Environmental Protection Agency (EPA).
Direct final rule.
Today's action consists of two distinct but related final rulemakings briefly characterized here and further discussed in the
This direct final rule is effective February 15, 2005, without further notice, unless EPA receives adverse comment by January 18, 2005. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Regional Material in EDocket (RME) ID No. R04–OAR–2004–
1. Federal eRulemaking Portal:
2. Agency Web site:
3. E-mail:
4. Fax: 404–562–9019.
5. Mail: “R04–OAR–2004–KY–0001,” 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.
6. Hand Delivery or Courier: Deliver your comments to: Rosymar De La Torre Colón, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division 12th floor, 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.
Rosymar De La Torre Colón, 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, (404) 562–8965,
In addition to the publicly available docket materials available for inspection electronically in Regional Material in EDocket, and the hard copy available at the Regional Office, which are identified in the
The air quality maintenance plan is a requirement of the 1990 CAA for nonattainment areas that come into compliance with the national ambient air quality standard (NAAQS) to assure their continued maintenance of that standard. Eight years after redesignation to attainment, section 175A(b) of the CAA requires the state to submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the ten years following the initial ten-year period (this is known as the second 10-year plan). This second 10-year plan updates the original 10-year 1-hour ozone maintenance plan for the next 10-year period.
EPA designated Edmonson County, Kentucky as marginal nonattainment for the 1-hour ozone NAAQS on November 6, 1991 (56 FR 56694), effective on January 6, 1992. EPA approved the redesignation of Edmonson County to attainment for the 1-hour ozone standard, on November 3, 1994 (60 FR 47092), effective on January 3, 1995. In this same rulemaking, EPA also approved the Edmonson County's plan for maintaining the 1-hour ozone NAAQS for the time period 1994 through 2004.
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. Specific to the Edmonson County Maintenance Area, the draft revision provided an update to the Edmonson County 1-Hour Ozone Maintenance plan for the next 10 years,
While EPA can initiate the Adequacy process with a draft submittal, EPA cannot conclude this process until a final submittal is received. On August 24, 2004, Kentucky submitted to EPA a final SIP revision for the 10-year update to the original maintenance plans for three 1-hour ozone maintenance areas as required by section 175A(b) of the CAA. This final submittal includes the updated MVEBs for the year 2004 and establishes new MVEBs for the year 2015.
The Commonwealth's August 24, 2004, final SIP revision includes a second 10-year maintenance plan for the Edmonson County Maintenance Area, and 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
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 projected years for both the NO
EPA is processing the Edmonson County portion of Kentucky's SIP revision and is approving the Edmonson County 10-year update for its 1-hour ozone maintenance plan, including approval of the updated 2004 MVEBs and the newly-established 2015 MVEBs, because EPA has determined that the Plan complies with the requirements of Section 175A of the CAA. The following two tables provide emissions data and projections calculated, using MOBILE6.2, for the ozone precursors, VOC and NO
Under 40 CFR 93.101, the term
The emissions from point, area, nonroad, and mobile sources in 2000 equal 1.89 tons per day (tpd) of VOC for Edmonson County. Projected VOC emissions out to the year 2015 equal 1.61 tpd of VOC. The available safety margin for VOC is calculated to be the difference between these amounts or, in this case, 0.28 tpd of VOC for 2015. By this same method, 0.79 tpd (
As mentioned previously, the Commonwealth's August 24, 2004, final SIP revision also updates the MVEBs for the Edmonson County 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. See section V of this rulemaking for more information on EPA's Adequacy Process and determination for this area.
Maintenance plans and other control strategy SIPs create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. 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 MVEBs in the SIP and how to revise the MVEBs.
Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (
In this revision, Kentucky used MOBILE6.2 to update the Edmonson County MVEBs for 2004, in addition to establishing MVEBs for VOC and NO
For the 2004 and 2015 MVEBs, the values for a given year are equal to the on-road mobile source projected level of emissions for that year (
As part of this final approval, EPA is approving both the revisions to the 2004 MVEBs and the newly-established 2015 MVEBs for the Edmonson County Maintenance Area. Upon EPA approval of the revised 2004 and new 2015 MVEBs in this final rulemaking, the Edmonson maintenance area must use the revised and new MVEBs for future transportation conformity determinations, effective on the effective date of this direct final rulemaking.
Until a MVEB in a SIP submittal is approved by EPA, it cannot be used for transportation conformity purposes unless EPA makes an affirmative finding that the MVEBs contained therein are “adequate.” Once EPA affirmatively finds the submitted MVEBs adequate for transportation conformity purposes, those MVEBs can be used by State and Federal agencies in determining whether proposed transportation projects “conform” to the SIP even though EPA approval of the SIP revision containing those MVEBs has not yet been finalized. EPA's substantive criteria for determining “adequacy” of MVEBs in submitted SIPs are set out in 40 CFR 93.118(e)(4).
EPA's process for determining “adequacy” of MVEBs in submitted SIPs consists of three basic steps: public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs is set out in EPA's May 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance is incorporated into EPA's June 30, 2003, proposed rulemaking entitled “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes” (68 FR 38974). Additionally, 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.
The Edmonson County Maintenance Area's draft second 10-year maintenance plan submissions contained new proposed VOC and NO
EPA is approving Kentucky's August 24, 2004, SIP revision pertaining to the Edmonson County Maintenance Area's 10-year update for its 1-hour ozone maintenance plan, and is providing notice that it has determined the 2015 VOC and NO
The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 15, 2005, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.
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
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
The Congressional Review Act, 5 U.S.C. 801
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 February 15, 2005. 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. (
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *