

[Federal Register: August 3, 2007 (Volume 72, Number 149)]
[Rules and Regulations]               
[Page 43172-43176]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au07-12]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2006-0362-200702; FRL-8449-5]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve a request, submitted on 
September 29, 2006, from the Commonwealth of Kentucky (Kentucky), 
through the Kentucky Division for Air Quality (KDAQ), to redesignate 
the Kentucky portion of the bi-state Huntington-Ashland 8-hour ozone 
nonattainment area to attainment for the 8-hour ozone National Ambient 
Air Quality Standard (NAAQS). The Kentucky portion of the bi-state 
Huntington-Ashland 8-hour ozone nonattainment area (hereafter referred 
to as ``Boyd County'') is comprised of one county in Kentucky (Boyd 
County) and two counties in West Virginia (Cabell and Wayne Counties). 
EPA's approval of Kentucky's redesignation request is based upon the 
determination that Kentucky has demonstrated that Boyd County has met 
the criteria for redesignation to attainment specified in the Clean Air 
Act (CAA), including the determination that the entire (including both 
the Kentucky and West Virginia counties) bi-state Huntington-Ashland 8-
hour ozone nonattainment area has attained the 8-hour ozone standard. 
Additionally, EPA is approving a revision to the Kentucky State 
Implementation Plan (SIP) including the 8-hour ozone maintenance plan 
for Boyd County that contains the new 2018 motor vehicle emission 
budgets (MVEBs) for nitrogen oxides (NOX) and volatile 
organic compounds (VOCs). Through this action, EPA is also finding the 
2018 MVEBs adequate for the purposes of transportation conformity. On 
May 17, 2006, the State of West Virginia submitted a 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. MVEBs for Cabell and Wayne 
Counties in West Virginia were approved through EPA's September 15, 
2006, action.

DATES: Effective Date: This rule will be effective September 4, 2007.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2006-0362. 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 through 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

[[Page 43173]]

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, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. Ms. LeSane can be reached via 
telephone number at (404) 562-9074 or electronic mail at 
LeSane.Heidi@epa.gov.


SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the Background for the Actions?
II. What Actions are EPA Taking?
III. Why Are We Taking These Actions?
IV. What Are the Effects of These Actions?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What is the Background for the Actions?

    On September 29, 2006, Kentucky, through the KDAQ, submitted a 
request to redesignate Boyd County to attainment for the 8-hour ozone 
standard, and for EPA approval of the Kentucky SIP revision containing 
a maintenance plan for Boyd County. In an action published on May 11, 
2007 (72 FR 26759), EPA proposed to approve the redesignation of Boyd 
County to attainment. EPA also proposed approval of Kentucky's plan for 
maintaining the 8-hour NAAQS as a SIP revision, and proposed to approve 
the 2018 state \1\ MVEBs for Boyd County that were contained in the 
maintenance plan. EPA received no comments on the May 11, 2007, 
proposal. Today's rule is EPA's final action following the May 11, 
2007, proposed rule.
---------------------------------------------------------------------------

    \1\ The term ``state'' with regard to MVEBs refers to the 
portion of the area, in a multi-state area, for which the MVEBs 
apply. In this case, the term ``state'' indicates that the MVEBs 
cover Boyd County, and also indicates to transportation conformity 
implementers in this area that there are separate MVEBs for the West 
Virginia portion of this area. EPA's Companion Guidance for the July 
1, 2004, Final Transportation Conformity Rule: Conformity 
Implementation in Multi-Jurisdictional Nonattainment and Maintenance 
Areas for Existing and New Air Quality Standards explains more about 
the possible geographical extent of an MVEB, how these geographical 
areas are defined, and how transportation conformity is implemented 
in these different geographical areas. For the purposes of today's 
final action, the term ``state MVEBs'' refers to the Boyd County 
MVEBs being approved as part of the Boyd County maintenance plan.
---------------------------------------------------------------------------

    Today, EPA is also providing information on the status of the 
Agency's transportation conformity adequacy determination for the new 
state MVEBs for the year 2018 that are contained in the maintenance 
plan for Boyd County. The maintenance plan establishes the following 
state MVEBs for Boyd County.

                         Boyd County 2018 MVEBs
                             [Tons per day]
------------------------------------------------------------------------
                                                               2018
------------------------------------------------------------------------
VOCs....................................................            1.18
NOX.....................................................            1.30
------------------------------------------------------------------------

    EPA's adequacy public comment period on these budgets (as contained 
in Kentucky's submittal) began on June 21, 2006, and closed on July 23, 
2006. No comments were received during EPA's adequacy public comment 
period. Through this Federal Register notice, EPA is finding the 2018 
state MVEBs, as contained in Kentucky's submittal, adequate. These 
MVEBs meet the adequacy criteria contained in the Transportation 
Conformity Rule. The new state MVEBs must be used for future 
transportation conformity determinations.
    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 (DC Circuit Court) vacated 
EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 
23951, April 30, 2004). South Coast Air Quality Management Dist. v. 
EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to 
several petitions for rehearing, the DC Circuit Court clarified that 
the Phase 1 Rule was vacated only with regard to those parts of the 
Rule that had been successfully challenged. Therefore, the Phase 1 Rule 
provisions related to classifications for areas currently classified 
under subpart 2 of title I, part D of the CAA as 8-hour nonattainment 
areas, the 8-hour attainment dates and the timing for emissions 
reductions needed for attainment of the 8-hour ozone NAAQS, remain 
effective. The June 8th decision left intact the Court's rejection of 
EPA's reasons for implementing the 8-hour standard in certain 
nonattainment areas under subpart 1 in lieu of subpart 2. By limiting 
the vacatur, the Court let stand EPA's revocation of the 1-hour 
standard and those anti-backsliding provisions of the Phase 1 Rule that 
had not been successfully challenged. The June 8th decision affirmed 
the December 22, 2006, decision that EPA had improperly failed to 
retain measures required for 1-hour nonattainment areas under the anti-
backsliding provisions of the regulations: (1) Nonattainment area New 
Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for 1-hour 
severe or extreme nonattainment areas; and (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. The June 8th decision clarified that the Court's reference to 
conformity requirements for anti-backsliding purposes was limited to 
requiring the continued use of 1-hour MVEBs until 8-hour budgets were 
available for 8-hour conformity determinations, which is already 
required under EPA's conformity regulations. The Court thus clarified 
that 1-hour conformity determinations are not required for anti-
backsliding purposes.
    For the reasons set forth in the proposal action for Boyd County, 
EPA does not believe that the Court's rulings alter any requirements 
relevant to this redesignation action so as to preclude redesignation, 
and do not prevent EPA from finalizing this redesignation. EPA believes 
that the Court's December 22, 2006, and June 8, 2007, decisions impose 
no impediment to moving forward with redesignation of Boyd County to 
attainment. Even in light of the Court's decisions, redesignation is 
appropriate under the relevant redesignation provisions of the CAA and 
longstanding policies regarding redesignation requests.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8th decision clarified that 
for those areas with 1-hour MVEBs in their 1-hour maintenance plans (in 
this instance, Boyd County), anti-backsliding requires only that those 
1-hour budgets must be used for 8-hour conformity determinations until 
replaced by 8-hour budgets. To meet this requirement, conformity 
determinations in such areas must continue to comply with the 
applicable requirements of EPA's conformity regulations at 40 CFR part 
93.

II. What Actions are EPA Taking?

    EPA is taking final action to approve Kentucky's redesignation 
request and to change the legal designation of Boyd County from 
nonattainment to attainment for the 8-hour ozone NAAQS. The entire bi-
state Huntington-Ashland 8-hour ozone nonattainment area is comprised 
of one county in Kentucky (Boyd County) and two West Virginia Counties 
(Cabell and Wayne Counties). This final action addresses

[[Page 43174]]

only Boyd County. EPA has already taken action on the redesignation 
request and maintenance plan for the West Virginia portion of this area 
in a separate action. EPA is also approving Kentucky's 8-hour ozone 
maintenance plan for Boyd County (such approval being one of the CAA 
criteria for redesignation to attainment status). The maintenance plan 
is designed to help keep Boyd County in attainment for the 8-hour ozone 
NAAQS through 2018. These approval actions are based on EPA's 
determination that Kentucky has demonstrated that Boyd County has met 
the criteria for redesignation to attainment specified in the CAA, 
including a demonstration that the entire bi-state Huntington-Ashland 
Area has attained the 8-hour ozone standard. EPA's analyses of 
Kentucky's 8-hour ozone redesignation request and maintenance plan are 
described in detail in the proposed rule published May 11, 2007 (72 FR 
26759).
    Consistent with the CAA, the maintenance plan that EPA is approving 
today also includes 2018 state MVEBs for NOX and VOCs for 
Boyd County. In this action, EPA is approving these 2018 MVEBs. For 
regional emission analysis years that involve years prior to 2018, the 
applicable budgets, for the purpose of conducting transportation 
conformity analyses, are the 1-hour ozone maintenance plan state MVEBs. 
For regional emission analysis years that involve the year 2018 and 
beyond, the applicable budgets, for the purpose of conducting 
transportation conformity analyses, are the new 2018 MVEBs. EPA is 
finding adequate and approving the Boyd County MVEBs for NOX 
and VOCs in this action. MVEBs for Cabell and Wayne Counties in West 
Virginia were found adequate and approved through a separate action.

III. Why Are We Taking These Actions?

    EPA has determined that the entire bi-state Huntington-Ashland Area 
has attained the 8-hour ozone standard and has also determined that 
Kentucky has demonstrated that all other criteria for the redesignation 
of Boyd County from nonattainment to attainment of the 8-hour ozone 
NAAQS have been met. See, section 107(d)(3)(E) of the CAA. EPA is also 
taking final action to approve the maintenance plan for Boyd County as 
meeting the requirements of sections 175A and 107(d) of the CAA. 
Furthermore, EPA is finding adequate and approving the new 2018 state 
MVEBs contained in Kentucky's maintenance plan because these MVEBs are 
consistent with maintenance for the entire bi-state Huntington-Ashland 
Area. In the May 11, 2007, proposal to redesignate Boyd County, EPA 
described the applicable criteria for redesignation to attainment and 
its analysis of how those criteria have been met. The rationale for 
EPA's findings and actions is set forth in the proposed rulemaking and 
summarized in this rulemaking.

IV. What Are the Effects of These Actions?

    Approval of the redesignation request changes the official 
designation of Boyd County, Kentucky for the 8-hour ozone NAAQS, found 
at 40 CFR Part 81. The approval also incorporates into the Kentucky SIP 
a plan for maintaining the 8-hour ozone NAAQS in Boyd County through 
2018. The maintenance plan includes contingency measures to remedy 
future violations of the 8-hour ozone NAAQS, and establishes state 
MVEBs for the year 2018 for Boyd County. In a separate action, EPA has 
already approved 8-hour ozone MVEBs for the West Virginia portions 
(Cabell and Wayne Counties) of this area.

V. Final Action

    After evaluating Kentucky's redesignation request, EPA is taking 
final action to approve the redesignation and change the legal 
designation of Boyd County, Kentucky from nonattainment to attainment 
for the 8-hour ozone NAAQS. Through this action, EPA is also approving 
into the Kentucky SIP the 8-hour ozone maintenance plan for Boyd 
County, which includes the new state 2018 MVEBs of 1.18 tpd for VOCs, 
and 1.30 tpd for NOX. Within 24 months from the publication 
date for this final rule, the Kentucky 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. EPA has taken action on the West Virginia SIP 
through a separate rulemaking, and the transportation partners are 
currently using the West Virginia 8-hour ozone MVEBs.

VI. 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. 
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

[[Page 43175]]

a SIP submission, to use VCS in place of a SIP submission that 
otherwise satisfies the provisions of the CAA. 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 October 2, 2007. 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) of the CAA.)

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: July 25, 2007.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
    40 CFR part 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 is amended by adding a new entry at the end of the 
table for ``Huntington-Ashland 8-hour Ozone Maintenance Plan'' to read 
as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                        Applicable         State submittal
    Name of nonregulatory SIP          geographic or       date/effective     EPA approval date     Explanation
            provision               nonattainment area          date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Huntington-Ashland 8-hour Ozone    Boyd County.........            09/29/06  08/03/07 [Insert
 Maintenance Plan.                                                            first page of
                                                                              publication].
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

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

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


0
4. In Sec.  81.318, the table entitled ``Kentucky-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Huntington-Ashland, 
WV-KY:'', ``Boyd County'' to read as follows:


Sec.  81.318  Kentucky.

* * * * *

                                        Kentucky-Ozone (8-Hour Standard)
----------------------------------------------------------------------------------------------------------------
                                                   Designation \a\                    Category/classification
          Designated area           ----------------------------------------------------------------------------
                                        Date \1\                 Type                Date \1\          Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Huntington-Ashland, WV-KY:
    Boyd County....................        09/04/07  Attainment.................

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


[[Page 43176]]

* * * * *
[FR Doc. E7-14982 Filed 8-2-07; 8:45 am]

BILLING CODE 6560-50-P
