

[Federal Register: January 25, 2006 (Volume 71, Number 16)]
[Rules and Regulations]               
[Page 4047-4050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja06-9]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2005-KY-0001-200521(f); FRL-8023-8]

 
Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Kentucky; Redesignation of 
the Christian County, KY, Portion of the Clarksville-Hopkinsville 8-
Hour Ozone Nonattainment Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a May 20, 2005, final request to redesignate 
the Christian County, Kentucky, portion of the Clarksville-Hopkinsville 
8-hour ozone nonattainment area to attainment for the 8-hour ozone 
National Ambient Air Quality Standard (NAAQS), and a Kentucky State 
Implementation Plan (SIP) revision containing a 12-year maintenance 
plan for Christian County, Kentucky. EPA is also providing information 
on the status of the Agency's transportation conformity adequacy 
determination for the new motor vehicle emissions budgets (MVEBs) for 
the years 2004 and 2016 that are contained in the 12-year 8-hour ozone 
maintenance plan for Christian County, Kentucky. EPA is approving such 
MVEBs in this action. This final rule addresses comments made on EPA's 
proposed rulemaking previously published for this action.

DATES: This rule will be effective February 24, 2006.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2005-KY-0001. All documents in the 
docket are listed on 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 Regional Material in E-Docket 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: James Hou, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. Mr. Hou can be reached via 
telephone number at (404) 562-8965 or electronic mail at 
hou.james@epa.gov.


SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Actions Is EPA Taking?
II. What Is the Background for the Actions?
III. Response to Comment
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Actions Is EPA Taking?

    EPA is taking final action to change the legal designation of the 
Christian County, Kentucky, portion of the Clarksville-Hopkinsville 8-
hour ozone nonattainment area from nonattainment to attainment for the 
8-hour ozone NAAQS. The interstate Clarksville-Hopkinsville 8-hour 
ozone nonattainment area is composed of two counties (i.e., Christian 
County, Kentucky, and Montgomery County, Tennessee). EPA is also 
approving Kentucky's 8-hour ozone maintenance plan for Christian County 
(such approval being one of the Clean Air Act (CAA) criteria for 
redesignation to attainment status). The maintenance plan is designed 
to help keep the Clarksville-Hopkinsville area (of which Christian 
County is a part) in attainment for the 8-hour ozone NAAQS for the next 
12 years. These approval actions are based on EPA's determination that 
the Commonwealth of Kentucky has demonstrated that Christian County, 
Kentucky, has met the criteria for redesignation to attainment 
specified in the CAA, and that the entire Clarksville-Hopkinsville 8-
hour ozone nonattainment area has attained the 8-hour ozone standard. 
EPA's analyses for Christian County, Kentucky, and Montgomery County, 
Tennessee, are described in detail in the direct final rules published 
September 22, 2005, at 70 FR 55550 and 70 FR 55559, respectively.
    EPA is also providing information on the status of the Agency's 
transportation conformity adequacy determination for the new MVEBs for 
the years 2004 and 2016 that are contained in the maintenance plan for 
Christian County, Kentucky. The maintenance plan establishes MVEBs for 
the years 2004 and 2016, respectively, of 3.83 tons per day (tpd) and 
2.08 tpd for volatile organic compound (VOC) emissions, and 9.53 tpd 
and 3.83 tpd for nitrogen oxides (NOX). Through this action, 
EPA is announcing that these MVEBs are adequate for the purposes of 
transportation conformity. During EPA's Adequacy public comment period 
which began on March 29, 2005, and closed on April 28, 2005, EPA did 
not receive any adverse comments related to the MVEBs. EPA is also 
approving these MVEBs in this action. Upon the publication of this 
final rulemaking in the Federal Register, these MVEBs must be used by 
the transportation partners in this area for future conformity 
determinations. Additionally, conformity to these new MVEBs must be 
demonstrated within 24 months of the effective date of this action, 
pursuant to section 6011(a) of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act--A Legacy for Users, which was 
signed into law on August 10, 2005.
    Additionally, in this action, EPA is responding to the adverse 
comment received on the September 22, 2005, rulemaking proposing to 
approve the aforementioned revisions (70 FR 55613).

II. What Is the Background for the Actions?

    In two separate actions published on September 22, 2005, EPA 
proposed to approve the redesignation of the Kentucky (70 FR 55613) and 
Tennessee (70 FR 55613) portions of the Clarksville-Hopkinsville 8-Hour 
Ozone Nonattainment Area to attainment. Also on that date, EPA 
published two companion direct final rules approving the redesignation 
to attainment of the Kentucky (70 FR 55550) and Tennessee (70 FR 55559) 
portions of the nonattainment area. The proposed and direct final rules 
stated that if EPA received adverse comment by October 24, 2005, the 
direct final rule would be withdrawn and would not take effect. EPA 
subsequently received an adverse comment regarding the redesignation of 
the Kentucky portion of the nonattainment area (i.e., Christian 
County). In this action, EPA is addressing the comment and taking final 
action as described in section I and section IV.

[[Page 4048]]

III. Response to Comments

    The following is a summary of the adverse comment received on the 
proposed rule published September 22, 2005, (70 FR 55613) and EPA's 
response to the comment.
    Comment: The commenter asserts that the Kentucky Division for Air 
Quality (KDAQ) has permitted a new source of NOX in 
Muhlenberg County, Kentucky, which borders Christian County. The 
commenter states that the source is permitted to emit well over 5,000 
tons per year of NOX. The commenter asserts that until KDAQ 
establishes that Christian County will be in attainment with the 8-hour 
ozone NAAQS with the additional NOX emissions from this 
source through a reasonable worst case analysis of the source's 
NOX emissions during any one-hour or eight-hour hour period, 
EPA should not redesignate Christian County to attainment.
    Response: As detailed in Section III of the September 22, 2005, 
direct final rule (70 FR 55550), the CAA provides the requirements for 
redesignating a nonattainment area to attainment. Specifically, section 
107(d)(3)(E) 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. EPA has determined that all of the 
redesignation requirements are met for the Christian County area as 
described in the September 22, 2005, rulemaking (70 FR 55550).
    KDAQ has demonstrated that ozone precursor emissions inside the 
Christian County nonattainment area will remain at or below attainment 
year levels in the future, which indicate the 8-hour ozone standard 
will be maintained. Furthermore, as for the impact of emissions outside 
of Christian County, the commenter has provided no analysis indicating 
that any such emissions would be likely to cause or contribute to 
violations in the future. Kentucky had performed a cumulative 
assessment of the impacts of current and proposed Kentucky electric 
power generating facilities, and concluded that 8-hour ozone violations 
are not likely to occur as a consequence of these emissions. The Agency 
reviewed this report in response to the commenter's concerns. The 
report, ``A Cumulative Assessment of the Environmental Impacts Caused 
by Kentucky Electric Generating Units,'' dated December 17, 2001, is 
included in the docket for this action. The report documents Kentucky's 
analysis of the environmental impacts of 34 existing power plants and 
22 proposed new or expanded power plants, including the proposed new 
source in Muhlenberg County. Specific to air quality, the report 
provides information on the changes in ozone and fine particulates 
concentrations with the addition of these 56 proposed and existing 
power plants in Kentucky. The emissions modeled for the proposed new 
power plant in Muhlenberg County were: 507.4 tons per year (tpy) of 
VOCs and 6,030 tpy of NOX. The impact assessment did not 
identify potential ozone attainment problems for Christian County, 
Kentucky, even though it considered far more sources than only the one 
mentioned by the commenter.
    Furthermore, EPA notes that NOX emissions from the 
proposed power plant in Muhlenberg County will be subject to the 
regional NOX reduction programs of the NOX SIP 
Call and, in the future, the Clean Air Interstate Rule (CAIR) (70 FR 
25162 (May 12, 2005)). Since Kentucky is regulated by those programs, 
sources subject to them, including power plants, will remain subject to 
an overall NOX emissions budget for the state that will not 
increase as a result of the possible new plant in Muhlenberg County. 
Consequently, that source would have to obtain NOX 
allowances from other sources subject to the NOX SIP Call 
and/or CAIR to emit NOX and the sources in the Commonwealth 
of Kentucky would remain subject to the same overall NOX 
budget.
    The proposed new power plant in Muhlenberg County refers to the 
Thoroughbred Generating Station (TGS) project. This project is proposed 
to consist of two pulverized coal electric utility steam generating 
units with a nominal power generating capacity of 750 megawatts each 
and a nominal rated capacity heat input rate of 7,443 pounds per 
million British thermal units (lb/MMBtu) each. The NOX and 
VOC emissions limits for the two pulverized coal combustion units are 
proposed to be as follows: 0.08 lb/MMBtu of NOX each 
(equivalent to 5,216 tons per year for both units combined) and 0.0072 
lb/MMBtu of VOCs each (equivalent to 235 tons per year for both units 
combined). The KDAQ has a merged air emissions permitting program in 
which a single permit serves as the prevention of significant 
deterioration construction permit and the title V operating permit. The 
merged permit was issued to Thoroughbred Generating Company, LLC (TGC) 
on October 11, 2002, with slight revisions on December 6, 2002, and 
February 17, 2005.
    The permit issued to TGC was appealed through Kentucky's 
administrative appeals procedure. The Administrative Hearing Officer 
(AHO) issued a report with recommendations on August 9, 2005. The AHO 
recommended remanding portions of the permit to the KDAQ. The Secretary 
of the Kentucky Environmental and Public Protection Cabinet makes the 
final determination on the appeal. No determination has yet been made 
by the Secretary.
    After KDAQ issued the original permit on October 11, 2002, EPA 
received a petition to object to the title V portion of the permit. EPA 
is awaiting the conclusion of the Kentucky permit appeal process before 
completing a response to the petition. Thus the permit appeal process 
for the source has not yet been concluded, and therefore the permit 
provisions remain subject to revision. Moreover, EPA believes that for 
the reasons set forth above that the TGS does not pose a potential 
problem for attainment or maintenance of the standard in the 
Clarksville-Hopkinsville area.
    Should monitored violations of the 8-hour ozone NAAQS occur in 
Christian County, the contingency plan within the County's 8-hour ozone 
maintenance plan will be implemented to promptly correct the 
violations. In the contingency measures section, Kentucky details 
actions it will take if there are measured exceedances (i.e., an 8-hour 
average equal to or greater than 0.085 parts per million) of the 8-hour 
ozone standard, and reserves the right to implement other contingency 
measures than those listed for the County if deemed necessary.

IV. Final Action

    EPA is taking final action to change the legal designation of the 
Christian County, Kentucky portion of the Clarksville-Hopkinsville 8-
hour ozone nonattainment area from nonattainment to attainment for the 
8-hour ozone NAAQS. Through this action, EPA is announcing that the new 
2004 and 2016 MVEBs are adequate for transportation conformity 
purposes. EPA is also approving into the Kentucky SIP the 8-hour ozone 
maintenance plan for

[[Page 4049]]

Christian County, and the new MVEBs for the years 2004 and 2016, 
respectively, of 3.83 tpd and 2.08 tpd for VOC, and 9.53 tpd and 3.83 
tpd for NOX.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 action 
merely approves 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 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 approves 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 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 (65 
FR 67249, 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 CAA. This 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 CAA. In this 
context, in the absence of a prior existing requirement for the 
Commonwealth 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 CAA. 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 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.).
    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 rule 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 March 27, 2006. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

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

    Dated: January 13, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart S--Kentucky

0
2. Section 52.920(e) is amended by adding a new entry at the end of the 
table for ``8-Hour Ozone Maintenance Plan for the Christian County, 
Kentucky Area'' to read as follows:


Sec.  52.920  Identification of plan.

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    (e) * * *

[[Page 4050]]



                                                     EPA-Approved Kentucky Non-regulatory Provisions
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                                                                             State submittal
  Name of non-regulatory SIP      Applicable geographic or nonattainment      date/effective         EPA approval date               Explanation
           provision                               area                            date
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                                                                      * * * * * * *
8-Hour Ozone Maintenance Plan   Christian County..........................         05/20/2005  01/25/06 [Insert citation of
 for the Christian County,                                                                      publication]
 Kentucky area.
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PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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

0
2. In Sec.  81.318, the table entitled ``Kentucky--Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Clarksville-
Hopkinsville, TN-KY: Christian County'' to read as follows:


Sec.  81.318  Kentucky.

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                                                            Kentucky--Ozone (8-Hour Standard)
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                                                    Designation \a\                                       Category/classification
             Designation              ------------------------------------------------------------------------------------------------------------------
                                         Date \1\               Type                           Date \1\                              Type
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                                                                      * * * * * * *
Clarksville-Hopkinsville, TN-KY Area:
    Christian County.................     02/24/06  Attainment..................

                                                                      * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.

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[FR Doc. 06-635 Filed 1-24-06; 8:45 am]

BILLING CODE 6560-50-P
