Approval and Promulgation of Implementation Plans and Designations of Areas for Air Quality Planning Purposes; Kentucky: Redesignation of the Boyd County, Kentucky Portion of the Huntington- Ashland 8-Hour Ozone Nonattainment Area to Attainment for Ozone

[Federal Register: May 11, 2007 (Volume 72, Number 91)]
[Proposed Rules]
[Page 26759-26770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11my07-13]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R04-OAR-2006-0362-200702; FRL-8312-6]

Approval and Promulgation of Implementation Plans and
Designations of Areas for Air Quality Planning Purposes; Kentucky:
Redesignation of the Boyd County, Kentucky Portion of the Huntington-
Ashland 8-Hour Ozone Nonattainment Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: On September 29, 2006, the Commonwealth of Kentucky
(Kentucky), through the Kentucky Division for Air Quality (KDAQ),
submitted a request to redesignate the Kentucky portion of the bi-state
Huntington-Ashland 8-hour ozone nonattainment area to attainment for
the 8-hour National Ambient Air Quality Standard (NAAQS); and to
approve a State Implementation Plan (SIP) revision containing a
maintenance plan for the Kentucky portion of the bi-state Huntington-
Ashland area. The bi-state Huntington-Ashland 8-hour ozone
nonattainment area is comprised of one county in Kentucky (Boyd County)
and two counties in West Virginia (Cabell and Wayne counties). In this
action, EPA is proposing to approve Kentucky's 8-hour ozone
redesignation request for Boyd County, which is the Kentucky portion of
the bi-state Huntington-Ashland 8-hour ozone nonattainment area.
Additionally, EPA is proposing to approve the 8-hour ozone maintenance
plan for Boyd County, Kentucky, including the state motor vehicle
emission budgets (MVEBs) for nitrogen oxides (NO_X) and
volatile organic compounds (VOCs). This proposed approval of Kentucky's
redesignation request is based on EPA's determination that Kentucky has
demonstrated that Boyd County, Kentucky has met the criteria for
redesignation to attainment specified in the Clean Air Act (CAA),
including the determination that the entire (both the Kentucky and West
Virginia portions) Huntington-Ashland 8-hour ozone nonattainment area
has attained the 8-hour ozone standard. On May 17, 2006, the State of
West Virginia submitted a redesignation request and maintenance plan
for the West Virginia portion (Cabell and Wayne counties) of this 8-
hour ozone area. EPA has taken action on West Virginia's redesignation
request and maintenance plan through a separate action. The final
rulemaking approving the West Virginia submittal was published in the
Federal Register on September 15, 2006. In this action, EPA is also
providing the status of its transportation conformity adequacy
determination for the new MVEBs for 2018 that are contained in the 8-
hour ozone maintenance plan for Boyd County, Kentucky. MVEBs for Cabell
and Wayne counties in West Virginia are included in the West Virginia
submittal.

DATES: Comments must be received on or before June 11, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2006-0362, by one of the following methods:
(a) http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(b) E-mail: LeSane.Heidi@epa.gov.
(c) Fax: 404-562-9019.
(d) Mail: EPA-R04-OAR-2006-0362 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.
(e) Hand Delivery or Courier: Heidi LeSane, 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. Such deliveries are only
accepted during the Regional Office's normal hours of operation. The
Regional Office's official hours of business are Monday through Friday,
8:30 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2006-0362. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through http://www.regulations.gov
or e-mail, information that you consider to be CBI or otherwise protected.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-mail
comment directly to EPA without going through http://www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other

[[Page 26760]]

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: Heidi LeSane, 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. The telephone number is (404)
562-9074. Mrs. LeSane can also be reached via electronic mail at
LeSane.Heidi@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Proposed Actions Is EPA Taking?
II. What Is the Background for EPA's Proposed Actions?
III. What Are the Criteria for Redesignation?
IV. Why Is EPA Proposing These Actions?
V. What Is the Effect of EPA's Proposed Actions?
VI. What Is EPA's Analysis of the Request?
VII. What Are the Proposed State MVEBs for Boyd County, Kentucky?
VIII. What Is the Status of EPA's Adequacy Determination for the
MVEBs for Boyd County, Kentucky?
IX. Proposed Action on the Redesignation Request and Maintenance
Plan SIP Revision Including Proposed Approval of the 2018 MVEBs
X. Statutory and Executive Order Reviews

I. What Proposed Actions Is EPA Taking?

EPA is proposing to take three related actions, which are
summarized below and described in greater detail throughout the notice
of proposed rulemaking: (1) To redesignate Boyd County, Kentucky to
attainment for the 8-hour ozone NAAQS; (2) to approve Kentucky's 8-hour
ozone maintenance plan, including the associated MVEBs; and (3) to
notify the public of the status of EPA's adequacy determination for the
Boyd County MVEBs.
First, EPA is proposing to determine that the bi-state Huntington-
Ashland 8-hour ozone nonattainment area has attained the 8-hour ozone
standard, and that the Boyd County, Kentucky portion has met the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
The bi-state Huntington-Ashland 8-hour ozone area is comprised of one
county in Kentucky (Boyd County) and two counties in West Virginia
(Cabell and Wayne counties). Today's proposal addresses only the
Kentucky portion of the bi-state Huntington-Ashland 8-hour ozone area.
In a separate rulemaking, EPA approved the redesignation request and
maintenance plan for the West Virginia portion of this 8-hour ozone
area (see 71 FR 39618). EPA is now proposing to approve a request to
change the legal designation of Boyd County, Kentucky from
nonattainment to attainment for the 8-hour ozone NAAQS.
Second, EPA is also proposing to approve Kentucky's 8-hour ozone
maintenance plan for Boyd County, Kentucky (such approval being one of
the CAA criteria for redesignation to attainment status). The
maintenance plan is designed to help keep the Huntington-Ashland area
(of which Boyd County is a part) in attainment for the 8-hour ozone
NAAQS through 2018. Consistent with the CAA, the maintenance plan that
EPA is proposing to approve today also includes 2018 state MVEBs for
NO_X and VOCs. Therefore, EPA is proposing to approve the
2018 state MVEBs that are included as part of Kentucky's maintenance
plan. These MVEBs apply only to Boyd County, Kentucky. MVEBs for Cabell and
Wayne counties in West Virginia are included in the West Virginia submittal.
Third, EPA is announcing the status of EPA's Adequacy Process for
the newly-established 2018 MVEBs for Boyd County, Kentucky. Through a
separate action, MVEBs for West Virginia portion of this 8-hour ozone
area were established (see 71 FR 39618). The Adequacy comment period
for the Boyd County, Kentucky 2018 MVEBs began on June 21, 2006, with
EPA's posting of the availability of this submittal on EPA's Adequacy
Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm).
The Adequacy comment period for these 2018 MVEBs closed
on July 21, 2006. No requests for or adverse comments on this submittal
were received during EPA's Adequacy comment period. Please see section
VIII of this rulemaking for further explanation of this process, and
for more details on the MVEBs.
Today's notice of proposed rulemaking is in response to Kentucky's
September 29, 2006, SIP submittal which supersedes Kentucky's June 7,
2006, submittal that included a request for parallel processing. The
September 29, 2006, submittal requested redesignation of Boyd County,
Kentucky as part of the bi-state Huntington-Ashland Area, and included
a SIP revision addressing the specific issues summarized above, and the
necessary elements for redesignation described in section 107(d)(3)(E).

II. What Is the Background for EPA's Proposed Actions?

Ground-level ozone is not emitted directly by sources. Rather,
emissions of NO_X and VOCs react in the presence of sunlight
to form ground-level ozone. NO_X and VOCs are referred to as
precursors of ozone. The CAA establishes a process for air quality
management through the NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. Under EPA regulations at 40
CFR part 50, the 8-hour ozone standard is attained when the 3-year
average of the annual fourth highest daily maximum 8-hour average
ambient air quality ozone concentrations is less than or equal to 0.08
ppm (i.e., 0.084 ppm when rounding is considered). (See, 69 FR 23857
(April 30, 2004) for further information.) Ambient air quality
monitoring data for the 3-year period must meet a data completeness
requirement. The ambient air quality monitoring data completeness
requirement is met when the average percent of days with valid ambient
monitoring data is greater than 90 percent, and no single year has less
than 75 percent data completeness as determined in Appendix I of part
50. Specifically, section 2.3 of 40 CFR part 50, Appendix I,
``Comparisons with the Primary and Secondary Ozone Standards'' states:

The primary and secondary ozone ambient air quality standards
are met at an ambient air quality monitoring site when the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentration is less than or equal to 0.08 ppm. The number of
significant figures in the level of the standard dictates the
rounding convention for comparing the computed 3-year average annual
fourth-highest daily maximum 8-hour average ozone concentration with
the level of the standard. The third decimal place of the computed
value is rounded, with values equal to or greater than 5 rounding
up. Thus, a computed 3-year average ozone

[[Page 26761]]

concentration of 0.085 ppm is the smallest value that is greater
than 0.08 ppm.

The CAA required EPA to designate as nonattainment any area that
was violating the 8-hour ozone NAAQS based on the three most recent
years of ambient air quality data. The Huntington-Ashland 8-hour ozone
nonattainment area was designated using 2001-2003 ambient air quality
data. The Federal Register document making these designations was
signed on April 15, 2004, and published on April 30, 2004 (69 FR 23857).
The CAA contains two sets of provisions--subpart 1 and subpart
2--that address planning and control requirements for ozone
nonattainment areas. (Both are found in title I, part D.) Subpart 1
(which EPA refers to as ``basic'' nonattainment) contains general, less
prescriptive, requirements for nonattainment areas for any pollutant--
including ozone--governed by a NAAQS. Subpart 2 (which EPA refers to as
``classified'' nonattainment) provides more specific requirements for
certain ozone nonattainment areas. Some 8-hour ozone nonattainment
areas are subject only to the provisions of subpart 1. Other 8-hour
ozone nonattainment areas are also subject to the provisions of subpart
2. Under EPA's Phase 1 8-hour ozone implementation rule (69 FR 23857)
(Phase 1 Rule), signed on April 15, 2004 and published on April 30,
2004, an area was classified under subpart 2 based on its 8-hour ozone
design value (i.e., the 3-year average of the annual fourth-highest
daily maximum 8-hour average ozone concentrations), if it had a 1-hour
design value at or above 0.121 ppm (the lowest 1-hour design value in
Table 1 of subpart 2). All other areas are covered under subpart 1,
based upon their 8-hour ambient air quality design values.
Various aspects of EPA's Phase 1 8-hour ozone implementation rule
were challenged in court and on December 22, 2006, the U.S. Court of
Appeals for the District of Columbia Circuit (D.C. Circuit Court)
vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone
Standard. South Coast Air Quality Management Dist. (SCAQMD) v. EPA, 472
F.3d 882 (D.C. Cir. 2006). The D.C. Circuit Court held that certain
provisions of EPA's Phase I Rule were inconsistent with the
requirements of the CAA. The Court rejected EPA's reasons for
implementing the 8-hour standard in nonattainment areas under subpart 1
in lieu of subpart 2 of title I, part D of the CAA. The Court also held
that EPA improperly failed to retain four measures required for 1-hour
nonattainment areas under the anti-backsliding provisions of EPA's
regulations: (1) Nonattainment area New Source Review (NSR)
requirements based on an area's 1-hour nonattainment classification;
(2) CAA section 185 penalty fees for 1-hour severe or extreme
nonattainment areas; (3) measures to be implemented pursuant to section
172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not
making reasonable further progress toward attainment of the 1-hour
NAAQS, or for failure to attain that NAAQS; and (4) certain conformity
requirements for certain types of federal actions. The D.C. Circuit
Court upheld EPA's authority to revoke the 1-hour standard provided
that there were adequate anti-backsliding provisions in place.
This section sets forth EPA's views on the potential effect of the
Court's ruling on this redesignation action. For the reasons described
throughout this notice of proposed rulemaking, EPA does not believe
that the D.C. Circuit Court's ruling alters any requirements relevant
to the redesignation of the Kentucky portion of the Huntington-Ashland
Area (Boyd County) so as to preclude redesignation, and does not
prevent EPA from proposing to finalize, or finalizing, the Boyd County,
Kentucky redesignation. EPA believes that the Court's decision, as it
currently stands or as it may be modified based upon the petitions for
rehearing that have been filed, imposes no impediment to moving forward
with redesignation of the Huntington-Ashland Area to attainment,
because redesignation is appropriate under the relevant redesignation
provisions of the CAA and longstanding policies regarding redesignation
requests.
The Huntington-Ashland Area was originally designated as moderate
nonattainment for the 1-hour ozone standard on November 6, 1991 (56 FR
56694). The Area was redesignated as attainment for the 1-hour ozone
standard on June 29, 1995 (60 FR 33748). On April 30, 2004, EPA
designated the Huntington-Ashland Area (of which Boyd County is a part)
as a ``basic'' 8-hour ozone nonattainment area. (69 FR 23857)
The D.C. Circuit Court's decision in 2006 also addressed the 8-hour
ozone classification scheme. The Court rejected EPA's reasons for
classifying areas under subpart 1 for the 8-hour standard, and remanded
that matter to the Agency. Consequently, it is possible that the
Huntington-Ashland Area could, as a result of the remand to EPA, be
reclassified under subpart 2. Although any future decision by EPA to
classify this area under subpart 2 might trigger additional future
requirements for the area, this does not mean that redesignation cannot
go forward now. EPA's position is based upon: (1) EPA's longstanding
policy of evaluating requirements in accordance with the requirements
due at the time that the request is submitted; and (2) consideration of
the inequity of retroactively applying any requirements that might be
applied in the future.
In September 2006, when Kentucky submitted its final redesignation
request, the Huntington-Ashland Area was classified under subpart 1of
the CAA, and was obligated to meet only the subpart 1 requirements.
Under EPA's longstanding interpretation of section 107(d)(3)(E) of the
CAA, to qualify for redesignation, states requesting redesignation to
attainment must meet only the relevant SIP requirements that came due
prior to the submittal of a complete redesignation request. See,
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992; see also, Michael Shapiro
Memorandum, ``SIP Requirements for Areas Submitting Requests for
Redesignation to Attainment of the Ozone and Carbon Monoxide NAAQS On
or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993; and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor). See, Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004), which upheld this interpretation. See also, 68 FR 25418, 25424,
25427 (May 12, 2003) (redesignation of St. Louis, Missouri).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit Court recognized the general inequity in
retroactive rulemakings in Sierra Club v. Whitman, 285 F. 3d 63 (D.C.
Cir. 2002), in which the D.C. Circuit Court upheld a district court's
refusal to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. In
Sierra Club, the D.C. Circuit Court stated, ``[a]lthough EPA failed to
make the nonattainment determination within the statutory time frame,
Sierra Club's proposed solution only makes the situation worse.
Retroactive relief would likely impose large costs on the states, which
would face fines and suits for not

[[Page 26762]]

implementing air pollution prevention plans in 1997, even though they
were not on notice at the time.'' Id. at 68. Similarly, with regard to
Kentucky's redesignation request, it would be unfair to penalize
Kentucky by retroactively applying to it for purposes of redesignation,
additional SIP requirements under subpart 2 that were not in effect at
the time it submitted its redesignation request, and that are not
currently in effect, but that might be in effect as a result of the
D.C. Circuit Court's remand.
With respect to the requirements under the 1-hour standard ozone
standard, Boyd County, Kentucky was originally designated as moderate
nonattainment for the 1-hour ozone standard in November 6, 1991 (56 FR
56694). The Area was redesignated as attainment for the 1-hour ozone
standard on June 29, 1995 (60 FR 33748). Therefore, Boyd County,
Kentucky was designated to attainment of the 1-hour ozone standard
prior to its nonattainment designation for the 8-hour ozone standard.
As a result, it is considered to be a 1-hour attainment area subject to
a CAA section 175A maintenance plan for the 1-hour standard. The D.C.
Circuit Court's ruling does not impact redesignation requests for these
types of areas for two main reasons.
First, there are no conformity requirements relevant for the
Huntington-Ashland redesignation request, such as a transportation
conformity SIP.\1\ It is EPA's longstanding policy position that it is
reasonable to interpret the conformity SIP requirements as not applying
for purposes of evaluating a redesignation request under section 107(d)
because state conformity rules are still required after redesignation,
and federal conformity rules apply where state rules have not been
approved. See, 40 CFR 51.390; see also, Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001) (upholding EPA's interpretation). See also, 60 FR 62748
(Dec. 7, 1995) (redesignation of Tampa, Florida).
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\1\ CAA section 176(c)(4)(E) requires states to submit revisions
to their SIPs to reflect certain federal criteria and procedures for
determining transportation conformity. Transportation conformity
SIPs are different from the motor vehicle emissions budgets that are
established in control strategy SIPs and maintenance plans.
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Second, with regard to the three other anti-backsliding provisions
for the 1-hour standard that the D.C. Circuit Court found were not
properly retained, Boyd County, Kentucky is an attainment area subject
to a maintenance plan for the 1-hour standard, and the NSR, contingency
measure (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision
requirements no longer apply to this area because it was redesignated
to attainment of the 1-hour standard. As a result, the decision in
SCAQMD should not alter any requirements that would preclude EPA from
finalizing the Boyd County portion of the Huntington-Ashland area to
attainment for the 8-hour ozone standard.
As noted earlier, in 2005, the ambient ozone data for the
Huntington-Ashland nonattainment area indicated no further violations
of the 8-hour ozone standard, using data from the 3-year period of
2003-2005 (with a 2003-2005 design value of 0.079 ppm), to demonstrate
attainment. As a result, on September 29, 2006, Kentucky requested
redesignation of Boyd County, Kentucky to attainment for the 8-hour
ozone NAAQS. The redesignation request includes three years of
complete, quality-assured ambient air quality data for the ozone
seasons (March 1st until October 31st) of 2003-2005, indicating that
the 8-hour ozone NAAQS has been achieved for the entire Huntington-
Ashland area. Under the CAA, nonattainment areas may be redesignated to
attainment if sufficient, complete, quality-assured data is available
for the Administrator to determine that the area has attained the
standard and the area meets the other CAA redesignation requirements in
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation?

The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation providing that: (1) The Administrator
determines that the area has attained the applicable NAAQS; (2) the
Administrator has fully approved the applicable implementation plan for
the area under section 110(k); (3) the Administrator determines that
the improvement in air quality is due to permanent and enforceable
reductions in emissions resulting from implementation of the applicable
SIP and applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (4) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
section 175A; and, (5) the state containing such area has met all
requirements applicable to the area under section 110 and part D of the
CAA.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:

1. ``Ozone and Carbon Monoxide Design Value Calculations,''
Memorandum from Bill Laxton, Director, Technical Support Division,
June 18, 1990;
2. ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
3. ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
4. ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (hereafter referred to as the
``Calcagni Memorandum'');
5. ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act Deadlines,'' Memorandum from John
Calcagni, Director, Air Quality Management Division, October 28, 1992;
6. ``Technical Support Documents (TSDs) for Redesignation of
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum
from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch,
August 17, 1993;
7. `` State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS)
On or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17, 1993;
8. ``Use of Actual Emissions in Maintenance Demonstrations for
Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry,
Acting Director, Air Quality Management Division, November 30, 1993;
9. ``Part D New Source Review (Part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary
D. Nichols, Assistant Administrator for Air and Radiation, October
14, 1994; and
10. ``Reasonable Further Progress, Attainment Demonstration, and
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995.

IV. Why Is EPA Proposing These Actions?

On September 29, 2006, Kentucky requested redesignation of the
Kentucky portion (Boyd County) of the bi-state Huntington-Ashland 8-
hour ozone nonattainment area to attainment for the 8-hour ozone
standard. EPA's evaluation indicates that Kentucky has

[[Page 26763]]

demonstrated that Boyd County, Kentucky (as part of the Huntington-
Ashland area) has attained the standard and has met the requirements
for redesignation set forth in section 107(d)(3)(E) of the CAA. EPA is
also announcing the status of its adequacy determination for the 2018
state MVEBs, which is relevant to the requested redesignation.

V. What Is the Effect of EPA's Proposed Actions?

EPA's proposed actions establish the basis upon which EPA may take
final action on these issues being proposed for approval today.
Approval of Kentucky's redesignation request would change the official
designation of Boyd County, Kentucky for the 8-hour ozone NAAQS found
at 40 CFR part 81. Approval of Kentucky's request would also
incorporate into the Kentucky SIP, a plan for maintaining the 8-hour
ozone NAAQS in the Huntington-Ashland Area through 2018. The
maintenance plan includes contingency measures to remedy future
violations of the 8-hour ozone NAAQS. The maintenance plan also
establishes state MVEBs of 1.18 tons per day (tpd) for VOC and 1.30 tpd
for NO_X for the year 2018 for Boyd County, Kentucky.
Approval of Kentucky's maintenance plan would also result in approval
of the state MVEBs. Additionally, EPA is announcing the status of its
adequacy determination for the 2018 state MVEBs pursuant to 40 CFR
93.118(f)(1).

VI. What Is EPA's Analysis of the Request?

EPA is proposing to make the determination that the Boyd County
portion of the Huntington-Ashland 8-hour ozone nonattainment area has
attained the 8-hour ozone standard, and that all other redesignation
criteria have been met for that portion of the Huntington-Ashland 8-
hour ozone area. EPA has made this determination with regard to West
Virginia meeting the other redesignation criteria through a separate
rulemaking (see 71 FR 39618). Therefore, the entire Huntington-Ashland
area has air quality monitoring data showing attainment of the 8-hour
ozone NAAQS. The basis for EPA's determination for the Boyd County area
is discussed in greater detail below.

Criteria (1)--Boyd County Has Attained the 8-Hour Ozone NAAQS

EPA is proposing to determine that the Boyd County portion of the
Huntington-Ashland area has attained the 8-hour ozone NAAQS. For ozone,
an area may be considered to be attaining the 8-hour ozone NAAQS if
there are no violations, as determined in accordance with 40 CFR 50.10
and Appendix I of part 50, based on three complete, consecutive
calendar years of quality-assured air quality monitoring data. To
attain this standard, the 3-year average of the fourth-highest daily
maximum 8-hour average ozone concentrations measured at each monitor
within an area over each year must not exceed 0.08 ppm. Based on the
rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the EPA Air Quality System (AQS). The monitors
generally should have remained at the same location for the duration of
the monitoring period required for demonstrating attainment.
EPA reviewed ozone monitoring data from ambient ozone monitoring
stations in the Huntington-Ashland area for the ozone season from 2003-
2005. This data has been quality assured and is recorded in AQS. The
fourth high averages for 2003, 2004 and 2005, and the 3-year average of
these values (i.e., design value), are summarized in the following table:

Table 1.--Annual 4th Max High and Design Value for 8-Hour Ozone for
Huntington-Ashland Area
[Parts per million, ppm]
------------------------------------------------------------------------
Huntington Ashland (Boyd
Year (Cabell County) County)
------------------------------------------------------------------------
2003.............................. 0.080 0.088
2004.............................. 0.066 0.068
2005.............................. 0.082 0.082
Design Value...................... 0.076 0.079
------------------------------------------------------------------------

As discussed above, the design value for an area is the highest
design value recorded at any monitor in the area. Therefore, the design
value for the Huntington-Ashland area is 0.079 ppm, which meets the
standard as described above. Additionally, preliminary air quality data
from the 2006 monitoring season indicates that the Huntington-Ashland
Area is continuing to attain the 8-hour ozone standard. As discussed in
more detail below, KDAQ has committed to continue monitoring in this
area in accordance with 40 CFR part 58. The data submitted by Kentucky
provides an adequate demonstration that Boyd County (as a part of the
Huntington-Ashland area) has attained the 8-hour ozone NAAQS.

Criteria (2)--Kentucky Has a Fully Approved SIP Under Section 110(k)
for Boyd County and Criteria (5)--Kentucky Has Met All Applicable
Requirements Under Section 110 and Part D of the CAA

Below is a summary of how these two criteria were met.
EPA has determined that Kentucky has met all applicable SIP
requirements for the Boyd County under section 110 of the CAA (general
SIP requirements). EPA has also determined that the Kentucky SIP
satisfies the criterion that it meets applicable SIP requirements under
part D of title I of the CAA (requirements specific to subpart 1 basic
8-hour ozone nonattainment areas) in accordance with section
107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully
approved with respect to all applicable requirements in accordance with
section 107(d)(3)(E)(ii). In making these determinations, EPA
ascertained which requirements are applicable to the area and that if
applicable, they are fully approved under section 110(k). SIPs must be
fully approved only with respect to applicable requirements.
a. Boyd County, Kentucky Has Met All Applicable Requirements Under
Section 110 and Part D of the CAA
The September 4, 1992, Calcagni Memorandum (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E). Consistent with this interpretation, to qualify for
redesignation, states

[[Page 26764]]

requesting redesignation to attainment must meet only the relevant CAA
requirements that come due prior to the submittal of a complete
redesignation request. See also, Michael Shapiro Memorandum (``SIP
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide NAAQS On or After November
15, 1992,'' September 17, 1993), and 60 FR 12459, 12465-66 (March 7,
1995) (redesignation of Detroit-Ann Arbor, Michigan). Applicable
requirements of the CAA that come due subsequent to the area's
submittal of a complete redesignation request remain applicable until a
redesignation is approved, but are not required as a prerequisite to
redesignation. See, section 175A(c) of the CAA; Sierra Club, 375 F.3d
537 (7th Cir. 2004); see also, 68 FR 25424, 25427 (May 12, 2003)
(redesignation of St. Louis, Missouri).
General SIP requirements: Section 110(a)(2) of title I of the CAA
delineates the general requirements for a SIP, which include
enforceable emissions limitations and other control measures, means, or
techniques, provisions for the establishment and operation of
appropriate devices necessary to collect data on ambient air quality,
and programs to enforce the limitations. General SIP elements and
requirements are delineated in section 110(a)(2) of title I, part A of
the CAA. These requirements include, but are not limited to, the
following: submittal of a SIP that has been adopted by the state after
reasonable public notice and hearing; provisions for establishment and
operation of appropriate procedures needed to monitor ambient air
quality; implementation of a source permit program; provisions for the
implementation of part C requirements (Prevention of Significant
Deterioration (PSD)) and provisions for the implementation of part D
requirements (New Source Review (NSR) permit programs); provisions for
air pollution modeling; and provisions for public and local agency
participation in planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address the transport
of air pollutants (NO_X SIP Call, Clean Air Interstate Rule
(CAIR)). EPA has also found, generally, that states have not submitted
SIPs under section 110(a)(1) to meet the interstate transport
requirements of section 110(a)(2)(D)(i). However, the section
110(a)(2)(D) requirements for a state are not linked with a particular
nonattainment area's designation and classification in that state. EPA
believes that the requirements linked with a particular nonattainment
area's designation and classifications are the relevant measures to
evaluate in reviewing a redesignation request. The transport SIP
submittal requirements, where applicable, continue to apply to a state
regardless of the designation of any one particular area in the state.
Thus, we do not believe that the CAA's interstate transport
requirements should be construed to be applicable requirements for
purposes of redesignation.
In addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The area will still be subject to these requirements
after the area is redesignated. The section 110 and part D
requirements, which are linked with a particular area's designation and
classification, are the relevant measures to evaluate in reviewing a
redesignation request. This approach is consistent with EPA's existing
policy on applicability (i.e., for redesignations) of conformity and
oxygenated fuels requirements, as well as with section 184 ozone
transport requirements. See, Reading, Pennsylvania, proposed and final
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458,
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748,
December 7, 1995). See also, the discussion on this issue in the
Cincinnati, Ohio redesignation (65 FR 37890, June 19, 2000), and in the
Pittsburgh, Pennsylvania redesignation (66 FR 50399, October 19, 2001).
EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
Any section 110 requirements that are linked to the part D requirements
for 8-hour ozone nonattainment areas are not yet due, since, as
explained below, no part D requirements for 8-hour standard became due
prior to submission of the redesignation request. Therefore, as
discussed above, for purposes of redesignation, they are both
considered applicable requirements. Nonetheless, EPA notes that it has
previously approved provisions into the Kentucky SIP addressing section
110 elements (See 47 FR 30059, July 12, 1982). EPA believes that the
section 110 SIP approved for the 1-hour ozone NAAQS is also sufficient
to meet the requirements under the 8-hour ozone NAAQS (as well as
satisfying the issue raised by the D.C. Circuit Court in the SCAQMD case).
Part D requirements: EPA has also determined that the Kentucky SIP
meets applicable SIP requirements under part D of the CAA since no
requirements became due prior to the submission of the area's
redesignation request. Sections 172-176 of the CAA, found in subpart 1
of part D, set forth the basic nonattainment requirements applicable to
all nonattainment areas. Section 182 of the CAA, found in subpart 2 of
part D, establishes additional specific requirements depending on the
area's nonattainment classification. Subpart 2 is not applicable to the
Boyd County, Kentucky area.
Part D, subpart 1 applicable SIP requirements: For purposes of
evaluating this redesignation request, the applicable part D, subpart 1
SIP requirements for all nonattainment areas are contained in sections
172(c)(1)-(9). A thorough discussion of the requirements contained in
section 172 can be found in the General Preamble for Implementation of
Title I (57 FR 13498). No requirements applicable for purposes of
redesignation under part D became due prior to the submission of the
redesignation request, and therefore none are applicable to the area
for purposes of redesignation. For example, the requirements for an
attainment demonstration that meets the requirements of section
172(c)(1) are not yet applicable, nor are the requirements for
Reasonably Achievable Control Technology (RACT) and Reasonably
Available Control Measures (RACM) (section 172(c)(1)), reasonable
further progress (RFP) (section 172(c)(2)), and contingency measures
(section 172(c)(9)).
In addition to the fact that no part D requirements applicable for
purposes of redesignation became due prior to submission of the
redesignation request and therefore are not applicable, EPA believes it
is reasonable to interpret the conformity and NSR requirements as not
requiring approval prior to redesignation.
Section 176 Conformity Requirements: Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
Federally supported or funded projects conform to the air quality
planning goals in the applicable SIP. The requirement to determine
conformity applies to transportation plans, programs and projects
developed, funded or approved

[[Page 26765]]

under title 23 of the United States Code (U.S.C.) and the Federal
Transit Act (``transportation conformity'') as well as to all other
Federally supported or funded projects (``general conformity''). State
conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required the EPA to promulgate.
EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) because state conformity
rules are still required after redesignation and Federal conformity
rules apply where state rules have not been approved. See, Wall, 265
F.3d 426 (6th Cir. 2001), upholding this interpretation. See also, 60
FR 62748 (Dec. 7, 1995, Tampa, Florida).
EPA has also determined that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without a part D NSR program in effect since PSD requirements
will apply after redesignation. The rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled ``Part D New
Source Review (Part D NSR) Requirements for Areas Requesting
Redesignation to Attainment.'' Kentucky has demonstrated that the area
will be able to maintain the standard without a part D NSR program in
effect, and therefore, Kentucky need not have a fully approved part D
NSR program prior to approval of the redesignation request. EPA most
recently approved Kentucky's NSR program (including a nonattainment NSR
and PSD program) in the Kentucky SIP on July 11, 2006 (71 FR 38990).
Kentucky's PSD program will become effective in Boyd County, Kentucky
upon redesignation to attainment. See, rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorraine,
Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR
53665, October 23, 2001); Grand Rapids, Michigan (61 FR 31834-31837,
June 21, 1996). Thus, Boyd County, Kentucky has satisfied all
applicable requirements for purposes of redesignation under section 110
and part D of the CAA.
b. The Area Has a Fully Approved Applicable SIP Under Section 110(k) of
the CAA
EPA has fully approved the applicable Kentucky SIP for Boyd County
under section 110(k) of the CAA for all requirements applicable for
purposes of redesignation. EPA may rely on prior SIP approvals in
approving a redesignation request, see Calcagni Memorandum at p. 3;
Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984,
989-90 (6th Cir. 1998); Wall, 265 F.3d 426 (6th Cir. 2001), plus any
additional measures it may approve in conjunction with a redesignation
action. See, 68 FR 25426 (May 12, 2003) and citations therein.
Following passage of the CAA of 1970 by the U.S. Congress, Kentucky
adopted and submitted, and EPA has fully approved at various times,
provisions addressing the various 1-hour ozone standard SIP elements
applicable in the Boyd County, Kentucky (60 FR 33748, June 29, 1995).
As indicated above, EPA believes that the section 110 elements not
connected with nonattainment plan submissions and not linked to the
area's nonattainment status are not applicable requirements for
purposes of redesignation. EPA also believes that since the part D
requirements applicable for purposes of redesignation did not become
due prior to submission of the redesignation request, they also are
therefore not applicable requirements for purposes of redesignation.

Criteria (3)--The Air Quality Improvement in the Boyd County Portion of
the Huntington-Ashland 8-hour Ozone Area Is Due to Permanent and
Enforceable Reductions in Emissions Resulting From Implementation of
the SIP and Applicable Federal Air Pollution Control Regulations and
Other Permanent and Enforceable Reductions

EPA believes that Kentucky has demonstrated that the observed air
quality improvement in the area is due to permanent and enforceable
reductions in emissions resulting from implementation of the SIP,
Federal measures, and other state-adopted measures. EPA has determined
that the implementation of the following permanent and enforceable
emissions controls, that occurred from 2001-2005, have reduced local
NO_X and VOC emissions and brought the area into attainment:

2001-2005 Emission Reduction Programs
------------------------------------------------------------------------

-------------------------------------------------------------------------
Highway Mobile Source Reductions:
Federal Motor Vehicle Control Programs (FMVCP)
Lower Reid Vapor Pressure
Fleet Turnover of Automobiles
Tier 2 Vehicle Emissions and Fuel Standards
Heavy Duty Engine and Vehicle Fuel Standards
Point Source Emissions Reductions:
Reasonably Available Control Measures (RACM)
Maximum Available Control Technology (MACT)
Non-Highway Mobile Source Reductions:
Small Spark-Ignition engines
Large Spark-Ignition engines
Locomotives
Land based diesel engines
Additional Reductions:
NOX SIP Call Reductions
------------------------------------------------------------------------

Notably, no credit specific emission reduction is being claimed in the
SIP for the NO_X SIP Call reductions although this program
has resulted in measurable emissions reductions.
Kentucky has demonstrated that the implementation of permanent and
enforceable emissions controls have reduced local VOC and
NO_X emissions. Most of the reductions are attributable to
Federal programs such as EPA's Tier 2/Low Sulfur Gasoline program and
other national clean fuel programs that began implementation in 2004.
Additionally, Kentucky has indicated in its September 2006 submittal
that the Huntington-Ashland area has benefited from emissions
reductions that have been achieved and will continue to be achieved
through the implementation of the NO_X SIP Call, beginning in
2002. Kentucky has further demonstrated that year-to-year
meteorological changes and trends are not the likely source of the
overall, long-term improvements in ozone levels. In addition, the
following non-highway mobile source reduction programs were implemented
during the 2002-2004 period: Small spark-ignition engines, large-spark
ignition engines, locomotives and land-base diesel engines. EPA
believes that permanent and enforceable emissions reductions, in and
surrounding the nonattainment area, are the cause of long-term
improvements in ozone levels, and are the cause of the Huntington-
Ashland Area achieving attainment of the ozone standard.

Criteria (4)--The Area Has a Fully Approved Maintenance Plan Pursuant
to Section 175A of the CAA

In its request to redesignate the Boyd County, Kentucky area (as
part of the Huntington-Ashland 8-hour ozone nonattainment area) to
attainment, KDAQ submitted a SIP revision to provide for the
maintenance of the 8-hour ozone NAAQS in the Boyd County,

[[Page 26766]]

Kentucky area for at least 10 years after the effective date of
redesignation to attainment.
a. What is required in a maintenance plan?
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after the Administrator
approves a redesignation to attainment. Eight years after the
redesignation, Kentucky must submit a revised maintenance plan which
demonstrates that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni Memorandum provides additional guidance on the
content of a maintenance plan. The Calcagni Memorandum explains that an
ozone maintenance plan should address five requirements: The attainment
emissions inventory, maintenance demonstration, monitoring,
verification of continued attainment, and a contingency plan. As is
discussed more fully below, Kentucky's maintenance plan includes all
the necessary components and is approvable as part of the redesignation
request.
b. Attainment Emissions Inventory
In coordination with West Virginia, Kentucky selected 2004 as ``the
attainment year'' for Boyd County (as part of the Huntington-Ashland 8-
hour ozone area) for the purposes of demonstrating attainment of the 8-
hour ozone NAAQS. This attainment inventory identifies the level of
emissions in the area which is sufficient to attain the 8-hour ozone
standard. Kentucky began development of this attainment inventory by
first developing a baseline emissions inventory for the Boyd County.
The year 2002 was chosen as the base year for developing a
comprehensive ozone precursor emissions inventory for which projected
emissions could be developed for 2004, 2005, 2008, 2011, 2014, 2017,
and 2018. Non-road mobile emissions were calculated using the most
recent non-road model. On-road mobile source emissions were calculated
using EPA's MOBILE6.2 emission factors model. The 2004 VOC and
NO_X emissions (as well as the emissions for other years) for
Boyd County, Kentucky were developed consistent with EPA guidance, and
are summarized in the table in the following subsection.
c. Maintenance Demonstration
The September 29, 2006, final submittal includes a maintenance plan
for the Boyd County area. This demonstration:

(i) Shows compliance and maintenance of the 8-hour ozone
standard by providing information to support the demonstration that
current and future emissions of VOC and NO_X remain at or
below attainment year 2004 emissions levels. The year 2004 was
chosen as the attainment year because it is one of the most recent
three years (i.e., 2003, 2004, and 2005) for which the Huntington-
Ashland area has clean air quality data for the 8-hour ozone standard.
(ii) Uses 2004 as the attainment year and includes future emission
inventory projections for the 2005, 2008, 2011, 2014, 2017 and 2018.
(iii) Identifies an ``out year,'' at least 10 years after the
time necessary for EPA to review and approve the maintenance plan.
Per 40 CFR part 93, a MVEB was established for the last year of the
maintenance plan (2018). See section VII below.
(iv) Provides the following actual and projected emissions inventories
for the Boyd County portion of the Huntington-Ashland nonattainment area.

Table 2.--Boyd County VOC Emissions
[Tons per day]
*
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source category 2004 2005 2008 2011 2014 2017 2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point................................... 17.52 17.76 18.49 19.09 19.81 20.54 20.79
Area.................................... 2.97 2.97 2.97 2.97 2.97 2.97 2.97
Mobile **............................... 2.50 2.28 1.91 1.63 1.38 1.23 1.18
Nonroad................................. 0.71 0.68 0.61 0.56 0.55 0.56 0.56
---------------------------------------------------------------------------------------------------------------
Total............................... 23.70 23.69 23.98 24.25 24.71 25.30 25.50
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See further information in Section VI(4)(e) Verification of Continued Attainment.
** Calculated using MOBILE 6.2.

Table 3.--Boyd County NOX Emissions
[Tons per day]
*
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source category 2004 2005 2008 2011 2014 2017 2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point................................... 16.17 16.35 16.90 17.37 17.92 18.48 18.68
Area.................................... 0.09 0.10 0.10 0.10 0.10 0.10 0.10
Mobile **............................... 3.79 3.60 2.98 2.36 1.79 1.41 1.30
Nonroad................................. 1.83 1.81 1.71 1.63 1.54 1.48 1.47
---------------------------------------------------------------------------------------------------------------
Total............................... 21.89 21.86 21.69 21.46 21.35 21.47 21.55
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See further information in Section VI(4)(e) Verification of Continued Attainment.
** Calculated using MOBILE 6.2.

Although the Kentucky SIP submission provided VOC and
NO_X emissions for the attainment and future years for Boyd
County, EPA considers emissions from the entire Huntington-Ashland area
for a demonstration of maintenance. Maintenance is demonstrated if the
future year NO_X and VOC emission for the entire area remains
at or below the level of the attainment year emissions. Both Kentucky
and West Virginia chose 2004

[[Page 26767]]

for their ``attainment year'' for this area. While the VOC emissions
for the Boyd County, Kentucky portion of the Huntington-Ashland area
indicate a steady increase of emissions beyond the attainment year, it
is important to note that this area is comprised of three counties for
which emissions should be considered. EPA's review of VOC emissions for
the entire area indicates that these emissions are 47.40 tpd in 2004,
and 45.20 tpd in 2018, which is an overall downward trend in emissions
for the area. Similarly, EPA's review of NO_X emissions for
the entire area also indicates an overall downward trend in emissions
for the area, with a total of 59.29 tpd in 2004 and 48.55 tpd in 2018.
Therefore, it is highly likely that maintenance of the 8-hour ozone
standard will be maintained in the future for the Huntington-Ashland area.
d. Monitoring Network
There are currently two monitors measuring ozone in the Huntington-
Ashland 8-hour ozone area (one in Cabell County, West Virginia and one
in Boyd County, Kentucky). KDAQ has committed in the maintenance plan
to continue operation of the monitor in Boyd County in compliance with
40 CFR part 58, and has addressed the requirement for monitoring. West
Virginia has provided a similar commitment for the monitor in Cabell
County, West Virginia.
e. Verification of Continued Attainment
Kentucky has the legal authority to enforce and implement the
requirements of the ozone maintenance plan for the Boyd County,
Kentucky area. This includes the authority to adopt, implement and
enforce any subsequent emissions control contingency measures
determined to be necessary to correct future ozone attainment problems.
Kentucky will track the progress of the maintenance plan by
performing future reviews of actual emissions for the area using the
latest emissions factors, models and methodologies. For these periodic
inventories Kentucky will review the assumptions made for the purpose
of the maintenance demonstration concerning projected growth of
activity levels. If any of these assumptions appear to have changed
substantially, Kentucky will re-project emissions. Following the
redesignation of the area, sources are prohibited from reducing
emission controls already in place when attainment is achieved unless
EPA approves a SIP revision consistent with section 110 of the CAA.
Kentucky and EPA have instituted the following programs that will
remain enforceable and are included as part of Kentucky's September
2006 SIP submittal, to maintain air quality which meets the NAAQS for
the 8-hour ozone standard.
• All new major VOC or NO_X sources locating in
Kentucky shall as a minimum apply control procedures that are
reasonable, available, and practical;
• All major modifications to existing major VOC or
NO_X sources are subject to RACM requirements as well as the
BACT requirement of the Kentucky Division of Air Quality PSD regulations;
• Federal Motor Control Standards apply in Kentucky;
• Transportation Conformity Requirements;
• PSD Requirements;
• Federal Controls on certain nonroad engines (e.g. diesel and other
Federal requirements, industrial diesel equipment, locomotives) after 2000;
• Federal controls on the VOC content for Architectural and
Maintenance Paints, Auto Body Shops and Consumer Products.
In addition to these measures, Kentucky explains that more controls
are expected to occur in the Boyd County area which are not factored
into the projected future year emissions analyses. For example, a major
refinery, Marathon Ashland Oil Cattlesburg is undergoing a project
entitled the Refinery Modernization Project, which involves new
operational and emissions limitations. The proposed Refinery
Modernization Project involves installation of new equipment and
upgrading of existing equipment. The following emission reductions were
expected to occur from the Ashland Project by 2006:

• PM 33 tons per year (decrease)
• PM₁₀ 33 tons per year (decrease)
• SO₂ 3,605 tons per year (decrease)
• NO_X 730 tons per year (decrease)
• CO 4 tons per year (decrease)
• VOC 64 tons per year (decrease)

When these reductions are factored into future emission
inventories, the totals for the emission inventories for Boyd County
are expected to decrease.
f. Contingency Plan
The contingency plan provisions are designed to promptly correct
any violation of the NAAQS that occurs after redesignation. Section
175A of the CAA requires that a maintenance plan include such
contingency measures as EPA deems necessary to assure that the state
will promptly correct a violation of the NAAQS that occurs after
redesignation. The maintenance plan should identify the contingency
measures to be adopted, a schedule and procedure for adoption and
implementation, and a time limit for action by the state. A state
should also identify specific indicators to be used to determine when
the contingency measures need to be implemented. The maintenance plan
must include a requirement that a state will implement all measures
with respect to control of the pollutant that were contained in the SIP
before redesignation of the area to attainment in accordance with
section 175A(d). This requirement is met because all SIP measures are
retained for maintenance. Kentucky's submittal satisfies all the
contingency plan requirements described in section 175A of the CAA.
In the September 29, 2006, final submittal, Kentucky affirms that a
combination of all programs instituted by Kentucky and EPA have
resulted in cleaner air in the Huntington-Ashland area and the
anticipated future benefits from these programs are expected to result
in continued maintenance of the 8-hour ozone NAAQS in this area.
Sources are prohibited from terminating emissions controls following
the redesignation of Boyd County unless EPA approves a SIP revision
consistent with section 110 of the CAA. The contingency plan includes
tracking and triggering mechanisms to determine when contingency
measures are needed and a process of developing and adopting
appropriate control measures. The primary trigger is a measured
violation of the 8-hour ozone NAAQS. If there is a measured violation
of the 8-hour ozone NAAQS in Boyd County, Kentucky commits to develop
regulations for at least one of the following control measures for
submission to the EPA within nine months. All regulatory programs will
be implemented within 18 months from a measured violation. Kentucky
will consider one or more of the measures contained in the list of
potential contingency measures below.
The secondary triggers in the contingency plan are (1) if a
measured value of the fourth highest maximum is 0.087 ppm or greater at
the Boyd County monitor in a single ozone season, or (2) if periodic
emission inventory updates reveal excessive or unanticipated growth
greater than 10 percent in ozone precursor emissions. If either of
these two triggers are met, Kentucky will evaluate existing control
measures to determine if any further emission reduction measures should
be implemented at that time.
Potential Contingency Measures:
• Implementation of a program to require additional emission
reductions on stationary source;

[[Page 26768]]

• Implementation of a program to enhance inspection of stationary
sources to ensure emission control equipment is functioning properly;
• Open burning restrictions during ozone season;
• High-volume, low pressure spray guns and low VOC degreaser solvents;
• Implementation of incentives for alternative fuels programs;
• 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 non-motorized vehicles
when economically feasible and in the public interest.
EPA has concluded that the maintenance plan adequately addresses
the five basic components of a maintenance plan: Attainment inventory,
maintenance demonstration, monitoring network, verification of
continued attainment, and a contingency plan. The maintenance plan SIP
revision submitted by Kentucky for Boyd County meets the requirements
of section 175A of the CAA and is approvable.

VII. What Are the Proposed State MVEBs for Boyd County, Kentucky?

Under the CAA, states are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (reasonable further progress SIPs and attainment
demonstration SIPs etc.) and maintenance plans create MVEBs for
criteria pollutants and/or their precursors to address pollution from
cars and trucks. Per 40 CFR part 93, a MVEB is established for the last
year of the maintenance plan. The MVEB is the portion of the total
allowable emissions in the maintenance demonstration that is allocated
to highway and transit vehicle use and emissions. See, 40 CFR 93.101.
The MVEB serves as a ceiling on emissions from an area's planned
transportation system. The MVEB concept is further explained in the
preamble to the November 24, 1993, transportation conformity rule (58
FR 62188). The preamble also describes how to establish the MVEB in the
SIP and revise the MVEB.
Kentucky and West Virginia have elected to develop separate state
MVEBs to cover their individual portions of the Huntington-Ashland 8-
hour ozone area. As required, Kentucky is only establishing state MVEBs
for NO_X and VOC for the last year of the maintenance plan
(2018). EPA is now proposing to approve these state MVEBs. The state
MVEBs for Boyd County, Kentucky are defined in the table below.

Table 4.--Boyd County 2018 MVEBs
[Tons per day]
------------------------------------------------------------------------
NOX VOC
------------------------------------------------------------------------
1.30 1.18
------------------------------------------------------------------------

Through this rulemaking, EPA is proposing to approve the 2018 state
MVEBs for NO_X and VOCs for Boyd County, Kentucky because EPA
has determined that the Huntington-Ashland area maintains the 8-hour
ozone standard with emissions at the levels of the budgets. As
mentioned above, these MVEBs will be separate state area budgets for
Boyd County, Kentucky. West Virginia established MVEBs for the
remainder of the Huntington-Ashland 8-hour ozone area (i.e., Cabell and
Wayne counties) through the 8-hour ozone maintenance plan that was
submitted with West Virginia's request for redesignation. Through a
separate rulemaking, EPA found adequate and approved the MVEBs for the
West Virginia portion of this 8-hour ozone area (see 71 FR 39618). Once
the new state MVEBs for Boyd County, Kentucky (the subject of this
rulemaking) are approved or found adequate (whichever is done first),
they must be used for future transportation conformity determinations.
As is discussed in greater detail below, EPA is also announcing the
status of its adequacy determination for the proposed 2018 MVEBs for
Boyd County, Kentucky pursuant to 40 CFR 93.118(f)(1).

VIII. What Is the Status of EPA's Adequacy Determination of the MVEBs
for Boyd County, Kentucky?

Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the NAAQS. If a transportation plan does not ``conform,'' most new
projects that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a SIP. The regional emissions analysis is
one, but not the only, requirement for implementing transportation
conformity. Transportation conformity is a requirement for
nonattainment and maintenance areas. Maintenance areas are areas that
were previously nonattainment for a particular NAAQS but have since
been redesignated to attainment with a maintenance plan for that NAAQS.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB contained
therein ``adequate'' for use in determining transportation conformity.
Once EPA affirmatively finds the submitted MVEB is adequate for
transportation conformity purposes, that MVEB can be used by state and
Federal agencies in determining whether proposed transportation
projects ``conform'' to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining ``adequacy'' of an MVEB
are set out in 40 CFR 93.118(e). The process for determining
``adequacy'' consists of three basic steps: Public notification of a
SIP submission, a public comment period, and EPA's adequacy finding.
This process for determining the adequacy of submitted SIP MVEBs was
initially outlined in EPA's May 14, 1999 guidance, ``Conformity
Guidance on Implementation of March 2, 1999, Conformity Court
Decision.'' This guidance was finalized in the Transportation
Conformity Rule Amendments for the ``New 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards and Miscellaneous Revisions for
Existing Areas; transportation conformity rule amendments--Response to
Court Decision and Additional Rule Change'' on July 1, 2004 (69 FR 40004).
EPA follows this guidance and rulemaking in making its adequacy
determinations.
Kentucky's maintenance plan submission contained new VOC and
NO_X MVEBs for Boyd County, Kentucky for the year 2018. The
availability of the Kentucky SIP submission with the Boyd County MVEBs
was announced for public comment on EPA's adequacy Web page on June 21,
2006 at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm.
The EPA public comment period on adequacy of the 2018 MVEBs for the
Boyd County, Kentucky closed on July 21, 2006. EPA did not receive any
adverse comments

[[Page 26769]]

regarding the MVEBs or requests for the submittal.
EPA's current intentions are to make its determination of the
adequacy of the 2018 MVEBs for Boyd County, Kentucky for transportation
conformity purposes in the final rulemaking on the redesignation of the
Boyd County, Kentucky portion of the Huntington-Ashland 8-hour ozone
area. If EPA finds the 2018 MVEBs adequate and approves the 2018 MVEBs
in the final rulemaking action, the new MVEBs must be used for future
transportation conformity determinations. The new 2018 MVEBs, if found
adequate and approved in the final rulemaking, will be effective the
date of publication of EPA's final rulemaking in the Federal Register.
For required regional emissions analysis years that involve the year
2017 or before, the applicable budget for the purposes of conducting
transportation conformity will be the MVEBs for Boyd County from the
Huntington-Ashland 1-hour ozone maintenance plan. For required regional
emissions analysis years that involve 2018 or beyond, the applicable
budgets are defined in section VII of this rulemaking.

IX. Proposed Actions on the Redesignation Request and the Maintenance
Plan SIP Revision Including Proposed Approval of the 2018 MVEBs

Today, EPA is proposing to determine that Boyd County, Kentucky has
met the criteria for redesignation from nonattainment to attainment for
the 8-hour ozone NAAQS. Further, EPA is proposing to approve Kentucky's
redesignation for Boyd County, Kentucky (as a part of the Huntington-
Ashland 8-hour ozone area). In a separate action, EPA approved the 8-
hour ozone redesignation of the West Virginia portion of this area from
nonattainment to attainment. See, 71 FR 54421 (September 15, 2006).
After evaluating Kentucky's SIP submittal requesting redesignation, EPA
has determined that it meets the redesignation criteria set forth in
section 107(d)(3)(E) of the CAA. EPA believes that the redesignation
request and monitoring data demonstrate that the Boyd County portion of
the Huntington-Ashland area has attained the 8-hour ozone standard.
EPA is also proposing to approve the September 29, 2006, SIP
revision containing Kentucky's 8-hour ozone maintenance plan for Boyd
County, Kentucky. The maintenance plan includes state MVEBs for 2018,
among other requirements. EPA is proposing to approve the 2018 MVEBs
for Boyd County because the maintenance plan demonstrates that expected
emissions for the area in 2018, including the 2018 MVEBs plus the
estimated emissions for all other source categories, will continue to
maintain the 8-hour ozone standard.
Further, as part of today's action, EPA is providing the status of
its adequacy determination for the 2018 MVEBs for Boyd County in
accordance with 40 CFR 93.118(f)(1). Within 24 months from the
effective date of EPA's adequacy finding for the MVEBs, or the
publication date for the final rule for this action, the transportation
partners will need to demonstrate conformity to these new MVEBs
pursuant to 40 CFR 93.104(e) as effectively amended by section
172(c)(2)(E) of the CAA as added by the Safe, Accountable, Flexible,
Efficient Transportation Equity Act--A Legacy for Users (SAFETEA-LU),
which was signed into law on August 10, 2005.

X. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Redesignation of an area to attainment under
section 107(d)(3)(e) of the CAA does not impose any new requirements on
small entities. Redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on sources. Accordingly, the Administrator certifies that this proposed
rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this rule proposes to approve pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it 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).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (59 FR 22951, November 9, 2000). This action also does not
have Federalism implications because it does not have substantial
direct effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely affects the status of a geographical area, does not impose any
new requirements on sources, or allow a state to avoid adopting or
implementing other requirements and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This proposed rule also is not subject to Executive Order
13045 ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not
economically significant and because the Agency does not have reason to
believe that the rule concerns an environmental health risk or safety
risk that may disproportionately affect children.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Redesignation is an
action that affects the status of a geographical area but does not
impose any new requirements on sources. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

[[Page 26770]]

40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

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

Dated: May 3, 2007.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E7-9130 Filed 5-10-07; 8:45 am]
BILLING CODE 6560-50-P

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Approval and Promulgation of Implementation Plans and Designations of Areas for Air Quality Planning Purposes; Kentucky: Redesignation of the Boyd County, Kentucky Portion of the Huntington- Ashland 8-Hour Ozone Nonattainment Area to Attainment for Ozone

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