a new rule for
designation of medically underserved
populations and primary care health
professions shortage areas, which would
be published as an Interim Final Rule in
accordance with Section 5602 of the
Affordable Care Act, Public Law 111–
148.
Agenda: The meeting will be held on
Wednesday, May 18; Thursday, May 19;
and Friday, May 20. It will include a
discussion of various components of a
possible methodology for identifying
areas of shortage and underservice,
based on the recommendations of the
Committee in the previous meeting. The
Friday meeting will also include
development of the agenda for the next
meeting. Members of the public will
have the opportunity to provide
comments during the meeting on Friday
afternoon.
Requests from the public to make oral
comments or to provide written
comments to the Committee should be
sent to Nicole Patterson at the contact
address above at least 10 days prior to
the first day of the meeting, Wednesday,
May 18. The meetings will be open to
the public as indicated above, with
attendance limited to space available.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
42 CFR Part 5
Negotiated Rulemaking Committee on
Designation of Medically Underserved
Populations and Health Professional
Shortage Areas; Notice of Meeting
Health Resources and Services
Administration, HHS.
ACTION: Negotiated Rulemaking
Committee meeting.
AGENCY:
In accordance with section
10(a)(2) of the Federal Advisory
Committee Act (Pub. L. 92–463), notice
is hereby given of the following meeting
of the Negotiated Rulemaking
Committee on Designation of Medically
Underserved Populations and Health
Professional Shortage Areas.
DATES: Meetings will be held on May 18,
2011, 9:30 a.m. to 6 p.m.; May 19, 2011,
9 a.m. to 6 p.m.; and May 20, 2011,
9 a.m. to 3 p.m.
ADDRESSES: Meetings will be held at the
Legacy Hotel and Meeting Centre, 1775
Rockville Pike, Rockville, Maryland
20852, (301) 881–2300.
FOR FURTHER INFORMATION CONTACT: For
more information, please contact Nicole
Patterson, Office of Shortage
Designation, Bureau of Health
Professions, Health Resources and
Services Administration, Room 9A–18,
Parklawn Building, 5600 Fishers Lane,
Rockville, Maryland 20857, Telephone
(301) 443–9027, E-mail:
npatterson@hrsa.gov or visit https://
www.hrsa.gov/advisorycommittees/
shortage/.
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SUMMARY:
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17:30 Apr 13, 2011
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Individuals who plan to attend and
need special assistance, such as sign
language interpretation or other
reasonable accommodations, should
notify the contact person listed above at
least 10 days prior to the meeting.
Dated: April 8, 2011.
Reva Harris,
Acting Director, Division of Policy and
Information Coordination.
[FR Doc. 2011–9081 Filed 4–13–11; 8:45 am]
BILLING CODE 4165–15–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 393
[Docket No. FMCSA–2010–0177]
Parts and Accessories Necessary for
Safe Operation; Grant of Exemption for
Flatbed Carrier Safety Group
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
AGENCY:
The Federal Motor Carrier
Safety Administration (FMCSA) grants
an exemption from certain commodityspecific cargo securement rules
applicable to motor carriers transporting
metal coils. The Flatbed Carrier Safety
Group (FCSG) applied for an exemption
to allow motor carriers transporting
metal coils to secure them in a manner
not provided for in current regulations,
specifically to secure coils grouped in
rows with eyes crosswise and the coils
in contact with each other in the
longitudinal direction. FCSG requested
the exemption so all commercial motor
vehicle (CMV) operators will be able to
use FMCSA’s pre-January 1, 2004 cargo
SUMMARY:
E:\FR\FM\14APR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Rules and Regulations]
[Pages 20853-20867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9092]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2007-1186-201114; FRL-9295-9]
Approval and Promulgation of Air Quality Implementation Plans;
Kentucky; Approval of Section 110(a)(1) Maintenance Plans for the 1997
8-Hour Ozone Standards for the Edmonson County, KY; Greenup County
Portion of the Huntington-Ashland, WV-KY; Lexington-Fayette, KY; and
Owensboro, KY
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve revisions to the
Kentucky State Implementation Plan (SIP) that include maintenance plans
addressing the 1997 8-hour ozone national ambient air quality standards
(NAAQS or standards) for the following four Kentucky attainment areas:
Edmonson County (hereafter referred to as the ``Edmonson County
Area''); the portion of Greenup County that was previously a part of
the Huntington-Ashland, West Virginia-Kentucky 1-hour ozone maintenance
area (hereafter referred to as the ``Greenup County Area''); Fayette
and Scott Counties (hereafter referred to as the ``Lexington Area'');
and Hancock County and the portion of Daviess County that was
previously a part of the Owensboro 1-hour ozone maintenance area
(hereafter referred to as the ``Owensboro Area'')--collectively, these
[[Page 20854]]
areas will be referred to as the ``Four Kentucky Areas.'' The Four
Kentucky Areas were 1-hour ozone maintenance areas that were designated
as attainment areas for the 1997 8-hour ozone NAAQS. As attainment
areas that were previously 1-hour maintenance areas, Kentucky was
required to submit maintenance plans demonstrating how these areas
would maintain the 1997 8-hour ozone NAAQS. These maintenance plans
were submitted to EPA on May 27, 2008, as revisions to the Kentucky
SIP, by the Commonwealth of Kentucky (Commonwealth), through the
Kentucky Energy and Environment Cabinet, Division for Air Quality
(DAQ), and ensure the continued attainment of the 1997 8-hour ozone
NAAQS through the year 2020 for the Four Kentucky Areas. These
maintenance plans meet applicable statutory and regulatory requirements
and are consistent with EPA's guidance. EPA is approving the revisions
pursuant to the Clean Air Act (CAA or Act). This final rule also
responds to adverse comments made on EPA's previously published
proposed approvals of the maintenance plans for the Four Kentucky
Areas.
DATES: Effective Date: This rule will be effective May 16, 2011.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2007-1186. All documents in the
electronic docket are listed in the https://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 electronically in https://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: Jane Spann, 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. Jane Spann may be reached by
phone at (404) 562-9029 or by electronic mail address
spann.jane@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. EPA Guidance and CAA Requirements
III. This Action
IV. Comments and Responses
V. Final Action
VI. Statutory and Executive Order Review
I. Background
In accordance with the CAA, Edmonson County, Kentucky; Huntington-
Ashland, West Virginia-Kentucky; Lexington-Fayette, Kentucky; and
Owensboro, Kentucky were designated as nonattainment for the 1-hour
ozone NAAQS (effective January 6, 1992, 56 FR 56694).
On November 13, 1992, Kentucky submitted requests to redesignate
the Edmonson County, Lexington-Fayette, and Owensboro 1-hour
nonattainment Areas to attainment for the 1-hour ozone NAAQS.
Subsequently, on November 12, 1993, Kentucky submitted a request to
redesignate the Kentucky portion of the Huntington-Ashland Area to
attainment for the 1-hour ozone NAAQS. In addition to the redesignation
requests, Kentucky submitted the required ozone monitoring data and
maintenance plans to ensure that the redesignated Areas would remain in
attainment for the 1-hour ozone NAAQS for a period of 10 years after
redesignation, consistent with the CAA section 175A(a).
EPA approved Kentucky's maintenance plans and requests to
redesignate the Kentucky portion of the Huntington-Ashland Area (60 FR
33748; June 29, 1995); the Lexington-Fayette Area (60 FR 47089;
September 11, 1995); the Edmonson County Area (59 FR 55053; November 3,
1994); and the Owensboro Area (60 FR 7124; February 7, 1995) for the 1-
hour ozone NAAQS.
On April 30, 2004, EPA designated areas for the 1997 8-hour ozone
NAAQS (69 FR 23858), and published the final Phase I Implementation
Rule for the 1997 8-hour ozone NAAQS (69 FR 23951) (Phase I Rule).
Daviess, Edmonson, Fayette, Greenup,\1\ Hancock and Scott Counties
(including all portions that were previously designated nonattainment
for the 1-hour ozone NAAQS) were designated as attainment for the 1997
8-hour ozone NAAQS, effective June 15, 2004.
---------------------------------------------------------------------------
\1\ While the portion of Greenup County that was a part of the
1-hour ozone Huntington-Ashland, WV-KY Area was designated
attainment, Boyd County which was also a part of the 1-hour ozone
Huntington-Ashland, WV-KY Area was designated nonattainment for the
1997 8-hour ozone NAAQS, effective June 15, 2004. Boyd County was
subsequently redesignated to attainment for the 1997 8-hour ozone
standard and has a CAA section 175A maintenance plan in effect. (72
FR 43172, August 3, 2007).
---------------------------------------------------------------------------
II. EPA Guidance and CAA Requirements
As a consequence of their designations as attainment for both the
1-hour and 8-hour ozone standards, the Four Kentucky Areas (all 8-hour
ozone attainment areas) were required to submit 10-year maintenance
plans pursuant to section 110(a)(1) of the CAA and the Phase I Rule, 40
Code Federal Regulations (CFR) 51.905(a)(4). On May 20, 2005, EPA
issued guidance as to how a state might fulfill the section 110(a)(1)
maintenance plan obligation established by the CAA and the Phase I Rule
(Memorandum from Lydia N. Wegman to Air Division Directors, Maintenance
Plan Guidance Document for Certain 8-Hour Ozone Areas Under Section
110(a)(1) of Clean Air Act, May 20, 2005, hereafter referred to as
``Wegman Memorandum''). Neither section 110(a)(1) nor any other
provision of the CAA contains detail regarding the specific content of
maintenance plans for these types of areas. EPA's Phase I Rule, in 40
CFR 51.905(a)(4) provides that section 110(a)(1) maintenance plans must
include contingency measures.
On December 22, 2006, the United States Court of Appeals for the
District of Columbia Circuit (DC Circuit) issued an opinion that
vacated portions of EPA's Phase I Rule. See South Coast Air Quality
Management District (SCAQMD) v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On
June 8, 2007, in response to several petitions for rehearing, the DC
Circuit Court clarified that the Phase I Rule was vacated only with
regard to those parts of the Rule that had been successfully
challenged. Of particular relevance, the Court vacated those portions
of the Phase I Rule that provided for regulation of the 1997 8-hour
ozone nonattainment areas designated under Subpart 1 (of part D of the
CAA) in lieu of Subpart 2, among other portions of the Phase I Rule.
The Court's decisions do not alter any 8-hour ozone attainment area
requirements under the Phase I Rule for CAA section 110(a)(1)
maintenance plans. EPA is thus finalizing its approvals of Kentucky's
May 27, 2008, proposed SIP revisions as satisfying the section
110(a)(1) CAA requirements for plans that provide for implementation,
maintenance, and enforcement of the
[[Page 20855]]
1997 8-hour ozone NAAQS in the Four Kentucky Areas.
III. This Action
EPA is taking final action to approve SIP revisions incorporating
the 110(a)(1) maintenance plans for the 1997 8-hour ozone NAAQS for the
Four Kentucky Areas--Edmonson County, Greenup County, Lexington, and
Owensboro. On May 27, 2008, Kentucky submitted these maintenance plans
to ensure the continued attainment of the 1997 8-hour ozone NAAQS
through the year 2020. In addition to reviewing the maintenance plans,
EPA has reviewed the updated available air quality monitoring data for
the Four Kentucky Areas and has confirmed, that based on the available
data that these Areas continue to meet the 1997 8-hour ozone NAAQS. The
table below shows the 2007-2009 design values for these attainment
areas, based on complete, quality-assured and certified monitoring
data. The table below also shows the preliminary data from 2010 which
are consistent with continued attainment. The data are listed in EPA's
Air Quality System database as the preliminary design value report. EPA
does not anticipate any concerns regarding these data.
Table 1--1997 8-Hour Ozone NAAQS Design Value
----------------------------------------------------------------------------------------------------------------
Design value (2007-
Area 2009) parts per million Design value (2008-
(ppm) 2010) ppm
----------------------------------------------------------------------------------------------------------------
Edmonson County Area.......................................... 0.072 0.070
Greenup County Area........................................... 0.072 0.069
Lexington Area................................................ 0.077 0.069
Owensboro Area................................................ 0.075 0.071
----------------------------------------------------------------------------------------------------------------
In this final action, EPA is also responding to adverse comments
received, from the Sierra Club and Kentucky Environmental Foundation,
regarding EPA's proposed rulemakings to approve these revisions, 74 FR
12567, March 25, 2009 (Greenup County Area, Lexington Area and Edmonson
County Area); 75 FR 3183, January 20, 2010 (Owensboro Area); and 75 FR
16387, April 1, 2010 (Owensboro limited reopening of comment period).
EPA proposed approval of the maintenance plans for the Four Kentucky
Areas in two separate actions. This final rulemaking action is based on
EPA's full review of relevant information and consideration of the
comments received, and reflects EPA's conclusion, that these
maintenance plans comply with section 110 of the CAA and EPA's
implementing regulations. See 40 CFR 51.905(a)(4). EPA's analyses of
Kentucky's SIP revisions for the Edmonson County, Greenup County, and
Lexington Areas are described in detail in proposed and direct final
rules published March 25, 2009 (74 FR 12774 and 74 FR 12567,
respectively). Although EPA's direct final rulemaking was withdrawn on
May 5, 2009 (74 FR 20601), due to the adverse comments received, EPA's
proposed rulemaking remained in place. EPA's analysis for Kentucky's
SIP revision for the Owensboro Area is described in detail in a
proposed rule published on January 20, 2010 (75 FR 3183). Today's
action responds to adverse comments received on EPA's March 25, 2009,
and January 20, 2010, rulemakings, and finalizes those rulemakings.
EPA's action approving the maintenance plan for each area is separate
and independent of its approval of the plans for the other areas.
IV. Comments and Responses
EPA received one set of adverse comments from the Sierra Club and
the Kentucky Environmental Foundation (hereafter referred to as ``the
Commenters''). These comments address EPA's March 25, 2009, proposed
and direct final rules to approve Kentucky's 110(a)(1) maintenance
plans for the Edmonson County, Greenup County, and Lexington Areas.
This same set of comments was submitted by the Commenters for EPA's
January 20, 2010, proposed rule to approve Kentucky's 110(a)(1)
maintenance plan for the Owensboro Area. Today's rulemaking takes final
action on the maintenance plans for all Four Kentucky Areas. The
following section of this notice summarizes the adverse comments
received, and sets forth EPA's responses to the comments. (The complete
comments are available in the docket for this rulemaking.)
Comment 1. The Commenters claim that EPA's proposed and direct
final rules to approve Kentucky's 110(a)(1) maintenance plans for the
Four Kentucky Areas ``run contrary to Administrator's Jackson's promise
that the U.S. Environmental Protection Agency decisions would
henceforth be based on three guiding principles: transparency; use of
sound science; and respect for rule of law.'' The Commenters state that
``[i]ssuing a direct final rule in which the actual rules are not
knowable by reading the Federal Register notice, or for that matter,
the administrative record, is not a transparent process.'' They further
complain that EPA's proposal ignored the science of climate change and
contravened statutory language.
Response 1. EPA disagrees with the Commenters' characterization of
the content of the Federal Register notice. The Commenters' contention
that because the complete text of the SIP revisions is not included in
the Federal Register notice, EPA has failed to adhere to certain
principles espoused by EPA Administrator Jackson is simply unsupported.
EPA's rulemaking here has fulfilled the goals of transparency, sound
science, and respect for the law. With regard to transparency, neither
the CAA nor the Administrative Procedure Act mandates that the Federal
Register notice of proposed rulemaking, or final rulemaking action,
include the complete text of the proposed SIP revisions. EPA's notice
of proposed rulemaking satisfied the notice requirements by providing
citations to the rules at issue, offering the SIP revisions for public
review, and describing the subjects and issues involved in the SIP
revisions. Because publication in the Federal Register is costly and
resource intensive, EPA makes every effort to provide key information
in proposal notices while at the same time using Agency resources
efficiently. EPA drafts rulemaking notices to enable public
understanding of the subjects and issues at hand. All documents related
to this rulemaking were available at https://www.regulations.gov under
the docket number EPA-R04-OAR-2007-1186, during the comment period for
the proposed rulemaking actions. For a member of the public wishing to
review the complete text of the SIP revisions, the notice of proposed
rulemaking included instructions for obtaining access to the complete
SIP revision. In
[[Page 20856]]
addition, the public could also contact the EPA representative
designated in the notice to obtain further information or answers to
questions. Thus, the Commenters' contention that, because the complete
text of the SIP revision was not included in the Federal Register
notice, EPA failed to adhere to EPA Administrator Jackson's three
principles is simply unsupported.
EPA also rejects the Commenters' assertion that the rulemaking
violates any of the three principles that have been espoused by EPA
Administrator Jackson. EPA's adherence to Administrator Jackson's three
principles (transparency, use of sound science, and respect for rule of
law) is clearly reflected in the detailed information and explanations
set forth in the proposals, direct final actions, and this final
action, including the substantive responses to comments. As was
discussed earlier in this notice, and is also discussed later in this
response to comments section, EPA's approvals of the maintenance plans
are supported by the CAA, its implementing regulations, and applicable
guidance.
Comment 2. The Commenters assert that Kentucky DAQ has indicated
that Greenup County, in the Huntington-Ashland Area, Jessamine County
in the Lexington Area, and Edmonson County are violating the 2008 8-
hour ozone NAAQS. Therefore, the Commenters state, that the public
interest mandates that EPA quickly act to ensure that at the very
least, the 1997 8-hour ozone NAAQS is maintained.
Response 2. The present rulemaking action addresses solely the
maintenance of the 1997 8-hour ozone NAAQS for the Edmonson County,
Greenup County, Lexington, and Owensboro Areas. EPA is approving,
pursuant to CAA section 110(a), Kentucky's plans to assure continued
maintenance of the 1997 8-hour ozone NAAQS in the Four Kentucky Areas.
Attainment or maintenance of any subsequently adopted ozone NAAQS is
not relevant to this rulemaking action, and therefore the issue raised
by the Commenters is outside the scope of this rulemaking.
The 2008 8-hour ozone NAAQS, promulgated on March 12, 2008, is
irrelevant to this rulemaking. EPA is currently reconsidering the 2008
8-hour ozone NAAQS, and has not yet designated areas for any subsequent
NAAQS. Actions that EPA may take with regard to the 2008 (or a
reconsidered) ozone NAAQS are separate from and independent of the
actions now being taken to approve the 110(a)(1) maintenance plans for
the Four Kentucky Areas in this rulemaking.
Comment 3. The Commenters assert that the maintenance plans do not
ensure maintenance of the 1997 8-hour ozone NAAQS because there is no
requirement that major stationary sources demonstrate that they do not
cause or contribute to new violations of the 1997 8-hour ozone NAAQS.
The basis for this assertion appears to be the Commenters' view that
Kentucky's Prevention of Significant Deterioration (PSD) program does
not require new or modified sources that trigger major PSD review due
to an increase in emissions of nitrogen oxides (NOX) to
demonstrate that they will not cause or contribute to a violation of
the ozone NAAQS. The Commenters point to a specific facility and cite
to a portion of the PSD application for that facility where volatile
organic compounds (VOCs) are considered for the ozone analysis, but not
NOX.
Response 3. On September 15, 2009, the Kentucky DAQ filed an
emergency rule to immediately address the issue of NOX as a
precursor for ozone for PSD purposes (which EPA required as part of a
November 29, 2005, rulemaking for ozone implementation--70 FR 71612).
Kentucky's emergency rule provides explicit requirements for major new
sources and major modifications of existing sources of NOX
to demonstrate that they will not cause or contribute to a violation of
the ozone NAAQS. The emergency rule became effective immediately in
Kentucky and was subsequently submitted to EPA for approval as a SIP
revision. On April 1, 2010, EPA proposed approval of Kentucky's rule to
address NOX as a precursor to ozone for PSD (75 FR 16388,
April 1, 2010). EPA received adverse comments from the Sierra Club.\2\
On September 15, 2010 (75 FR 55988), EPA issued a final action
responding to the adverse comments and approving the Commonwealth's
rule to address NOX as a precursor to ozone for PSD as a
revision to the Kentucky SIP. EPA thus believes that the concerns
voiced by the Commenters in this rulemaking about alleged deficiencies
in Kentucky's PSD program and the regulation of NOX as a
precursor to ozone have been satisfactorily addressed and resolved.
---------------------------------------------------------------------------
\2\ The Commenters allege that East Kentucky Power Cooperative
(EKPC) is ``taking advantage'' of the SIP not including
NOX as a precursor for ozone for a proposed J.K. Smith
power plant. Comments at pg. 3. This issue, among others, is part of
a lawsuit filed by Sierra Club against EPA which is now pending
before the DC Circuit Court of Appeals. Notably, in briefs filed by
the United States in that action, it was explained that EKPC
announced its intentions to cancel plans for the Smith facility and
the permit at issue in the comments was subsequently withdrawn (the
withdrawal document is included in the docket for today's
rulemaking). Because Kentucky's SIP now includes NOX as a
precursor for ozone, the Commenters' concern has been addressed.
---------------------------------------------------------------------------
Comment 4. The Commenters contend that the maintenance plans are
inadequate because there is no consideration of the impacts that
climate change will have on ozone levels. The comment makes reference
to several publications, provides a discussion on the impact of weather
on climate change and ozone, and concludes that failure to consider
this important aspect of the problem would lead to an arbitrary result.
The Commenters request that EPA evaluate the maintenance plans in light
of the ``increasing danger climate change will cause from ozone.''
Response 4. With regard to the comment that Kentucky's analysis
improperly omits consideration of the affect of climate change on
ambient ozone levels, EPA agrees that climate change is a serious
environmental issue; however, EPA does not agree that the maintenance
plans at issue in today's action cannot be approved without the climate
change analysis outlined by the Commenters. One of the reports cited to
by the Commenters (April 2009 ``Assessment of the Impacts of Global
Change on Regional U.S. Air Quality: A synthesis of climate change
impacts on ground-level ozone,'' page xxiv) concludes that, ``[t]hese
studies suggest that EPA's Office of Air Quality Planning and Standards
should begin to consider climate change, for example, in the next
update of EPA's ozone modeling guidance, especially for planning
horizons in 2020 and beyond.'' Although the EPA report cited in the
comment indicates that climate change increases ozone concentrations in
``substantial regions of the country,'' the report also states that
there are ``pronounced differences in the broad spatial patterns of
change'' among the various modeling groups. While ozone concentrations
may be affected as early as the 2020s (already after the date--2014--
required to be addressed by these section 110(a) maintenance plans),
most of the modeling groups did not simulate ozone concentration
changes prior to the 2050s. Furthermore, the report itself states that
``modeling uncertainties persist, and further research is needed.''
More specifically, the report further states that ``[c]urrent modeling
uncertainties lead to disagreements about the spatial patterns of
future changes in meteorological variables and, hence, the specific
regional distributions of future ozone changes across the United
States.'' Several of the projected models, in fact, provide conflicting
projections for the area in
[[Page 20857]]
which Kentucky is located (see e.g., Fig. 3-1of the above mentioned EPA
report). The report concludes ``[t]hese studies suggest that EPA's
Office of Air Quality Planning and Standards should begin to consider
climate change, for example, in the next update of EPA's ozone modeling
guidance, especially for planning horizons in 2020 and beyond.''
(Emphasis added.) Thus, the report acknowledges that modeling guidance
is not yet available for the type of area-specific analysis of effects
of climate change on ozone concentrations required for SIP planning.
EPA therefore believes it is premature to require a precise
mathematical accounting in the SIP process for the effect of higher
ambient temperatures due to climate change on ozone concentrations. EPA
stands ready to reevaluate this position when the state of science and
confidence in projection improve. Given the above, however, at this
time, EPA cannot say Kentucky was in error when it did not model the
potential impact of climate change on ozone in the Greenup County,
Edmonson County, Lexington and Owensboro Areas as it developed
maintenance plans for those areas.
Comment 5. The Commenters contend that Kentucky's maintenance plans
ignore the possibility of changes in weather and emissions outside the
covered counties. The Commenters also contend that the 2002 emissions
inventory are not based on any actual emissions data gathered with
continuous emissions monitors or verified with actual emissions from
2005 and 2008. Thus, the Commenters conclude that EPA's approval is
arbitrary because the emissions forecasts are flawed. The Commenters
claim that there are several reasons for the flaws, including alleged
failures to properly consider the role of ozone and ozone precursor
transport and of weather.
Response 5. Under 40 CFR 51.905(a)(4) section 110(a)(1),
maintenance plans, like the one at issue here, must demonstrate
maintenance of the 1997 8-hour NAAQS through 2014. Kentucky has
voluntarily extended the coverage of its maintenance plans for the Four
Kentucky Areas for an additional six years beyond the required
maintenance period (through 2020). EPA has reviewed these plans and
determined that they satisfy applicable requirements. The
demonstrations are based upon actual emissions inventories, and
projected emissions through 2020. These projections take into
consideration population, state, local and federal emission controls,
and other relevant factors. Unlike maintenance plans for nonattainment
areas that are redesignated to attainment, for which section 175A of
the CAA specifies express requirements, section 110(a)(1) maintenance
plans for areas designated attainment are not subject to specific
statutory maintenance plan requirements. In accordance with EPA
guidance, however, Kentucky did undertake an analysis, summarized as
follows, for certain emissions groups such as stationary sources, area
sources and some mobile sources. Response 5, below, contains additional
information responsive to Comment 4.
Utilizing Standard Industrial Codes (SIC), all point source
emissions were projected based on growth factors calculated using
Bureau of Economic Analysis (BEA) projection data for employment, as
suggested by EPA and utilized for previous point source projections in
similar contexts. The point source data provided SIC codes used to
determine a short title description that matched the corresponding
description found in the BEA data. The application of growth factors
for each projection was then used for point sources. Appendix E to
Kentucky's May 27, 2008, SIP revisions provide information on how point
source projections were determined.
Area sources can be defined as those sources that are generally too
small and/or too numerous to be handled individually in the point
source inventory. Area source emissions were estimated by multiplying
an emission factor by a known indicator of collective activity such as
number of employees or population. For area source emission
projections, population growth factors for each chosen year were
calculated using an exponential formula in the EXCEL software. The
application of these growth factors for each projection was then used
for area sources. Information used to calculate growth factors,
including population information used to project area sources, was
provided by the University of Louisville Urban Data Center and can be
found in Appendix F of Kentucky's May 27, 2008, SIP revisions.
The non-highway mobile category is broken down into three groups
that include two- and four-cycle gasoline engines and diesel engines
(other non-highway engines), railroad locomotives, and aircraft.
Emissions are estimated by multiplying the base year inventory by a
known indicator of collective activity such as fuel consumed or
landing/takeoff operations. For locomotive and aircraft emission
projections, population growth factors for each chosen year were
calculated using the before mentioned formula. The application of these
growth factors for each projection was then used for each of these non-
highway categories. For other non-highway categories (e.g., industrial
equipment, tractors, leaf blowers), EPA's nonroad model was used to
determine the future year projections. Nonroad model and non-highway
projection information can be found in Appendix G of Kentucky's May 27,
2008, SIP revisions. Updated minimum and maximum summer temperatures
and ambient temperatures were utilized for input into the nonroad
model. EPA Volume IV mobile source guidance was followed in determining
the updated temperature data. Please see Appendix C of Kentucky's May
27, 2008, SIP revisions for specific temperature documentation.
The use of emissions inventories and emissions forecasts has long
been an accepted method for evaluating maintenance of the NAAQS under
section 175A for nonattainment areas and EPA's guidance advises its use
for purposes of maintenance plans under CAA section 110(a)(1). The
Courts have agreed with EPA's longstanding view that a maintenance
demonstration for a nonattainment area, and a fortiori an attainment
area, need not be based on modeling. Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also
66 FR 53094, 53099-53100 (October 19, 2001); 68 FR 25430-25431 (May 12,
2003).
In its guidance issued May 20, 2005, EPA explained that, ``[t]he
typical method that areas have used in the past to demonstrate that an
area will maintain the 1-hour standard has been to identify the level
of ozone precursor emissions in the area which is sufficient to attain
the NAAQS and to show that future emissions of ozone precursors will
not exceed the attainment levels.'' Wegman Memorandum at pg. 4. The
inventory and projections Kentucky provided in the maintenance plans at
issue here use this method to demonstrate that the Areas will maintain
the 8-hour ozone standards. Complete, quality-assured air quality
monitoring data through the year 2009 for all of these Areas showed
maintenance of the 1997 8-hour ozone NAAQS, and data available for 2010
indicate continued maintenance. Maintenance is demonstrated by showing
that during the maintenance period the level of precursor emissions
remains at or below the attainment level. Variations in weather are
accounted for by the 3-year averaging required for finding of
attainment (see e.g., the 2004 attainment designation). The requirement
that there be three years of quality-assured monitoring data to
demonstrate attainment is the
[[Page 20858]]
established mechanism by which EPA takes meteorological variability
into account for purposes of determining attainment and maintenance.
These issues have been addressed multiple times in a variety of EPA
rulemakings and court decisions. Today's actions are consistent with
EPA's longstanding interpretation of the maintenance plan requirements
of the CAA. See e.g., 69 FR 21719 (April 22, 2004) (redesignation of
the San Francisco area); 66 FR 53094, 53099 (October 19, 2001)
(redesignation of the Pittsburgh-Beaver area); 68 FR 25418, 25430 (May
12, 2003) (redesignation of the St. Louis area); 40 CFR 50.9 and
Appendix H (method for determining attainment of 1-hour standard;
Appendix H states that three years of data is required); Appendix I
(method for 8-hour standard; Appendix I contain similar statement);
Sierra Club v. EPA, 375 F.3d 537, 539-543 (7th Cir. 2004) (discussing
the modeling required for maintenance plans). Similarly, the
Commenters' concerns about potential modifications of sources or new
sources that may affect ambient levels are addressed by the New Source
Review (NSR) and PSD programs, as well as by the NOx SIP call
requirements and other programs designed to regulate pollutants both
inside and outside the covered counties. As a result, and contrary to
the Commenters' contention, EPA's review of the maintenance
demonstrations considered the role of emissions from outside the area
in maintenance of the standard in the Four Kentucky Areas. EPA took
into account the relevant federal and state requirements that will help
ensure that emissions from outside the area will not interfere with
continued maintenance in the area. These include, among others, the NOx
SIP Call, NSR/PSD requirements, and other regulations that control
emissions from outside the Four Kentucky Areas. (See also Response 8,
below.)
The inventory and projections Kentucky provided in the maintenance
plans use this method to demonstrate the Four Kentucky Areas will
continue to maintain the 1997 8-hour ozone NAAQS. The inventory and
emissions analyses performed by Kentucky were conservative, and
reviewed by EPA, to ensure that they reasonably establish maintenance
of the NAAQS pursuant to section 110(a)(1). EPA's review of Kentucky
initial attainment inventories and inventory projections of future
maintenance inventories confirms that maintenance will continue through
the requisite period. Moreover, as is explained further below, the
contingency measures portion of the maintenance plan provides a
backstop for maintenance, functioning to correct a violation if,
despite the projections, one should occur.
With regard to the analyses performed by Kentucky, the emissions
inventory includes four components: Point, area, highway mobile and
non-highway mobile sources. The Four Kentucky Areas were designated
attainment for the 1997 8-hour ozone NAAQS in 2004 using 2001-2003
data. They had an option to choose one of the three attaining years to
use as a base year for emission inventory purposes. For these SIP
revisions, Kentucky chose to use 2002, an attainment year (for both the
8-hour and 1-hour ozone NAAQS), as the year for developing a new
comprehensive ozone precursor emissions inventory from which projected
emissions could be developed for 2005, 2008, 2011, 2014, 2017, and
2020. Maintenance is demonstrated by comparing the attainment year
emissions to the emissions in the years listed above. The following is
a summary of the emission projection methodology that was used to
forecast emissions over the maintenance period; the docket includes a
more detailed description of this methodology.
Point sources are defined as stationary sources that emit 10 or
more tons per year (tpy) of VOC or 100 tpy or more of NOx or carbon
monoxide (CO). Annual point source emissions data were used.\3\ Point
source information is collected by Kentucky from a number of sources
(including permitting information) and point source information was
provided for utilizing SIC (Response 4, above, discusses the various
sources of emissions information used by Kentucky). See also Appendix E
of Kentucky SIP Revisions (specifically discussion regarding point
source projections). Point source emission projections were based on
growth factors calculated using BEA projection data for employment. The
point source data provided SIC codes used to determine a title
description that matched the corresponding description found in the BEA
data. The application of growth factors for each projection was then
used for point sources.
---------------------------------------------------------------------------
\3\ Actual emissions were used for base year analyses.
Projections were used for future year inventories which, at the
time, were for 2005 and 2008. Since then, Kentucky has used the 2005
and 2008 actual inventories that were submitted to EPA per their
Consolidated Emissions Reporting Rule (CERR) requirement for the
development of the EPA National Emission Inventory (NEI) in order to
compare to the previously submitted projected emissions in the
maintenance plan submissions.
---------------------------------------------------------------------------
As mentioned above, area sources are those that are generally too
small and/or too numerous to be handled individually in the point
source inventory. The University of Louisville Urban Data Center
provided information used to calculate growth factors, including
population information used to project emissions from area sources. Two
and four-cycle gasoline engines and diesel engines (non-highway
engines), railroad locomotives and aircraft make up the non-highway
mobile category. Emissions were estimated by multiplying the base year
inventory by a known indictor of collective activity such as fuel
consumed or landing/takeoff operations. For locomotive aircraft
emission projections, population growth factors for each chosen year
were calculated. For other non-highway categories such as industrial
equipment and tractors, EPA's nonroad model was used to determine
future year projections.
Daily Vehicle Miles Traveled (DVMT) and speeds for 2002 and the
projection years were obtained from the Kentucky Transportation Cabinet
and used to calculate highway mobile source emissions. EPA's MOBILE6.2
model was used to derive appropriate projection year emission factors
that were multiplied by the corresponding DVMT to determine the
projected highway mobile source emissions. The 1990 mobile emissions
were recalculated using the updated MOBILE6.2 emissions model in order
to standardize the comparison of the 1990 numbers with the 2002 and
2020 mobile emissions developed using this model. EPA agrees with the
methodology used to develop the 2005 and 2008 on-road emissions as
projected from the 2002 actual emissions and submitted in the SIP
revisions. The projection methodology used to develop future year on-
road mobile emissions found in the SIP revisions, combined with the
fact that later determined actual emissions were considerably lower
than already projected emissions, provides a strong basis for approval
of these maintenance plans.
With respect to the Commenters' contention that attainment
inventories were not based on actual emissions, in fact the 2002
emission inventories for the Greenup County, Owensboro, and Lexington
Areas were based on actual point source emissions. There are no point
sources in the Edmonson Area. (See page 2.1 of Appendix C of each
Area's 110(a)(1) maintenance plan submittal.) At the time of the
initial submission of these 110(a)(1) maintenance plans in 2008, the
actual emissions for some source categories for 2005 and 2008 were not
required to be submitted. The Consolidated Emissions
[[Page 20859]]
Reporting Rule (CERR) \4\ (40 CFR part 51, subpart A) requires states
to submit to EPA an emissions inventory for all source categories every
three years and at the time the SIP revisions were due, only the 2002
emissions were available for states to use. See 40 CFR 51.30. Not every
source is subject to continuous emissions monitoring, so the
information on actual emissions may vary between source categories.
---------------------------------------------------------------------------
\4\ The CERR is discussed in greater detail in Response 14.
---------------------------------------------------------------------------
Kentucky has since reviewed the data and compared the actual
emissions for 2005 and 2008 with the projected emissions for 2005 and
2008 which were contained in the maintenance plan submittals. This
analysis is available in the docket for this final rulemaking. EPA
reviewed Kentucky's analysis and found it reliable and compelling. The
comparisons revealed that the emissions projected in Kentucky's
maintenance plans for the Four Kentucky Areas were higher than the
actual emissions by an average of 19 percent for VOC and 11 percent for
NOx for 2005; they were higher by an average of 26 percent for VOC and
47 percent for NOx for 2008. Kentucky's maintenance plans demonstrated
that, even using projections of emissions that were greater than those
that actually occurred in these years, those projections remained below
the attainment base-year inventories. Of course, the fact that the
actual emissions that occurred in these Areas were substantially less
than those that were projected provides further demonstration of
continued maintenance. Thus, actual emissions data during the
maintenance period have proven that Kentucky's projected emissions were
very conservative, and confirm EPA's view that the plans provide
adequate assurance of maintenance during the requisite period. In the
future, EPA anticipates even further reductions of these ozone
precursors. This information supports the position that Kentucky's
emissions projections provided with the 110(a)(1) maintenance plans
were conservative.
In addition to the assurance provided by the information above,
which demonstrates the conservative nature of the emissions forecasts
(which were supported by actual emissions data as explained in the
previous paragraph), the contingency measures portion of maintenance
plans serves as a backstop in the event that any of these Areas
requires supplemental measures to maintain air quality. These
contingency measures help to ensure that the Areas continue to maintain
the NAAQS of concern and can quickly correct a violation should one
occur. Kentucky's maintenance plans contain two types of such
contingency measures for each of the Four Kentucky Areas. In the event
that exceedances (as contrasted with actual violations) of the 8-hour
ozone NAAQS are monitored in any portion of the maintenance area, or if
periodic emission inventory updates reveal excessive or unanticipated
growth greater than 10 percent in ozone precursor emissions, Kentucky
will evaluate existing control measures to see if additional control
measures should be implemented at that time. If a monitored violation
occurs, Kentucky has committed to a contingency measure schedule where
one or more contingency measures will be adopted within nine months and
implemented within 18 months to bring the area back into attainment.
For the reasons discussed above, the Commenters have failed to
identify a deficiency in the 110(a)(1) maintenance plans that warrants
any action other than approval.
Comment 6. The Commenters state that the maintenance plans rely
both on assuming that measures will be implemented in the future to
decrease emissions and assuming that Kentucky will implement
contingency measures if the maintenance plans do not achieve their
objectives. Specifically, the Commenters argue that Kentucky used a
Reid Vapor Pressure (RVP) in gasoline of 8.6 pounds per square inch
(psi) in developing future emission levels even though an RVP of only
9.0 psi is legally required. The Commenters believe that the
maintenance demonstration should be based on legal requirements rather
than assumptions of over-compliance.
Response 6. The forecasting of emissions in a maintenance plan
involves the use of reasonable, scientifically-based premises that form
the basis for expectations of future emissions, the maintenance
projections, and contingency measure requirements. It is not necessary
here for EPA to accept or reject the Commenters' contentions regarding
historically-based over-compliance with legal requirements. Even if EPA
assumes, as the Commenters insist, that EPA evaluates maintenance using
the less stringent RVP level of 9.0 psi, the Four Kentucky Areas all
demonstrate continued maintenance. First, the Commenters' concern with
the stringency of RVP levels does not pertain to the Greenup County
Area, since Kentucky modeled only 9.0 psi for RVP for this Area, and
did not assume a lower RVP. Thus, the Commenters' assertion regarding
RVP levels more stringent than 9.0 psi applies only to the 110(a)(1)
maintenance plans for the Edmonson County, Lexington and Owensboro
Areas. For these Areas, EPA has received and evaluated additional
information that responds to the Commenters' concern. Kentucky has
demonstrated that the Edmonson County, Lexington and Owensboro Areas
are projected to demonstrate continued maintenance of the 1997 8-hour
ozone NAAQS with fuel modeled at either 9.0 psi (the statutory level)
or at 8.6 psi (the level indicated by historical surveys that these
Areas typically receive). This provides a modeled analysis showing a
comparison of VOC and NOx emissions using both the 8.6 and 9.0 psi RVP
gasoline. Table 2 below shows the difference in emissions for the
Edmonson County, Lexington and Owensboro Areas at RVP levels model at
both 8.6 psi and 9.0 psi.
Table 2--Edmonson County, Lexington and Owensboro Areas Highway Mobile Source Emissions
[Tons per day (tpd)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.6 psi 9.0 psi Difference between 8.6 psi &
---------------------------------------------------------------- 9.0 psi
County -------------------------------
VOC NOX VOC NOX VOC NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
2002:
Edmonson............................................ 0.55 0.96 0.56 0.97 0.01 0.01
Greenup............................................. N/A N/A 1.09 1.56 N/A N/A
Fayette............................................. 14.14 23.43 14.66 23.45 0.52 0.02
Scott............................................... 2.95 5.71 3.05 5.71 0.1 0
[[Page 20860]]
Hancock............................................. 0.1 0.18 0.11 0.18 0.01 0
Daviess............................................. 3.98 5.97 4.12 5.97 0.14 0
2005:
Edmonson............................................ 0.42 0.79 0.43 0.79 0.01 0
Greenup............................................. N/A N/A 0.87 1.33 N/A N/A
Fayette............................................. 10.24 18.14 10.64 18.16 0.4 0.02
Scott............................................... 2.23 4.58 2.32 4.59 0.09 0.01
Hancock............................................. 0.07 0.13 0.07 0.13 0 0
Daviess............................................. 2.9 4.64 3.01 4.64 0.11 0
2008:
Edmonson............................................ 0.39 0.72 0.4 0.72 0.01 0
Greenup............................................. N/A N/A 0.75 1.12 N/A N/A
Fayette............................................. 9.34 16.27 9.7 16.29 0.36 0.02
Scott............................................... 2.13 4.26 2.21 4.27 0.08 0.01
Hancock............................................. 0.07 0.12 0.07 0.12 0 0
Daviess............................................. 2.6 4.1 2.7 4.1 0.1 0
2011:
Edmonson............................................ 0.36 0.6 0.36 0.6 0 0
Greenup............................................. N/A N/A 0.64 0.9 N/A N/A
Fayette............................................. 8.39 13.54 8.7 13.56 0.31 0.02
Scott............................................... 2 3.66 2.07 3.67 0.07 0.01
Hancock............................................. 0.06 0.1 0.06 0.1 0 0
Daviess............................................. 2.29 3.37 2.38 3.38 0.09 0.01
2014:
Edmonson............................................ 0.3 0.46 0.31 0.46 0.01 0
Greenup............................................. N/A N/A 0.54 0.68 N/A N/A
Fayette............................................. 7.3 10.44 7.55 10.45 0.25 0.01
Scott............................................... 1.84 2.93 1.9 2.93 0.06 0
Hancock............................................. 0.05 0.07 0.05 0.07 0 0
Daviess............................................. 1.95 2.56 2.02 2.56 0.07 0
2017:
Edmonson............................................ 0.27 0.38 0.28 0.36 0.01 -0.02
Greenup............................................. N/A N/A 0.48 0.53 N/A N/A
Fayette............................................. 6.62 8.36 6.84 8.37 0.22 0.01
Scott............................................... 1.74 2.43 1.8 2.43 0.06 0
Hancock............................................. 0.04 0.06 0.04 0.06 0 0
Daviess............................................. 1.74 2.02 1.8 2.02 0.06 0
2020:
Edmonson............................................ 0.24 0.3 0.25 0.3 0.01 0
Greenup............................................. N/A N/A 0.42 0.44 N/A N/A
Fayette............................................. 6.04 7.03 6.23 7.05 0.19 0.02
Scott............................................... 1.85 2.1 1.7 2.11 -0.15 0.01
Hancock............................................. 0.04 0.05 0.04 0.05 0 0
Daviess............................................. 1.56 1.68 1.61 1.68 0.05 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
The overall effect on VOC emissions of the difference between 8.6
and 9.0 psi RVP gasoline is 0.52 tpd or less for each of the projection
years for the Edmonson County, Lexington, and Owensboro Areas. Further,
each of the projected VOC emission inventories using 9.0 psi RVP
gasoline is less than the baseline VOC emission inventory for the 2002
attainment year. Based upon these data, EPA concludes that the Edmonson
County, Lexington, and Owensboro Areas' 1997 8-hour maintenance plans
demonstrate continued maintenance with the use of either 8.6 or 9.0 psi
RVP gasoline in these Areas. See also Approval Grant Parish 110(a)(1)
Maintenance Plan, 72 FR 62579 (November 6, 2007) and 73 FR 8202
(February 13, 1008).
Comment 7. The Commenters state that Kentucky's maintenance plans
included unidentified maximum achievable control technology (MACT)
standards as sources of reductions of VOC. The Commenters assert that
this analysis failed to consider that the MACT standards could result
in the increase of NOX, VOC, and CO emissions due to the
``energy penalty'' from new emission control devices.
Response 7. The Commenters do not identify the specific impact of
any ``energy penalty'' on maintenance of the 1997 8-hour ozone NAAQS in
the Four Kentucky Areas. Energy inefficiencies, as explained by the
Commenters, may apply to any number of pollutants and the Commenters
did not provide information specifically addressing how an energy
penalty would affect emissions reductions relevant to today's action.
For purposes of responding to this comment, EPA considered the term
``energy penalty'' to refer to a reduction in energy output that might
result in the increase of emissions.
In the 110(a)(1) maintenance plans at issue, Kentucky stated,
``[t]he continued improvement and maintenance of the air quality in the
[areas], as verified by the lack of violations of the 8-hour ozone
standard, is due to the implementation of permanent and enforceable
emission reductions * * *. The following information outlines
[[Page 20861]]
emission reduction measures that have occurred from 1990 through 2002,
and those implemented after 2002 and projected to 2020.'' Kentucky then
lists Maximum Achievable Control Technology (MACT)--promulgated
national emission standards for hazardous air pollutants (commonly
referred to as ``MACT standards'')--controls in this list of measures.
With specific regard to that issue, Kentucky explained, ``* * * (m)any
of the [Hazardous Air Pollutants] HAPs under these industrial
categories of controls are also VOCs and compliance with these new MACT
standards as they are being promulgated will decrease VOC emissions
from the affected industries * * *''. Based on discussions with
Kentucky, EPA concludes that Kentucky's maintenance analyses do not
rely on quantified reductions from MACT standards. Rather, the analyses
simply recognize that implementation of MACT standards may result in
collateral reductions of VOCs.\5\ For that reason, Kentucky listed
``MACT'' generally as part of the permanent and enforceable reductions
in place in the Areas; however, Kentucky did not quantify those
reductions numerically with regard to the maintenance plans at issue
today and does not rely on them to demonstrate maintenance. EPA further
notes that even if Kentucky had claimed reductions from MACT standards,
the Commenters simply claim without any supporting information that an
energy penalty will occur and will result in increased VOC emissions.
Without additional specific information, EPA cannot conclude that there
will be any energy penalty whatsoever.
---------------------------------------------------------------------------
\5\ On September 10, 2010, Jane Spann, Regional Ground-Level
Ozone Contact for Region 4, spoke with John Gowins of Kentucky DAQ
(Environmental Control Supervisor) regarding this issue. Mr. Gowins
confirmed that Kentucky had not numerically quantified any specific
MACT reductions, but was simply recognizing that the existence of
federal regulations in effect at the time were ``permanent and
enforceable reductions'' with regard to VOCs.
---------------------------------------------------------------------------
In terms of the environmental benefit of the MACT standards,
Kentucky's expectation that the implementation of the MACT standards
will have an environmental benefit for ozone is reasonable. The
Commenters do not provide information supporting the comment that
installation of control technology will require more fuel to be burned
such that emissions will increase. Additionally, the Commenters provide
the example of the installation of carbon injection or a baghouse to
control mercury; however, no emissions calculation based on a specific
facility is provided. As a result, the Commenters have not demonstrated
that a source will necessarily become less efficient because of these
control technologies (as was stated in the comment); nor that
Kentucky's maintenance plans are deficient for this reason. EPA
believes that Kentucky's consideration of MACT standards was
reasonable.
In the future, any collateral emission increases associated with a
specific MACT standard control will be addressed during the actual
implementation and permitting of sources. If for some reason the
maintenance of the Areas appear compromised by any specific MACT
standard in the future, the permitting and implementation process, as
well as the triggers and measures in the contingency portion of the
maintenance plans, should prevent or resolve any problem as
expeditiously as practicable.
Comment 8. In further support of the comment regarding use of
projected future emissions reductions, the Commenters assert that
Kentucky appears to be relying upon reductions in NOX
emissions from the Clean Air Interstate Rule (CAIR). The Commenters
state that because CAIR is a cap and trade program, it is arbitrary to
assume that sources will reduce emissions in every year between 2008
and 2020.
Response 8. CAIR was remanded to EPA, (North Carolina v. EPA, 531
F.3d 896 modified on reh'g, 550 F.3d 1176 (D.C. Cir. 2008)), and the
process of developing a replacement rule is ongoing. As a point of
clarification, neither CAIR nor the remand of CAIR altered the
requirements of the NOX SIP Call,\6\ which requires states
to make significant, specific emissions reductions. See 63 FR 57356
(October 27, 1998).
---------------------------------------------------------------------------
\6\ On October 27, 1998 (63 FR 57356), EPA issued a
NOX SIP Call requiring the District of Columbia and 22
states to reduce emissions of NOX in order to reduce the
transport of ozone and ozone precursors. In compliance with EPA's
NOX SIP Call, Kentucky developed rules governing the
control of NOX emissions from Electric Generating Units
(EGUs), major non-EGU industrial boilers, major cement kilns, and
internal combustion engines. EPA approved Kentucky's rules as
fulfilling Phase I and Phase II of the NOX SIP Call on
October 23, 2009 (74 FR 54755). Implementation of the NOX
SIP Call was phased with the Kentucky programs being effective in
2002 and 2006 at the state level. Id; see also 67 FR 17624 (April
11, 2002).
---------------------------------------------------------------------------
All four of the Kentucky Areas attained the 1997 8-hour ozone NAAQS
by 2002, without any reliance on reductions from CAIR, and before
requirements under CAIR were implemented. Kentucky has demonstrated
that the Four Kentucky Areas can maintain the 1997 8-hour ozone NAAQS
without these requirements. Therefore, EPA believes that the
Commenters' expressed concerns about Kentucky's reliance on
NOX reductions from CAIR are misplaced, and Kentucky's
demonstrations of maintenance under section 110(a)(1) do not depend
upon them.
Although Kentucky did not rely on the remanded CAIR rule for either
attainment or maintenance of the 1997 8-hour ozone NAAQS, the
NOX SIP Call requirements provide additional assurance of
maintenance in the Four Kentucky Areas. In addition, the anti-
backsliding provisions of 40 CFR 51.905(f) specifically provide that
the provisions of the NOX SIP Call, including the statewide
NOX emission budgets, continue to apply after revocation of
the 1-hour ozone NAAQS. For the maintenance plans that are the subject
of today's actions, Kentucky appropriately does not rely on the
remanded CAIR requirements.
Comment 9. Again, as support for the contention that Kentucky
considered over-compliance in its maintenance plans, the Commenters
explain that Kentucky included vehicle turnover in its consideration of
maintenance, but state that there is no requirement for vehicle
turnover in the counties covered by the maintenance plans. Thus, it is
the Commenters' contention that there is no justification for including
this factor in the projected future emissions.
Response 9. For the reasons described below, EPA disagrees that
there is no justification for considering fleet turnover in emissions
forecasts. Fleet turnover, the gradual, continuing process of new
vehicles certified to tighter emissions standards replacing older
vehicles, is a historic fact that has been central to estimating the
benefits of federal and state emission control programs in SIPs and
maintenance plans since the earliest motor vehicle emission controls
were implemented. Fleet turnover will occur in the future as long as
people continue to replace older vehicles with newer ones, and there is
no reason to expect this historic practice to change.
The emission impacts of fleet turnover have been incorporated in
every EPA-approved emission model including MOBILE6.2, the approved
model for estimating motor vehicle emissions in SIPs and maintenance
plans at the time of this analysis. Generally, the calculation of
emissions in MOBILE6.2 is based upon the reasonable expectation that
each year, the model year composition of the local motor vehicle fleet
changes as new vehicles are purchased and enter the fleet and old
vehicles are scrapped. This results in a decrease in fleet average NOx
and VOC emissions each year
[[Page 20862]]
because older model year vehicles certified to less stringent emission
standards leave the fleet and are replaced by newer vehicles certified
to more stringent standards. The phase-in of new vehicle standards and
the change in the average emissions of the vehicle fleet due to the
replacement of older vehicles with newer ones are included in MOBILE6.2
for both past and future years.
Specific inputs for MOBILE6.2 can affect the rate of fleet turnover
that the model calculates in future years. EPA has included language in
the guidance document ``Technical Guidance on the Use of MOBILE6.2 for
Emission Inventory Preparation'' (dated August 2004) to ensure that
states make reasonable assumptions about the rate of fleet turnover in
the future. As described in this guidance, projected rates of fleet
turnover in the future should take into account historic fleet turnover
in the area. That guidance states that it would not be reasonable for a
state to assume that the rate of new vehicle purchases and fleet
turnove
