SUPPLEMENTARY INFORMATION:

I. Today's Action

II. Background

III. Analysis of the Submittal

IV. Final Action

V. Statutory and Executive Order Reviews

I. Today's Action

In this final rulemaking, EPA is approving revisions to the Lexington portion of the Commonwealth of Kentucky's SIP revision submitted on August 24, 2004. EPA is approving the Lexington portion of Kentucky's SIP revision because it satisfies the requirements of the CAA for the 10-year update to the 1-hour ozone maintenance plan for the Lexington Maintenance Area. In a previous action on April 23, 2004 (69 FR 21983), EPA proposed approval of these revisions to the Lexington 1-Hour Ozone Maintenance Plan contingent upon Kentucky addressing EPA's clarifying comments in the final SIP submittal. The public comment period closed on May 24, 2004. No adverse comments were received in response to the proposed rule. Additionally, Kentucky has adequately addressed EPA's requested clarifications. Upon final approval of the 10-year update to the Lexington 1-Hour Ozone Maintenance Plan, the revised 2004 MVEBs and the newly established 2015 MVEBs must be used to determine transportation conformity. Also in this final action, EPA is correcting an error in the April 23, 2004, proposed rule on page 69 FR 21985. In Table 1, the safety margin value for the year 2012 is corrected to read, “4.49” rather than “4.94.”

II. Background

On February 19, 2004, Kentucky submitted to EPA a draft SIP revision for parallel processing to provide for the 10-year update to the original maintenance plans for five 1-hour ozone maintenance areas as required by section 175A(b) of the CAA. These five 1-hour ozone maintenance plan updates addressed the 1-hour ozone maintenance areas for Lexington, Edmonson, Owensboro, Paducah, and the Kentucky portion of the Huntington-Ashland area. Specific to the Lexington maintenance area, the proposed revision provides an update to the Lexington 1-Hour Ozone Maintenance Plan for the next 10 years, i.e., 2005 through 2015. This 10-year update for the Lexington Maintenance Area includes updated MVEBs for the year 2004 and establishes new MVEBs for the year 2015. The Commonwealth held a public hearing on these draft maintenance plan revisions on March 31, 2004. On August 24, 2004, the Commonwealth submitted to EPA a SIP revision providing the final 10-year updates for the 1-hour ozone maintenance plans of the Lexington, Edmonson, and Kentucky portion of the Huntington-Ashland Areas.

III. Analysis of the Submittal

The Commonwealth's August 24, 2004, final SIP revision includes a second 10-year maintenance plan for the Lexington maintenance area that indicates continued maintenance of the 1-hour ozone standard through 2015. In this submittal, Kentucky opted to use 1990 as the comparison year to demonstrate continued maintenance. While use of the 1990 emission inventory appears to demonstrate continued maintenance for the 1-hour ozone standard with regard to the volatile organic compound (VOC) precursor inventory, the use of the 1990 emission inventory does not appear to demonstrate continued maintenance for the 1-hour ozone standard with regard to the nitrogen oxide (NO_X) precursor inventory because the total NO_X emissions levels in 2000, 2004, and 2005 are higher than those in 1990. However, the revision includes new ozone precursor emission inventory for 2000 for Fayette and Scott counties which reflects updated emission controls applicable for the area.

In the September 4, 1992, EPA guidance document, entitled, “Procedures for Processing Requests to Redesignate Areas to Attainment,” EPA encourages the use of updated emission inventories to verify continued attainment. As the Commonwealth mentions in its submittal, the 2000 emission inventories are updated, and are being provided as a part of the August 24, 2004, final SIP revision. This area was attainment for the 1-hour ozone standard in 2000, so EPA believes that these emission inventories also indicate attainment for the area, and can be used for comparison purposes for demonstrating continued maintenance in the projected years of 2004, 2005, 2009, 2012, and 2015. The level of the projected emissions for all the projected years for both the NO_X and VOC precursors is below the level of emissions for these precursors in 2000. Therefore, EPA believes that this is a sufficient demonstration of continued maintenance for the 1-hour ozone standard for the Lexington area. Furthermore, this area is currently attainment for the more stringent 8-hour ozone standard. This rationale is consistent with the September 4, 1992, EPA Guidance memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment.”

The Commonwealth's August 24, 2004, final SIP revision also updates the MVEBs for the Lexington maintenance area for 2004, and establishes new MVEBs for 2015. Because EPA did not provide a separate notice regarding the adequacy of the 2015 MVEBs, EPA is taking the opportunity through this rulemaking to announce that it has determined that the 2015 MVEBs are adequate for use to determine transportation conformity. For more information on Lexington's Maintenance Plan revisions and EPA's detailed analysis of these revisions, please see the proposed rule published on April 23, 2004, at 69 FR 21983.

As part of this final approval, EPA is approving both the revisions to the 2004 MVEBs and the newly-established 2015 MVEBs for the Lexington Maintenance Area. Upon EPA approval of the revised 2004 and new 2015 MVEBs in this final rulemaking, the Lexington maintenance area must use the revised MVEBs for future transportation conformity determinations effective the date of publication of EPA's final approval of the MVEBs in the Federal Register . ( printed page 55751)

IV. Final Action

EPA is approving Kentucky's August 24, 2004, SIP revision pertaining to the Lexington maintenance area's 10-year update for its 1-hour ozone maintenance plan, and providing notice that it has determined the 2015 VOC and NO_X MVEBs to be adequate under the requirements of 40 CFR 93.118(e)(4). Additionally, through this action, EPA is approving the revised 2004 MVEBs and the newly-established 2015 MVEBs for the Lexington area. The revised 2004 MVEBs are 18.14 tons per day (tpd) for VOC and 27.36 tpd for NO_X; the 2015 MVEBs are 10.59 tpd for VOC and 13.27 tpd for NO_X. EPA is approving the aforementioned changes to Kentucky's SIP because they are consistent with Agency policy and guidance and meet all of the requirements of section 110 of the Clean Air Act. Also in this final action, EPA is correcting an error in the April 23, 2004, proposed rule on page 69 FR 21985. In Table 1, the safety margin value for the year 2012 is corrected to read, “4.49” rather than “4.94.”

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. 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 approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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.

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. 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 15, 2004. 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).)

Part 52 of chapter I, title 40, Code of Federal Regulations, is amended as follows:

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

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

2. Section 52.920(e), is amended by revising the entry for “Lexington Maintenance Plan” to read as follows: