Approval and Promulgation of Air Quality Implementation Plans: Kentucky; Approval Section 110(a)(1) Maintenance Plan for the 1997 8-Hour Ozone Standard for the Paducah Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve a revision to the Kentucky State Implementation Plan (SIP) concerning the maintenance plan addressing the 1997 8-hour ozone standards for the Paducah 1997 8-hour ozone attainment area, which comprises Marshall County and a portion of Livingston County (hereafter referred to as the “Paducah Area”). This maintenance plan was submitted to EPA on May 27, 2008, by the Commonwealth of Kentucky, and ensures the continued attainment of the 1997 8-hour ozone national ambient air quality standards (NAAQS) through the year 2020. On July 15, 2009, the Commonwealth of Kentucky submitted supplemental information with updated emissions tables for this Area to reflect actual emissions. This plan meets the statutory and regulatory requirements, and is consistent with EPA's guidance. EPA is taking final action to approve the revisions to the Kentucky SIP, pursuant to the Clean Air Act (CAA). EPA is also in the process of establishing a new 8-hour ozone NAAQS, and expects to finalize the reconsidered NAAQS by August 2010. Today's action, however, relates only to the 1997 8-hour ozone NAAQS. Requirements for the Paducah Area under the 2010 NAAQS will be addressed in the future.

DATES:

This rule will be effective September 27, 2010 .

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 http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that, if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Zuri Farngalo, 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. Mr. Farngalo may be reached by phone at (404) 562-9152 or by electronic mail address farngalo.zuri@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. EPA Guidance and CAA Requirements

III. Today's Action

IV. Final Action

V. Statutory and Executive Order Reviews

I. Background

In accordance with the CAA, the Paducah Area, consisting of Marshall County and a portion of Livingston County in Kentucky, was designated as marginal nonattainment for the 1-hour ozone NAAQS effective November 6, 1991 (56 FR 56694) because the Area did not meet the 1-hour ozone NAAQS. On November 13, 1992, the Commonwealth of Kentucky submitted a request to redesignate the Paducah Area to attainment for the 1-hour ozone NAAQS. At the same time as the redesignation request, Kentucky submitted the required ozone monitoring data and maintenance plan to ensure that the Paducah Area would remain in attainment for the 1-hour ozone NAAQS for a period of 10 years, consistent with the CAA section 175A(a). The maintenance plan submitted by Kentucky followed EPA guidance for limited maintenance areas, which applied to 1-hour ozone NAAQS areas with design values less than 85 percent of the applicable standard (0.12 parts per million). On February 7, 1995, EPA approved Kentucky's request to redesignate the Paducah Area (60 FR 7124) to attainment for the 1-hour ozone NAAQS.

II. EPA Guidance and CAA Requirements

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). The Paducah Area was designated attainment for the 1997 8-hour ozone NAAQS, effective June 15, 2004. The Paducah attainment area consequently was required to submit a 10-year maintenance plan under section 110(a)(1) of the CAA and the Phase I Rule, 40 CFR 51.905(a)(4). On May 20, 2005, EPA issued guidance providing information as to how a state might fulfill the 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”).

On December 22, 2006, the United States Court of Appeals for the District of Columbia Circuit issued an opinion that vacated portions of EPA's Phase I Rule. See South Coast Air Quality Management District. v. EPA, 472 F.3d 882 (DC Cir. 2006). 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. The Court's decision did not alter any 8-hour ozone attainment area requirements under the Phase I Rule for CAA section 110(a)(1) maintenance plans. EPA has determined that Kentucky's May 27, 2008, proposed SIP revision satisfies the section 110(a)(1) CAA requirements for a plan that provides for implementation, maintenance, and enforcement of the 1997 8-hour ozone NAAQS in the Paducah attainment area.

III. Today's Action

EPA is taking final action to approve the SIP revisions concerning the 110(a)(1) maintenance plan addressing the 1997 8-hour ozone NAAQS for the Paducah Area. This maintenance plan was submitted to EPA on May 27, 2008, by the Commonwealth of Kentucky to ensure the continued attainment of the 1997 8-hour ozone NAAQS through the year 2020. This approval action is based on EPA's analyses of whether this request complies with section 110 of the CAA and section 51.905(a)(4). EPA's analyses for the Commonwealth of Kentucky's submittal are described in detail in the proposed rule published January 4, 2010 (75 FR 97).

The comment period for this proposed action closed on February 3, 2010. EPA did not receive any comments, adverse or otherwise, during this public comment period. However, EPA noticed an inadvertent omission of the July 15, 2009, supplement that Kentucky provided from the electronic docket at http://www.regulations.gov. Since EPA referenced this supplement in the January 4, 2010, proposed rulemaking, EPA reopened the public comment period for this proposed action for the limited purpose of allowing the public the opportunity to review and consider this supplemental information in regards to EPA's proposed rulemaking (75 FR 8574). EPA's reopening of the comment period ended on March 25, 2010. During this additional comment period, EPA did not receive any comments.

In support of this final action, the Commonwealth of Kentucky provided an analysis of emissions differences for the highway mobile source emissions using a Reid Vapor Pressure (RVP) level of 9.0 pounds per square inch (psi), which is the applicable standard during the regulatory control period (i.e., May 1st through September 15th). See 40 CFR 80.27. In its original submission, the Commonwealth of Kentucky had modeled 8.6 psi based on historical information that indicated that summer time RVP supplied to the Paducah Area averaged 8.6 psi. EPA considers the original submittal to model a more stringent RVP; however, in order to ensure that Kentucky could demonstrate attainment with a higher RVP, Kentucky provided the supplemental information. Subsequently, the Commonwealth of Kentucky provided modeling at the 9.0 psi level. EPA reviewed this additional information and noted that there was no change in emissions for nitrogen oxides (NO_X) and a slight increase (less than a tenth of a ton per day) in emissions of volatile organic compounds (VOC) with RVP at the 9.0 psi level as compared to the 8.6 psi level. The difference in total highway emissions for each year emissions was provided and is included in the following table:

EPA has made the determination that, even with the slight increase in VOC emissions due to the difference of modeling 9.0 psi versus 8.6 psi, Kentucky has demonstrated continued maintenance for the 1997 8-hour NAAQS for the Paducah Area. Further, EPA believes that Kentucky's 110(a)(1) submission for the Paducah Area meets the CAA requirements in addition to EPA policy and guidance.

IV. Final Action

Pursuant to Section 110 of the CAA, EPA is approving the maintenance plan addressing the 1997 8-hour ozone NAAQS for the Paducah Area, which was submitted by Kentucky on May 27, 2008, and ensures continued attainment of the 1997 8-hour ozone NAAQS through the year 2020. EPA has evaluated the Commonwealth's submittal and has determined that it meets the applicable requirements of the CAA and EPA regulations, and is consistent with EPA policy. EPA's rationale is explained in the proposed action.

On March 12, 2008, EPA issued a revised ozone NAAQS. EPA subsequently announced a reconsideration of the 2008 NAAQS, and proposed new 8-hour ozone NAAQS in January 2010. A final 8-hour ozone NAAQS is expected in August 2010. The current action, however, is being taken to address requirements under the 1997 ozone NAAQS. Requirements for the Paducah Area under the 2010 NAAQS will be addressed in the future.

V. 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, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 25, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Air pollution control
• Environmental protection
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

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 a new entry for the “Paducah 8-Hour Ozone Attainment/1-Hour Ozone Maintenance Plan Section 110(a)(1)” at the end of the table to read as follows: