Proposed Rule2023-08017
Air Plan Approval and Air Quality Designation; KY; Redesignation of the Kentucky Portion of the Louisville, KY-IN 2015 8-Hour Ozone Nonattainment Area to Attainment
Primary source
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Published
April 18, 2023
Issuing agencies
Environmental Protection Agency
Abstract
On September 6, 2022, the Commonwealth of Kentucky, through the Kentucky Energy and Environment Cabinet (Cabinet), Division of Air Quality (DAQ), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Kentucky portion (hereinafter referred to as the "Louisville, KY Area" or "Area") of the Louisville, Kentucky-Indiana, 2015 8-hour ozone nonattainment area (hereinafter referred to as the "Louisville, KY-IN Area") to attainment for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS or standards) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to approve the Commonwealth's plan for maintaining attainment of the 2015 8-hour ozone standard in the Louisville, KY-IN Area, including the regional motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO<INF>X</INF>) and volatile organic compounds (VOC) for the years of 2019 and 2035 for the Louisville, KY-IN Area, to incorporate the maintenance plan into the SIP, and to redesignate the Area to attainment for the 2015 8-hour ozone NAAQS. EPA previously approved the redesignation request and maintenance plan for the Indiana portion of the Louisville, KY-IN Area. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Area.
Full Text
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<title>Federal Register, Volume 88 Issue 74 (Tuesday, April 18, 2023)</title>
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[Federal Register Volume 88, Number 74 (Tuesday, April 18, 2023)]
[Proposed Rules]
[Pages 23598-23611]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08017]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R04-OAR-2022-0789; FRL-10888-01-R4]
Air Plan Approval and Air Quality Designation; KY; Redesignation
of the Kentucky Portion of the Louisville, KY-IN 2015 8-Hour Ozone
Nonattainment Area to Attainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On September 6, 2022, the Commonwealth of Kentucky, through
the Kentucky Energy and Environment Cabinet (Cabinet), Division of Air
Quality (DAQ), submitted a request for the Environmental Protection
Agency (EPA) to redesignate the Kentucky portion (hereinafter referred
to as the ``Louisville, KY Area'' or ``Area'') of the Louisville,
Kentucky-Indiana, 2015 8-hour ozone nonattainment area (hereinafter
referred to as the ``Louisville, KY-IN Area'') to attainment for the
2015 8-hour ozone National Ambient Air Quality Standards (NAAQS or
standards) and to approve a State Implementation Plan (SIP) revision
containing a maintenance plan for the Area. EPA is proposing to approve
the Commonwealth's plan for maintaining attainment of the 2015 8-hour
ozone standard in the Louisville, KY-IN Area, including the regional
motor vehicle emission budgets (MVEBs) for nitrogen oxides
(NO<INF>X</INF>) and volatile organic compounds (VOC) for the years of
2019 and 2035 for the Louisville, KY-IN Area, to incorporate the
maintenance plan into the SIP, and to redesignate the Area to
attainment for the 2015 8-hour ozone NAAQS. EPA previously approved the
redesignation request and maintenance plan for the Indiana portion of
the Louisville, KY-IN Area. EPA is also notifying the public of the
status of EPA's adequacy determination for the MVEBs for the Area.
DATES: Comments must be received on or before May 18, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0789 at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business
[[Page 23599]]
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). For additional submission methods, the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-8994. Ms. Sarah LaRocca can also be reached via electronic
mail at <a href="/cdn-cgi/l/email-protection#86eae7f4e9e5e5e7a8f5e7f4e7eec6e3f6e7a8e1e9f0"><span class="__cf_email__" data-cfemail="4824293a272b2b29663b293a2920082d3829662f273e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of EPA's Proposed Action
II. Background
III. Criteria for Redesignation
IV. Kentucky's SIP Submittal
V. EPA's Analysis of Kentucky's SIP Submittal
VI. EPA's Analysis of Kentucky's Proposed NO<INF>X</INF> and VOC
MVEBs
VII. EPA's Adequacy Determination for the Proposed NO<INF>X</INF>
and VOC MVEBs
VIII. Effect of EPA's Proposed Actions
IX. Proposed Actions
X. Statutory and Executive Order Reviews
I. Summary of EPA's Proposed Action
EPA is proposing to take the following separate but related actions
addressing the September 6, 2022, submittal: (1) to approve Kentucky's
plan for maintaining the 2015 ozone NAAQS (maintenance plan), including
the associated MVEBs for the Louisville, KY Area and incorporate the
plan into the SIP, and (2) to redesignate the Louisville, KY Area to
attainment for the 2015 8-hour ozone NAAQS. EPA is also notifying the
public of the status of EPA's adequacy determination for the MVEBs for
the Louisville, KY Area. The Louisville, KY-IN Area is composed of
Bullitt, Jefferson, and Oldham Counties in Kentucky, and Clark and
Floyd Counties in Indiana. These proposed actions are summarized below
and described in greater detail throughout this notice of proposed
rulemaking.
EPA is proposing to approve Kentucky's maintenance plan for its
portion of the Louisville, KY-IN Area as meeting the requirements of
section 175A (such approval being one of the Clean Air Act (CAA or Act)
criteria for redesignation to attainment status) and incorporate it
into the SIP. The maintenance plan is designed to keep the Louisville,
KY-IN Area in attainment of the 2015 8-hour ozone NAAQS through 2035.
The maintenance plan includes 2019 and 2035 MVEBs for NO<INF>X</INF>
and VOC for the Louisville, KY-IN Area for transportation conformity
purposes. EPA is proposing to approve these MVEBs and incorporate them
into the SIP.
EPA also proposes to determine that the Louisville, KY Area has met
the requirements for redesignation under section 107(d)(3)(E) of the
CAA. Accordingly, EPA is proposing to approve a request to change the
legal designation of Bullitt, Jefferson, and Oldham Counties in
Kentucky, as found at 40 CFR part 81, from nonattainment to attainment
for the 2015 8-hour ozone NAAQS.
EPA is also notifying the public of the status of EPA's adequacy
process for the MVEBs for the Louisville, KY-IN Area. The Adequacy
comment period began on September 14, 2022, with EPA's posting of the
availability of Kentucky's submission on EPA's Adequacy website
(<a href="https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa">https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa</a>). The Adequacy
comment period for these MVEBs closed on October 14, 2022. No comments,
adverse or otherwise, were received during the Adequacy comment period.
Please see Section VII of this notice of proposed rulemaking for
further explanation of this process and for more details on MVEBs.
In summary, this notice of proposed rulemaking is in response to
Kentucky's September 6, 2022, redesignation request and associated SIP
submission that addresses the specific issues summarized above and the
necessary elements described in section 107(d)(3)(E) of the CAA for
redesignation of the Kentucky portion of the Louisville, KY-IN Area to
attainment for the 2015 8-hour ozone NAAQS and the associated MVEBs.
II. Background
On October 1, 2015, EPA revised both the primary and secondary
NAAQS for ozone to a level of 0.070 parts per million (ppm) to provide
increased protection of public health and the environment. See 80 FR
65292 (October 26, 2015). The 2015 ozone NAAQS retains the same general
form and averaging time as the 0.075 ppm NAAQS set in 2008 but is set
at a more protective level. Under EPA's regulations at 40 CFR part 50,
the 2015 8-hour ozone NAAQS 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 0.070 ppm. See Appendix U
of 40 CFR part 50. This 3-year average is referred to as the design
value.
Upon promulgation of a new or revised ozone NAAQS, section 107(d)
of the CAA requires EPA to designate as nonattainment any area that is
violating the NAAQS (or that contributes to ambient air quality in a
nearby area that is violating the NAAQS). As part of the designations
process for the 2015 8-hour ozone NAAQS, the Louisville, KY-IN Area was
designated as a ``Marginal'' ozone nonattainment area, effective August
3, 2018. See 83 FR 25776 (June 4, 2018). Areas that were designated as
Marginal ozone nonattainment areas were required to attain the 2015 8-
hour ozone NAAQS no later than August 3, 2021, based on 2018, 2019, and
2020 monitoring data. See 40 CFR 51.1303. EPA reclassified the
Louisville, KY Area to Moderate on October 7, 2022, after failing to
attain by the attainment date.\1\ See 87 FR 60897 (October 7, 2022) and
40 CFR 81.318. The October 7, 2022, action requires Moderate areas to
attain the 2015 8-hour ozone NAAQS as expeditiously as practicable, but
no later than August 3, 2024, six years after the effective date of the
initial nonattainment designations. See 40 CFR 51.1303.
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\1\ EPA proposed to reclassify the Louisville, KY-IN Area as a
moderate nonattainment area on April 13, 2022. However, prior to
finalizing the reclassification, EPA redesignated the Indiana
portion of the Louisville, KY-IN Area to attainment for the 2015 8-
hour ozone NAAQS. See 87 FR 30129 (July 5, 2022). EPA finalized the
reclassification of the Kentucky portion of the Louisville, KY-IN
Area on October 7, 2022 (87 FR 60897).
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III. 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 EPA 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
[[Page 23600]]
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 for purposes of
redesignation 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 that 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 (hereinafter referred to as the
``Calcagni Memorandum'');
5. ``State Implementation Plan (SIP) Actions Submitted in Response
to Clean Air Act (CAA) 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 (hereinafter referred to as the ``Shapiro Memorandum'');
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 (hereinafter referred to as the ``Nichols Memorandum''); 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. Kentucky's SIP Submittal
On September 6, 2022, Kentucky requested that EPA redesignate the
Louisville, KY Area to attainment for the 2015 8-hour ozone NAAQS and
approve the associated SIP revision submitted on the same date
containing a maintenance plan for the Area. EPA's evaluation indicates
that the Louisville, KY Area meets the requirements for redesignation
as set forth in CAA section 107(d)(3)(E), including the maintenance
plan requirements under CAA section 175A and associated MVEBs. As a
result of these proposed findings, EPA is proposing to take the actions
summarized in Section I of this notice. EPA's analysis and rationale
for this proposal is provided below.
V. EPA's Analysis of Kentucky's SIP Submittal
As stated above, in accordance with the CAA, EPA proposes to
approve the 2015 8-hour ozone NAAQS maintenance plan, including the
associated MVEBs, and incorporate it into the Kentucky SIP, and to
redesignate the Louisville, KY Area to attainment for the 2015 8-hour
ozone NAAQS. The five redesignation criteria provided under CAA section
107(d)(3)(E) are discussed in greater detail for the Area in the
following paragraphs of this section.
Criterion (1)--The Louisville, KY-IN Area Has Attained the 2015 8-Hour
Ozone NAAQS
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the area has attained the applicable
NAAQS. See CAA section 107(d)(3)(E)(i). For ozone, an area may be
considered attaining the 2015 8-hour ozone NAAQS if it meets the 2015
8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.19 and
Appendix U of part 50, based on three complete, consecutive calendar
years of quality-assured air quality monitoring data. To attain the
2015 8-hour ozone NAAQS, the 3-year average of the annual fourth
highest daily maximum 8-hour average ozone concentrations measured at
each monitor within an area must not exceed 0.070 ppm. Based on the
data handling and reporting convention described in 40 CFR part 50,
Appendix U, the 2015 8-hour ozone NAAQS are attained if the design
value is 0.070 ppm or below. The data must be collected and quality-
assured in accordance with 40 CFR part 58 and recorded in EPA's 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 complete, quality-assured, and certified ozone
monitoring data from monitoring stations in the Louisville, KY-IN Area
for the 2015 8-hour ozone NAAQS for 2019 through 2021 and has
determined that the design values for each monitor in the Louisville,
KY-IN Area are equal to or less than the standard of 0.070 ppm for that
time period. Based on this air quality monitoring data, EPA is
proposing to determine that the Louisville, KY-IN Area has attained the
2015 8-hour ozone NAAQS. The fourth-highest 8-hour ozone values at each
monitor for 2019 through 2021 and the 3-year averages of these values
(i.e., design values), are summarized in Table 1, below.
[[Page 23601]]
Table 1--2019-2021 Ozone Concentrations for the Louisville, KY-IN Area
[ppm] \2\
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Annual 4th-highest daily maximum 8-hr ozone Design value
concentration ---------------
AQS site code County and state ------------------------------------------------
2019 2020 2021 2019-2021
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21-029-0006................... Bullitt, KY..... 0.063 0.065 0.065 0.064
21-185-0004................... Oldham, KY...... 0.065 0.061 0.065 0.063
21-111-0067................... Jefferson, KY... 0.068 0.071 0.069 0.069
21-111-0051................... Jefferson, KY... 0.065 0.063 0.067 0.065
21-111-0080................... Jefferson, KY... 0.064 0.068 0.073 0.068
18-019-0008................... Clark, IN....... 0.064 0.062 0.063 0.063
18-043-1004................... Floyd, IN....... 0.063 0.066 0.064 0.064
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The highest 3-year design value for 2019-2021 for the Louisville,
KY-IN Area is 0.069 ppm at the Jefferson County, Kentucky site (21-111-
0067),\3\ which is below the NAAQS. EPA will not take final action to
approve the redesignation of the Kentucky portion of the Louisville KY-
IN Area if the 3-year design value exceeds the NAAQS prior to EPA
finalizing the redesignation. Preliminary 2022 ozone monitoring data
currently indicates attaining 2022 design values for the Louisville,
KY-IN Area. As discussed in more detail below, Kentucky has committed
to continue monitoring in this Area in accordance with 40 CFR part 58.
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\2\ Final air quality design values for all criteria pollutants,
including ozone, are available at <a href="https://www.epa.gov/aqs">https://www.epa.gov/aqs</a>.
\3\ The design value for an area is the highest 3-year average
of the annual fourth-highest daily maximum 8-hour concentration
recorded at any monitor in the area.
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Criterion (2)--Kentucky Has a Fully Approved SIP Under Section 110(k)
for the Louisville, KY Area; and Criterion (5)--Kentucky Has Met All
Applicable Requirements Under Section 110 and Part D of Title I of the
CAA
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the state has met all applicable
requirements under section 110 and part D of title I of the CAA, see
CAA section 107(d)(3)(E)(v), and that the state has a fully approved
SIP under section 110(k) for the area, see CAA section
107(d)(3)(E)(ii). EPA proposes to find that Kentucky has met all
applicable SIP requirements for the Louisville, KY Area under section
110 of the CAA (general SIP requirements) for purposes of
redesignation. Additionally, EPA proposes to find that Kentucky has met
all applicable SIP requirements for purposes of redesignation under
part D of title I of the CAA in accordance with section 107(d)(3)(E)(v)
and proposes to determine that the SIP is fully approved with respect
to all requirements applicable for purposes of redesignation in
accordance with section 107(d)(3)(E)(ii). In making these proposed
determinations, EPA ascertained which requirements are applicable to
the Area and, if applicable, that they are fully approved under section
110(k). SIPs must be fully approved only with respect to requirements
that were due prior to submittal of the complete redesignation request.
a. The Louisville, KY Area Has Met All Applicable Requirements Under
Section 110 and Part D of the CAA
General SIP requirements. 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 (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)(i)(I) of the Act, referred to as the ``good
neighbor provision'' or the ``interstate transport provision,''
requires that SIPs contain 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 interstate transport of air pollutants. The
section 110(a)(2)(D)(i)(I) 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 classification 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, EPA does not believe that the CAA's interstate
transport requirements should be construed to be applicable for
purposes of redesignation.
In addition, EPA believes other section 110 elements that are
neither connected with nonattainment plan submissions nor linked with
an area's attainment status are not applicable requirements for purpose
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 61 FR 53174 (October 10, 1996) and 62 FR
24826 (May 7, 1997) (Reading, Pennsylvania, proposed and final
rulemakings); 61 FR 20458 (May 7, 1996) (Cleveland-Akron-Loraine, Ohio,
final rulemaking); and 60 FR 62748, (December 7, 1995) (Tampa, Florida,
final rulemaking)). See also 65 FR 37890 (June 19, 2000) (discussion on
this issue in Cincinnati, Ohio, redesignation) and 66 FR 50399 (October
19, 2001) (Pittsburgh, Pennsylvania, redesignation).
Title I, part D, applicable SIP requirements. Section 172(c) of the
CAA sets forth the basic requirements of attainment plans for
nonattainment areas that are required to submit them pursuant to
section 172(b). Subpart 2 of
[[Page 23602]]
part D, which includes section 182 of the CAA, establishes specific
requirements for ozone nonattainment areas depending on the area's
nonattainment classification. As provided in subpart 2, a Marginal
ozone nonattainment area must submit an emissions inventory that
complies with section 172(c)(3), but the specific requirements of
section 182(a) apply in lieu of the demonstration of attainment (and
contingency measures) required by section 172(c). See 42 U.S.C.
7511a(a). A Moderate area must meet the Marginal area requirements of
section 182(a) and additional requirements specific to Moderate (and
higher) areas under section 182(b), as well as the general requirements
of 172(c). A thorough discussion of the requirements contained in
sections 172(c) and 182 can be found in the General Preamble for
Implementation of Title I. See 57 FR 13498 (April 16, 1992).
Under its longstanding interpretation of the CAA, EPA has
interpreted section 107(d)(3)(E) to mean, as a threshold matter, that
the part D provisions which are ``applicable'' and which must be
approved in order for EPA to redesignate an area include only those
which came due prior to a state's submittal of a complete redesignation
request. See Calcagni Memorandum. See also Shapiro Memorandum; 60 FR
12459, 12465-66 (March 7, 1995) (Final Redesignation of Detroit-Ann
Arbor, Michigan); 68 FR 25418, 25424-27 (May 12, 2003) (Final
Redesignation of St. Louis, Missouri); and Sierra Club v. EPA, 375 F.
3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking
applying this interpretation and expressly rejecting Sierra Club's view
that the meaning of ``applicable'' under the statute is ``whatever
should have been in the plan at the time of attainment'' rather than
``whatever actually was in the plan and already implemented or due at
the time of attainment'').\4\ For the Louisville, KY Area, no section
182(b) Part D Moderate nonattainment area requirements for the 2015 8-
hour ozone standard were due at the time that Kentucky submitted its
redesignation request on September 6, 2022; therefore, these
requirements are not applicable for the purposes of redesignation. See
Section II, above (discussing the reclassification of the Louisville KY
Area to moderate on October 7, 2022). In addition, as discussed below,
several of the part D requirements under 182(a) are otherwise not
applicable for the purposes of redesignation and several of the
requirements have already been satisfied by the Commonwealth.
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\4\ Applicable requirements of the CAA that become due after 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 Calcagni Memorandum; CAA
section 175A(c).
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Section 182(a) Requirements. Section 182(a)(1) requires states to
submit a comprehensive, accurate, and current inventory of actual
emissions from sources of VOC and NO<INF>X</INF> emitted within the
boundaries of the ozone nonattainment area. This required submission
was due by August 3, 2020, for the Louisville, KY Area. See 40 CFR
51.1315(a). Kentucky provided an emissions inventory for the Area to
EPA in a December 22, 2021, SIP submission, and EPA approved the
emissions inventory in an action published on September 30, 2022. See
87 FR 59320.
Under section 182(a)(2)(A), states with ozone nonattainment areas
that were designated prior to the enactment of the 1990 CAA amendments
were required to submit, within six months of classification, all rules
and corrections to existing VOC reasonably available control technology
(RACT) rules that were required under section 172(b)(3) of the CAA (and
related guidance) prior to the 1990 CAA amendments. The Area is not
subject to the section 182(a)(2) RACT ``fix up'' requirement for the
2015 ozone NAAQS because it was designated as nonattainment for this
standard after the enactment of the 1990 CAA amendments. Furthermore,
the Commonwealth complied with this requirement under the 1-hour ozone
NAAQS for the Jefferson County, Kentucky, portion of the Louisville,
KY-IN Area. See 59 FR 32343 (June 23, 1994).
Section 182(a)(2)(B) requires each state with a Marginal or higher
ozone nonattainment area classification that implemented, or was
required to implement, a vehicle inspection and maintenance (I/M)
program prior to the 1990 CAA amendments to submit a SIP revision
providing for an I/M program no less stringent than that required prior
to the 1990 amendments or already in the SIP at the time of the
amendments, whichever is more stringent. The Louisville, KY Area is not
subject to the section 182(a)(2)(B) requirement because the Area was
designated as nonattainment for the 2015 8-hour ozone standard after
the enactment of the 1990 CAA amendments.
Regarding the permitting and offset requirements of section
182(a)(2)(C) and section 182(a)(4), Kentucky currently has a fully
approved part D NSR program in place. However, EPA has 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 NAAQS without part D NSR, because PSD
requirements will apply after redesignation. A more detailed rationale
for this view is described in the Nichols Memorandum. Kentucky's PSD
program will become applicable in the Louisville, KY Area upon
redesignation to attainment.
Section 182(a)(3) requires states to submit periodic inventories
and emissions statements. Section 182(a)(3)(A) requires states to
submit a periodic inventory every three years. As discussed below in
the section of this notice titled Verification of Continued Attainment,
the Commonwealth will continue to update its emissions inventory at
least once every three years. Under section 182(a)(3)(B), each state
with an ozone nonattainment area must submit a SIP revision requiring
emissions statements to be submitted to the state by certain sources
within that nonattainment area. Kentucky provided a SIP revision to EPA
on October 16, 2020, addressing the section 182(a)(3)(B) emissions
statements requirements for Oldham and Bullitt Counties, and on April
26, 2022, EPA published a final rule approving that SIP revision. See
87 FR 24429 (April 26, 2022). Kentucky provided a SIP revision to EPA
on August 12, 2020, addressing the section 182(a)(3)(B) emissions
statements requirements for Jefferson County, and on March 9, 2022, EPA
published a final rule approving that SIP revision. See 87 FR 13177
(March 9, 2022).
Section 182(b) Requirements. Section 182(b) of the CAA, found in
subpart 2 of part D, establishes additional requirements for Moderate
(and higher) ozone nonattainment areas. As noted above, no section
182(b) moderate nonattainment area requirements for the 2015 8-hour
ozone standard, including RACT under section 182(b)(2), were due at the
time that Kentucky submitted its redesignation request on September 6,
2022; therefore, these requirements are not applicable for the purposes
of 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 that
are developed, funded, or approved 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
[[Page 23603]]
conformity). State transportation conformity SIP revisions must be
consistent with Federal conformity regulations relating to
consultation, enforcement, and enforceability that EPA promulgated
pursuant to its authority under the CAA.
EPA interprets the conformity SIP requirements \5\ as not applying
for the 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 Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)
(upholding this interpretation); see also 60 FR 62748 (December 7,
1995) (redesignation of Tampa, Florida).\6\
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\5\ 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 MVEBs that are established in control
strategy SIPs and maintenance plans.
\6\ Kentucky has an approved conformity SIP for the Louisville,
KY Area. See 75 FR 20780 (April 21, 2010).
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Thus, for the reasons discussed above, EPA proposes to find that
the Louisville, KY Area has satisfied all applicable requirements for
purposes of redesignation under section 110 and part D of title I of
the CAA.
b. The Louisville, KY Area Has a Fully Approved Applicable SIP Under
Section 110(k) of the CAA
EPA has fully approved the applicable Kentucky SIP for the
Louisville, KY Area under section 110(k) of the CAA for all
requirements applicable for purpose 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); and Wall v. EPA, 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) (including citations therein). Kentucky has adopted and
submitted, and EPA has fully approved at various times, provisions
addressing various SIP elements applicable for the ozone NAAQS. See 85
FR 33021 (June 1, 2020) and 85 FR 54507 (September 2, 2020). As
discussed above, EPA believes that the section 110 elements that are
neither connected with nonattainment plan submissions, nor linked to an
area's nonattainment status, are not applicable requirements for
purposes of redesignation and believes that Kentucky has met all Part D
requirements applicable for purpose of this redesignation.
Criterion (3)--The Air Quality Improvement in the Louisville, KY-IN
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
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the air quality improvement in the area
is due to permanent and enforceable reductions in emissions resulting
from implementation of the SIP, applicable Federal air pollution
control regulations, and other permanent and enforceable reductions.
See CAA section 107(d)(3)(E)(iii). EPA has preliminarily determined
that Kentucky has demonstrated that the observed air quality
improvement in the Louisville, KY-IN Area is due to permanent and
enforceable reductions in emissions resulting from Federal measures and
from state measures adopted into the SIP and is not the result of
unusually favorable weather conditions or the COVID-19 pandemic.\7\
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\7\ Kentucky provided average temperature data from 2001 to 2021
and precipitation data for 2001 to 2021 showing that meteorological
conditions were not unusually favorable during 2019 through 2021.
See section 2.C.iv of the Commonwealth's September 6, 2022,
redesignation request and SIP revision and the NOAA website for
further information. <a href="https://www.ncdc.noaa.gov/cag">https://www.ncdc.noaa.gov/cag</a>. Furthermore, the
Commonwealth explains that COVID-19 did not influence emissions for
a long enough timescale to affect the Louisville, KY-IN Area's
design value. The Commonwealth looked specifically at emissions data
from 2017 to 2019 to show that reductions within the state started
occurring before the COVID-19 pandemic. The monitoring data also
shows that the one-year 4th maximum 8-hour observations did not
dramatically change between 2019 and 2021. The Commonwealth looked
at the two largest NO<INF>X</INF> sources to further support these
claims and notes that the on-road mobile emissions and EGU emissions
dipped briefly at the start of the pandemic, but quickly recovered,
further supporting that permanent and enforceable measures are
responsible for the attaining 2019-2021 design value and that the
COVID-19 pandemic was not a factor in the Area's reduced ozone
levels. Lastly, the Commonwealth confirms with EPA that reductions
in monitored ozone levels can be contributed to permanent and
enforceable reductions rather than changes in meteorological
conditions or temporary reductions due to COVID-19.
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State measures adopted into the SIP and Federal measures enacted in
recent years have resulted in permanent emission reductions. Kentucky's
September 6, 2022, submittal identifies SIP-approved state measures,
some of which implement Federal requirements, that have been
implemented to date.\8\ Those measures specifically regulate cement
kilns and open burning, as well as a variety of other sources, as
explained in the following paragraphs.
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\8\ The District's regulatory authority for air pollution
control in Jefferson County is authorized through KRS Chapter 77.
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Cement Kilns. Kentucky adopted regulation 401 Kentucky
Administrative Regulation (KAR) 51:170 to regulate NO<INF>X</INF>
emissions from cement kilns, setting a limit of 6.6 lbs per ton of
clinker produced, averaged over a 30-day period. DAQ has also adopted
standards for kilns in the Louisville, KY Area.
Open Burning Bans. Kentucky first incorporated regulation 401 KAR
63:005 Open Burning into the Kentucky SIP in 1982, with the latest
revision to the regulation approved on October 17, 2007, and effective
November 16, 2007. See 72 FR 58759 (October 17, 2007). This regulation
prohibits most types of open burning from May through September of each
year in areas that have been or are currently in violation of the ozone
NAAQS within Kentucky. The Louisville Metro Air Pollution Control
District (District) similarly prohibits open fires in the Louisville
Metro area and also prohibits any open burning on any day designated by
the District as an Air Quality Alert Day, with certain public health
hazard exceptions.
Other Sources. Kentucky has regulations in Chapters 59 and 61 of
Title 401 of the KAR which limit NO<INF>X</INF> and VOC emissions for
new and existing sources in various source categories. Jefferson County
also regulates a variety of sources through regulations on existing and
new sources in Parts 6 and 7 of its regulations. Jefferson County
Regulation 6.42 specifically requires NO<INF>X</INF> and VOC-emitting
facilities at major NO<INF>X</INF>-emitting sources and major VOC-
emitting sources, respectively, to propose RACT standards and emissions
control technology as a source-specific SIP revision.
Additionally, Federal measures enacted in recent years have also
resulted in permanent emission reductions in the Louisville, KY Area.
The Federal measures that have been implemented include the following.
Tier 2 Emission Standards for Vehicles and Gasoline Sulfur
Standards. Implementation began in 2004 and as newer, cleaner cars
enter the national fleet, these standards continue to significantly
reduce NO<INF>X</INF> emissions.\9\
[[Page 23604]]
These standards require all passenger vehicles in any manufacturer's
fleet to meet an average standard of 0.07 grams of NO<INF>X</INF> per
mile. Additionally, in January 2006, the sulfur content of gasoline was
required to be on average 30 ppm which assists in lowering the
NO<INF>X</INF> emissions.\10\ EPA expects that these standards will
reduce NO<INF>X</INF> emissions from vehicles by approximately 74
percent, and approximately 86 percent for minivans, light trucks, and
small SUVs by 2030, translating to nearly 3 million tons annually by
2030.\11\
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\9\ EPA, Control of Air Pollution from New Motor Vehicles: Tier
2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control
Requirements. See 65 FR 6697 (February 10, 2000).
\10\ Id. at 6702 (discussing how lower sulfur content results in
less degradation of catalytic converters).
\11\ EPA, Regulatory Announcement, EPA420-F-99-051 (December
1999), available at: <a href="https://nepis.epa.gov/Exe/ZyPDF.cgi/P1001Z9W.PDF?Dockey=P1001Z9W.PDF">https://nepis.epa.gov/Exe/ZyPDF.cgi/P1001Z9W.PDF?Dockey=P1001Z9W.PDF</a>.
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Tier 3 Motor Vehicle Emission and Fuel Standards.<SUP>12</SUP>
Implementation began in 2017 and will continue to phase in through
2025.\13\ These standards set new vehicle emissions standards and lower
the allowed sulfur content of gasoline in order to reduce air pollution
from passenger cars and trucks. Tailpipe and evaporative emissions will
be reduced for passenger cars, light-duty trucks, medium-duty passenger
vehicles, and some heavy-duty vehicles. The Tier 3 vehicle standards
for light-duty vehicles, light-duty trucks, and medium-duty passenger
vehicles will be a fleet average standard of 0.03 gram of non-methane
organic gases (NMOG) + NO<INF>X</INF> per mile as measured on the
Federal Test Procedure (FTP), and a fleet average standard 0.05 gram of
NMOG + NO<INF>X</INF> per mile as measured on the Supplemental Federal
Test Procedure (SFTP). The Tier 3 vehicle standards for heavy-duty
pickup trucks and vans will be 0.178 gram per mile of non-methane
organic gases (NMOG) + NO<INF>X</INF> for Class 2b vehicles and 0.247
gram per mile of NMOG + NO<INF>X</INF> for Class 3 vehicles, as
measured on the FTP. This standard required Federal gasoline to meet an
annual average standard of 10 ppm of sulfur by January 1, 2017. The
Tier 3 tailpipe standards for light-duty vehicles will reduce the fleet
average standards for the sum of NMOG and NO<INF>X</INF>, NMOG +
NO<INF>X</INF>, by approximately 80 percent from the current fleet
average standards, and will reduce the per-vehicle particulate matter
(PM) standards by 70 percent. The Tier 3 program for heavy-duty
vehicles will reduce the fleet average standards for NMOG +
NO<INF>X</INF> and PM by approximately 60 percent from the current
fleet average standards. The Tier 3 program is also reducing the
evaporative VOCs by approximately 50 percent from the current
standards, and these standards apply to all light-duty and on-road
gasoline-powered heavy-duty vehicles.
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\12\ In its submittal, Kentucky refers to this as the Tier 3
Emission Standards for Vehicles and Gasoline Sulfur Standards.
\13\ See 79 FR 23414 (April 28, 2014).
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Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel
Sulfur Control Requirements.<SUP>14</SUP> EPA issued this rule in 2001.
See 66 FR 5002 (January 18, 2001). This rule includes standards
limiting the sulfur content of diesel fuel, which went into effect in
2004. A second phase took effect in 2007, which further reduced the
highway diesel fuel sulfur content to 15 ppm, leading to additional
reductions in combustion NO<INF>X</INF> and VOC emissions.\15\ EPA
expects that this rule will achieve a 95 percent reduction in
NO<INF>X</INF> emissions from diesel trucks and buses and will reduce
NO<INF>X</INF> emissions by 2.6 million tons by 2030 when the heavy-
duty vehicle fleet is completely replaced with newer heavy-duty
vehicles that comply with these emission standards.\16\
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\14\ The Kentucky submittal refers to this as the Heavy-Duty
Gasoline and Diesel Highway Vehicle Standards & Ultra Low-Sulfur
Diesel Rule.
\15\ See 66 FR 5002 (January 18, 2001) (explaining that the new
emissions standards ``are based on the use of high-efficiency
catalytic exhaust emission control devices or comparably effective
advanced technologies. Because these devices are damaged by sulfur,
we are also reducing the level of sulfur in highway diesel fuel
significantly by mid-2006.'').
\16\ See id. at 5012.
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Control of Emissions of Air Pollution from Nonroad Diesel Engines
and Fuel.\17\ This rule was promulgated in 2004 and was phased in
between 2008 through 2015. See 69 FR 38957 (June 29, 2004). This rule
reduced the sulfur content in the nonroad diesel fuel and reduced
NO<INF>X</INF>, VOC, particulate matter, and carbon monoxide emissions.
This rule applies to diesel engines and fuel used in industries such as
construction, agriculture, industrial, and mining. EPA estimated that
this rule will decrease NO<INF>X</INF> emissions nationally by 738,000
tons by 2030. EPA estimates that this rule will cut NO<INF>X</INF> from
non-road diesel engines by approximately 90 percent.
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\17\ The Kentucky submittal refers to this rule as Tier 4
Nonroad Engine Standards.
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National Greenhouse Gas (GHG) Emission Standards for Passenger Cars
and Light Trucks. In 2010 and 2012, EPA issued rulemakings for Federal
GHG and fuel economy standards that apply to light-duty cars and trucks
in model years 2012-2016 (phase 1) and 2017-2025 (phase 2).\18\ The
final standards are projected to result in an average industry fleet-
wide level of 163 grams/mile in carbon dioxide which is equivalent to
54.5 miles per gallon if achieved exclusively through fuel economy
improvements. The fuel economy standards result in less fuel being
consumed and, therefore, slightly less VOC emissions released.
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\18\ Final Rule for Model Year 2012-2016 Light Duty Vehicle and
Greenhouse Gas Emission Standards and Corporate Average Fuel Economy
Standards, 75 FR 25324 (May 7, 2010); and Final Rule for 2017 and
Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and
Corporate Average Fuel Economy Standards, 77 FR 62624 (October 15,
2012).
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EPA issued the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule
on March 20, 2020, as an update to Phase 2. This new standard sets fuel
economy and CO<INF>2</INF> standards that increase 1.5 percent in
stringency each year from model years 2021 through 2026 and applies to
passenger cars and light trucks. On February 8, 2021, the D.C. Circuit
issued an order granting the Federal Government's motion to stay
litigation over the SAFE Vehicles Rule (Union of Concerned Scientists
v. NHTSA, Case No. 19-1230 (D.C. Cir.)).
On December 30, 2021, EPA published the Revised 2023 and Later
Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards
(Revised 2023 GHG Standards). See 86 FR 74434. The Revised 2023 GHG
Standards revised, and made more stringent, the GHG standards in each
model year from 2023 through 2026.\19\ The action also includes
temporary targeted flexibilities to address the lead time of the final
standards and to incentivize the production of vehicles with zero and
near-zero emissions technology and EPA made technical amendments to
clarify and streamline regulations. These standards will result in a
reduction in GHG emissions. They will also result in a net reduction in
NO<INF>X</INF> emissions by 2050.
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\19\ The Revised 2023 GHG Standards revised GHG standards to be
more stringent than those from in the ``The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger
Cars and Light Trucks,'' which had previously been stayed by the
D.C. Circuit. See Order, Union of Concerned Scientists v. NHTSA, No.
19-1230 (D.C. Cir. Feb. 8. 2021)).
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National Emission Standards for Hazardous Air Pollutants from Coal-
and Oil-Fired Electric Utility Steam Generating Units and Standards of
Performance for Fossil-Fuel-Fired Electric Utility, Industrial-
Commercial-Institutional, and Small Industrial-Commercial-Institutional
Steam Generating Units.<SUP>20</SUP> The Mercury and Air Toxics
Standard (MATS) and the new source performance standard
[[Page 23605]]
(NSPS) were published in 2012. See 77 FR 9304 (February 16, 2012). MATS
was promulgated to reduce emissions of heavy metals, including mercury
(Hg), arsenic (As), chromium (Cr), and nickel (Ni); and acid gases,
including hydrochloric acid (HCl) and hydrofluoric acid (HF) from new
and existing coal and oil-fired electric utility steam generating units
(EGUs). The MATS compliance date for new sources was April 16, 2012,
and April 16, 2015, for existing sources.
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\20\ Kentucky's submittal refers to these as Utility Mercury Air
Toxics Standards (MATS) and New Source Performance Standards (NSPS).
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National Emission Standards for Hazardous Air Pollutants (NESHAPs)
for Major Sources: Industrial, Commercial, and Institutional Boilers
and Process Heaters; National Emissions Standards for Hazardous Air
Pollutants for Stationary Reciprocating Internal Combustion
Engines.<SUP>21</SUP> The NESHAP for industrial, commercial, and
institutional boilers (40 CFR part 63 subpart DDDDD) and the NESHAP for
Reciprocating Internal Combustion Engines (RICE) (40 CFR part 63
subpart ZZZZ) are projected to reduce VOC emissions. The former applies
to boiler and process heaters located at major sources of hazardous air
pollutants (HAPs) that burn natural gas, fuel oil, coal, biomass,
refinery gas, or other gas and had a compliance deadline of January 31,
2016. The latter applies to existing, new, or reconstructed stationary
RICE located at major or area sources of HAPs, excluding stationary
RICE being tested at a stationary RICE test cell, and has various
compliance dates from August 16, 2004, to October 19, 2013, depending
on the type of source and date of construction or reconstruction.
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\21\ The Kentucky submittal refers to these as the Boiler and
Reciprocating Internal Combustion Engine (RICE) National Emissions
Standards for Hazardous Air Pollutants (NESHAP).
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Nonroad Spark-Ignition Engines and Recreational Engines Standards.
On November 8, 2002 (67 FR 68242), EPA adopted emission standards for
large spark-ignition engines such as those used in forklifts and
airport ground service equipment; recreational vehicles such as off-
highway motorcycles, all-terrain vehicles, and snowmobiles; and
recreational marine diesel engines. These emission standards were
phased in from model year 2004 through 2012. When fully implemented by
2030, EPA estimates an overall 75 percent reduction in VOC emissions
and an 82 percent reduction in NO<INF>X</INF> emissions. These controls
reduce ambient concentrations of ozone, carbon monoxide, and fine
particulate matter.
Category 3 Marine Diesel Engine Standards. On April 30, 2010 (75 FR
22896), EPA issued emission standards for marine compression-ignition
engines at or above 30 liters per cylinder. Tier 2 emission standards
applied beginning in 2011 and are expected to result in a 15 to 25
percent reduction in NO<INF>X</INF> emissions from these engines. Final
Tier 3 emission standards applied beginning in 2016 and are expected to
result in approximately an 80 percent reduction in NO<INF>X</INF> from
these engines.
Transport Rulemakings. In any given location, ozone pollution
levels are impacted by a combination of background ozone concentration,
local emissions, and emissions from upwind sources resulting from ozone
transport. Downwind states' ability to meet health-based air quality
standards such as the NAAQS may be impacted by the transport of ozone
pollution across state borders. See, e.g., 87 FR 20036 (April 6, 2022).
EPA acknowledges the historical account in Kentucky's September 6,
2022, submittal of national interstate transport rules and associated
NO<INF>X</INF> ozone season trading programs \22\ that addressed
interstate transport for previous 1979 1-hour, 1997 8-hour, and the
2008 8-hour ozone NAAQS. These programs have provided some benefits in
the form of NO<INF>X</INF> ozone season emission reductions for certain
sources in the Commonwealth and regionally.
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\22\ Kentucky's September 6, 2022, redesignation request
identifies the following rules: October 27, 1998, NO<INF>X</INF> SIP
Call (63 FR 57356); 2005 Clean Air Interstate Rule (CAIR) (70 FR
25162); 2011 Cross-State Air Pollution Rule (CSAPR) (76 FR 48208);
and 2016 CSAPR Update (81 FR 74504). The NO<INF>X</INF> SIP Call
(including the NO<INF>X</INF> Budget Trading Program) and CAIR were
established to reduce NO<INF>X</INF> ozone season emissions from
EGUs and large non-EGUs for the 1-hour 1979 and 8-hour 1997 ozone
standards. See 67 FR 17624 (April 11, 2002), 74 FR 54755 (October
23, 2009) and 72 FR 56623 (October 4, 2007). The NO<INF>X</INF> SIP
call NO<INF>X</INF> Budget trading program provided NO<INF>X</INF>
emission reduction for EGUs and non-EGUs for older ozone NAAQS.
Kentucky's redesignation request is not relying on this the
NO<INF>X</INF> SIP Call NO<INF>X</INF> budget trading program for
the purpose of demonstrating permanent and enforceable measures that
attribute to the demonstration of attainment for the current and
more stringent 2015 8-hour ozone standard. Kentucky's redesignation
request is also not relying on CAIR to demonstrate attainment of the
2015 ozone NAAQS for the Louisville KY-IN Area and explicitly states
that NO<INF>X</INF> reductions achieved as a result of CAIR are not
reflected in the emissions inventory and projections for the
Kentucky portion of the Louisville KY-IN Area. EPA notes that the
CAIR and the NO<INF>X</INF> SIP Call NO<INF>X</INF> Budget Trading
programs are no longer federally enforceable due to subsequent NAAQS
interstate transport obligations and legal challenges (North
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008)). However, the
Commonwealth still has ongoing NO<INF>X</INF> SIP call obligations
pursuant to 40 CFR 51.121.
The group of CSAPRs addressed the 1997 ozone and
PM<INF>2.5</INF> standards, 2006 PM<INF>2.5</INF> and 2008 ozone
NAAQS. See 76 FR 48208 (August 8, 2011) and 81 FR 74504 (October 26,
2016). However, the NO<INF>X</INF> ozone season trading programs
have not been approved into the Kentucky SIP. On March 15, 2023, EPA
finalized a FIP for 23 states, including Kentucky, to address
interstate transport downwind air quality issues for the 2015 ozone
NAAQS. A pre-publication version of the final FIP can be found on
EPA's website. See <a href="https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs">https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs</a>. The final rule issues NO<INF>X</INF> emission
budgets for EGUs in 22 states to participate in an allowance-based
ozone season trading program beginning in 2023.
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EPA proposes to find that the improvements in air quality in the
Louisville, KY Area are due to real, permanent and enforceable
reductions in NO<INF>X</INF> and VOC emissions resulting from the
federal and SIP-approved state measures discussed above.
Criterion (4)--The Louisville, KY Area Has a Fully Approved Maintenance
Plan Pursuant to Section 175A of the CAA
For redesignating a nonattainment area to attainment, the CAA
requires EPA to determine that the area has a fully approved
maintenance plan pursuant to section 175A of the CAA. See CAA section
107(d)(3)(E)(iv). In conjunction with its request to redesignate the
Louisville, KY Area to attainment for the 2015 8-hour ozone NAAQS,
Kentucky submitted a SIP revision to provide for the maintenance of the
2015 8-hour ozone NAAQS for at least 10 years after the effective date
of redesignation to attainment. EPA has made the preliminary
determination that this maintenance plan meets the requirements for
approval under section 175A of the CAA.
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.
Pursuant to 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, the state must submit a revised maintenance plan
which demonstrates that attainment will continue to be maintained for
the remainder of the 20-year period following the initial 10-year
period. To address the possibility of future NAAQS violations, the
maintenance plan must contain contingency measures as EPA deems
necessary to assure prompt correction of any future 2015 8-hour ozone
violations. The Calcagni Memorandum provides further guidance on the
content of a maintenance plan, explaining that a maintenance plan
should address five requirements: the attainment emissions inventory,
maintenance demonstration, monitoring plan, verification of continued
attainment, and a contingency plan. As discussed more fully below, EPA
has
[[Page 23606]]
preliminarily determined that Kentucky's maintenance plan includes all
the necessary components and is thus proposing to approve it as a
revision to the Kentucky SIP.
b. Attainment Emissions Inventory
As discussed above, the Louisville, KY-IN Area has an attaining
design value for the 2015 8-hour ozone NAAQS based on quality-assured
monitoring data for the 3-year period from 2019-2021.\23\ The
Louisville, KY-IN Area's preliminary 2020-2022 design value currently
indicates that the area will likely continue to attain the 2015 ozone
NAAQS. Kentucky selected 2019 as the base year (i.e., attainment
emissions inventory year) for developing a comprehensive emissions
inventory for NO<INF>X</INF> and VOC, from which projected emissions
could be developed for 2025, 2030, and 2035. The attainment inventory
identifies a level of emissions in the Area that is sufficient to
attain the 2015 8-hour ozone NAAQS. Kentucky began development of the
attainment inventory by first generating a baseline emissions inventory
for the Area. The 2019 base year emissions were projected to 2035 for
EGU point sources, non-EGU point sources, area sources, non-road mobile
sources, and on-road mobile sources. The Commonwealth projected summer
day emission inventories using projected rates of growth in population,
traffic, economic activity, and other parameters. In addition to
comparing the final year of the plan (2035) to the 2019 base year,
Kentucky compared interim years to the baseline to demonstrate that
these years are also expected to show continued maintenance of the 2015
8-hour ozone standard.
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\23\ Final air quality design values for all criteria
pollutants, including ozone, are available at <a href="https://www.epa.gov/aqs">https://www.epa.gov/aqs</a>. These design values are calculated in accordance with 40 CFR
part 50.
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The emissions inventory is composed of four major types of sources:
Point, non-point, on-road, and non-road mobile. Complete descriptions
of how the Commonwealth developed these inventories are located in
Appendices A, B, C, and D of the September 6, 2022, SIP submittal.
Point Sources
For point sources, Kentucky developed the 2019 attainment year
inventory using emissions collected by the District and the Division
directly for all sources, with the exception of airports and railyards,
which were developed using the 2017 NEI.
To calculate tons per ozone season/tons per summer day (tpsd)
emissions, Kentucky used two methods, depending on whether a source
reported seasonal operations or annual operations. With respect to
point sources in the Louisville, KY Area that reported seasonal
operations, Kentucky used that seasonal data to calculate summer
emissions by dividing by 92 days (for the summer months of June, July
and August). With respect to sources reporting annual data, Kentucky
calculated tons per summer day emissions were by dividing annual
emissions by four and then by the 92 days of summer.\24\
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\24\ This calculation method for estimating summer day emissions
is supported by the fact that the average summer (June, July, and
August) emissions from these point sources were estimated to be
approximately 24.6 to 26.3 percent of the annual total. Further
supporting this estimation method, a review of data on monthly
flights from the Louisville International Airport indicates that
flights in June, July, and August made up almost precisely one
quarter of total annual flights (25.1 percent).
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In order to develop projected year emissions, Kentucky used EPA's
2016v2 modeling platform. The 2016v1 emissions modeling platform is a
product from the National Emissions Inventory Collaborative, a
collaboration between state and regional air agencies, EPA, and Federal
Land Management agencies, and includes a full suite of base year (2016)
and projection year (2023 and 2028) inventories, ancillary emission
data, and scripts and software for preparing the emissions for air
quality modeling. The 2016v2 emissions modeling platform was developed
by EPA as an update to the 2016v1 platform because new data, model
versions, and methods became available following the release of
2016v1.\25\ In addition, 2016v2 makes use of a new inventory method for
solvents, includes minor corrections to the wildfire inventory, and
corrects for double counting of the airport emissions. The commercial
marine vessel and rail inventories are consistent with the 2016v1
inventories. The 2016v2 platform includes emissions for the years 2016,
2023, 2026, and 2032. Summer day emissions were determined by using
county monthly emissions for 2023, 2026, and 2032 for June through
August each year from 2016v2 Platform reports, by category within each
county for each pollutant, and divided by 92 days to calculate tons per
summer day, which was then used to interpolate emissions for 2025,
2030, and 2035 using Microsoft Excel's TREND function.\26\
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\25\ The 2016 v2 platform incorporates emissions based on
MOVES3, the 2017 NEI nonpoint inventory, the Western Regional Air
Partnership oil and gas inventory, and updated inventories for
Canada and Mexico.
\26\ See page 15 of Louisville's September 6, 2022, submittal.
---------------------------------------------------------------------------
Non-Point Sources
For non-point sources, the 2019 attainment year inventory was
developed using the 2017 NEI and with future year inventories from the
EPA 2016v2 modeling platform and Microsoft TREND Function (linear
regression). The 2019 emissions were interpolated based on 2017 NEI
emissions and 2023, 2028, and 2032 projected emissions.\27\
---------------------------------------------------------------------------
\27\ Per EPA guidance, the non-point emissions inventory did not
include biogenic sources and fires. See EPA, Emissions Inventory
Guidance for Implementation of Ozone and Particulate Matter National
Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations
(May 2017) at 42, 48, 57, available at <a href="https://www.epa.gov/sites/default/files/2017-07/documents/ei_guidance_may_2017_final_rev.pdf">https://www.epa.gov/sites/default/files/2017-07/documents/ei_guidance_may_2017_final_rev.pdf</a>.
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EPA's 2016v2 was used to develop non-point projected year emissions
in the same manner as described above for point sources.
On-Road Sources
The 2019 on-road emissions in the Kentucky submittal and all
projected years inventories were developed using the most recent
information from the travel demand model (TDM) designed by Kentuckiana
Regional Planning and Development Agency (KIPDA) and data obtained from
EPA MOVES3 (Motor Vehicle Emissions Simulator).\28\ KIPDA is the
metropolitan planning organization for the Louisville, KY-IN area. This
updated data for mobile source emissions is located in Appendix B to
Kentucky's submittal, available in the docket for this proposed action.
---------------------------------------------------------------------------
\28\ See the Response to Comment and Statement of Consideration
documents included in Appendix N of Kentucky's submittal.
---------------------------------------------------------------------------
Non-Road Sources
Some non-road mobile emissions in the U.S. are from the non-road
equipment segment (i.e., agricultural equipment, construction
equipment, lawn and garden equipment, and recreational vehicles such as
boats and jet-skis). For non-road sources, the 2019 attainment year
inventory was developed using the 2017 NEI and with future year
inventories from the EPA 2016v2 modeling platform and Microsoft TREND
Function. The 2019 emissions were interpolated based on 2017 NEI
emissions and 2023, 2028, and 2032 projected emissions. EPA's 2016v2
was used to develop non-road projected year emissions in the same
manner as described above for point sources.
The 2019 base year inventory for the Area, as well as the projected
[[Page 23607]]
inventories for other years, were developed consistent with EPA
guidance and are summarized in Tables 2 and 3 of the following
subsection discussing the maintenance demonstration.
c. Maintenance Demonstration
The redesignation request includes a maintenance plan which
includes the following features:
(i) Shows compliance with and maintenance of the 2015 8-hour ozone
NAAQS by providing information to support the demonstration that
current and future emissions of NO<INF>X</INF> and VOC remain at or
below 2019 emissions levels.
(ii) Uses 2019 as the attainment year and includes future emissions
inventory projections for 2025, 2030, and 2035. The 2019 emissions were
calculated by linear interpolation between 2017 and 2023. Emissions for
2025, 2030, and 2035 were calculated by linear interpolation using
2023, 2026 and 2032.\29\
---------------------------------------------------------------------------
\29\ All three years of projected emissions were used to
interpolate/extrapolate for the inventory; however, using the two
closest years (e.g., 2023 and 2026 to interpolate 2025), was
evaluated as an alternative but resulted in less than one ton per
summer day difference in NO<INF>X</INF> projections each year except
2035, where use of 2026 and 2032 alone resulted in a greater drop
than use of all three years. Use of all three years was retained as
the more conservative approach (i.e., an approach that produced
higher projected emissions).
---------------------------------------------------------------------------
(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, NO<INF>X</INF> and VOC MVEBs were established for the last
year (2035) of the maintenance plan as well as for the base year of
2019 (see Section VI, below).\30\
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\30\ Kentucky interpolated 2019 emissions using the TREND
function based on the 2017 NEI emissions and 2023, 2028, and 2032
projected emissions. Emissions from 2017 as well as projections from
all future years were chosen to interpolate 2019 by using just the
two closest years (2017 and 2023).
---------------------------------------------------------------------------
(iv) Provides actual (2019) and projected emissions inventories, in
tpsd, for the Louisville, KY Area, as shown in Tables 2 and 3, below.
Table 2--Actual and Projected Average Summer Day NOX Emissions for the
Louisville, KY Area
[tpsd]
------------------------------------------------------------------------
Source 2019 2025 2030 2035
------------------------------------------------------------------------
Point............................... 34.04 29.22 29.09 28.97
Non-point........................... 7.62 6.04 5.94 5.84
On-road............................. 25.31 14.22 11.08 10.26
Non-road............................ 4.00 3.12 2.91 2.69
-----------------------------------
Total........................... 70.97 52.60 49.02 47.76
------------------------------------------------------------------------
Table 3--Actual and Projected Average Summer Day VOC Emissions for the
Louisville, KY Area
[tpsd]
------------------------------------------------------------------------
Source 2019 2025 2030 2035
------------------------------------------------------------------------
Point............................... 33.47 23.42 23.61 23.80
Non-point........................... 37.11 31.92 32.40 32.89
On-road............................. 10.28 5.39 3.94 3.46
Non-road............................ 4.72 4.33 4.31 4.28
-----------------------------------
Total........................... 85.58 65.06 64.26 64.43
------------------------------------------------------------------------
Tables 2 and 3 summarize the 2019 and future projected emissions of
NO<INF>X</INF> and VOC in the Louisville, KY Area. In situations where
local emissions were the primary contributor to nonattainment, such as
the Louisville, KY Area, if the future projected emissions in the
nonattainment area remain at or below the baseline emissions in the
nonattainment area, then the related ambient air quality standard
should not be exceeded in the future. Kentucky has projected emissions
as described previously and determined that emissions in the
Louisville, KY Area will remain below those in the attainment year
inventory for the duration of the maintenance plan.
As discussed in Section VI, below, a safety margin is the
difference between the attainment level of emissions (from all sources)
and the projected level of emissions (from all sources) in the
maintenance plan. The attainment level of emissions is the level of
emissions during one of the years in which the area met the NAAQS.
Kentucky selected 2019 as the attainment emissions inventory year for
the Louisville, KY Area and calculated safety margins for 2035 (see
Table 4). Because the interim MVEB year of 2019 is also the base year
for the maintenance plan inventory, there is no safety margin for 2019;
therefore, no adjustments were made to the MVEBs for 2019. Kentucky, in
consultation with the Louisville, KY-IN Area transportation partners,
allocated a portion of the available safety margin to the 2035 MVEBs
for the entire Louisville, KY-IN Area.
Table 4--Safety Margins for the Louisville, KY-IN Area
[tpsd]
------------------------------------------------------------------------
Year NOX VOC
------------------------------------------------------------------------
2035.................................................. 30.17 23.18
------------------------------------------------------------------------
Kentucky has allocated 2.98 tpsd (9.9 percent) of the available
NO<INF>X</INF> safety margin to the 2035 NO<INF>X</INF> MVEB and 0.83
tpsd (3.6 percent) of the available VOC safety margin to the 2035 VOC
MVEB to allow for, among other things, unanticipated growth in VMT and
changes and uncertainty in vehicle mix assumptions that will influence
the emission estimations. After allocation of the available safety
margin, the remaining safety margin is 27.19 tpsd for NO<INF>X</INF>
and 22.35 tpsd for VOC. This allocation and the resulting available
[[Page 23608]]
safety margin for the Louisville, KY Area are discussed further in
section VI of this notice along with the MVEBs to be used for
transportation conformity purposes.
d. Monitoring Network
There are seven ozone monitors in the Louisville, KY-IN Area; five
in the Kentucky portion and two in the Indiana portion. Kentucky will
continue to operate the monitors in the Kentucky portion of the
Louisville, KY-IN Area in compliance with 40 CFR part 58 and has thus
addressed the requirement for the monitoring. EPA approved Kentucky's
2021 ambient air monitoring network plan on October 27, 2021.
e. Verification of Continued Attainment
Kentucky, through the Cabinet and District, has the legal authority
to enforce and implement the maintenance plan for the 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.
Additionally, under the Air Emissions Reporting Requirements (AERR)
(40 CFR part 51, subpart A), every three years the Cabinet and Division
are required to develop a comprehensive, annual, statewide emissions
inventory that is due twelve to eighteen months after the completion of
the inventory year. Both the Cabinet and Division will update the AERR
inventory every three years and will use the updated emissions
inventory to track the progress of maintenance of the NAAQS. The
maintenance plan states that emissions information will be compared to
the 2019 attainment year and the 2035 projected maintenance year
inventories to assess emission trends, as necessary, and to assure
continued compliance with the standard.
f. Contingency Measures in the Maintenance Plan
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 a 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).
In the September 6, 2022, submittal, Kentucky states that, at a
minimum, contingency measures must include all measures with respect to
the control of ozone contained in the SIP for the Area before the
redesignation, that all such measures are in effect for the Area, and
that DAQ and the District will continue to implement these measures.
The contingency measures in the maintenance plan include a two-tiered
triggering mechanism to determine when contingency measures are needed
and a process of developing and implementing appropriate control
measures.
Kentucky refers to the first-tier response as an ``indicator''
response. An indicator response is triggered if (1) there is an annual
fourth high monitored value of 0.071 ppm or greater in a single ozone
season or (2) periodic emission inventory updates reveal excessive or
unanticipated growth greater than 10 percent in ozone precursor
emissions within the Area. For the indicator response, Kentucky will
evaluate existing control measures to see if further emission reduction
measures should be implemented. Kentucky commits to implementing
necessary controls as expeditiously as possible, but no later than 12
months from the conclusion of the most recent ozone season (October
31).
Kentucky refers to the second-tier response as an ``action level
response.'' The action level trigger is the occurrence of a three-year
average of the fourth highest monitored value of 0.071 ppm or greater
(i.e., a violation of the 2015 ozone NAAQS). For an action level
response, Kentucky commits to determining additional control measures
needed to assure future attainment of the 2015 ozone NAAQS. This will
be done in conjunction with the metropolitan planning organization or
regional council of governments, and appropriate contingency measures
will be implemented within 24 months of a triggered violation.
Kentucky states that potential contingency measures may be chosen
from the following list; however, the Commonwealth and the District
reserve the right to implement other contingency measures if new
control programs should be developed and deemed more advantageous for
the Area:
<bullet> Implementation of a program to require additional emission
reductions on stationary sources, including RACT for point sources of
VOC and NO<INF>X</INF>, and specifically the adoption of new and
revised RACT rules based on Groups II, III, and IV CTGs;
<bullet> Implementation of a program to enhance inspection of
stationary sources;
<bullet> Implementation of fuel programs, including incentives for
alternative fuels;
<bullet> Restriction of certain roads or lanes to, or construction
of such roads or lanes for use by, passenger buses or high-occupancy
vehicles;
<bullet> Trip-reduction ordinances;
<bullet> Employer-based transportation management plans, including
incentives;
<bullet> 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;
<bullet> Implementation of a modern vehicle inspection/maintenance
program;
<bullet> Implementation of diesel retrofit programs, including
incentives for performing retrofits for fleet vehicle operations; and
<bullet> Additional engine idling reduction programs.
EPA preliminarily finds that the maintenance plan adequately
provides the five basic required components of a maintenance plan: the
attainment emissions inventory, maintenance demonstration, monitoring
plan, verification of continued attainment, and a contingency plan.
Therefore, EPA proposes to find that the maintenance plan SIP revision
submitted by Kentucky for the Louisville, KY Area meets the
requirements of section 175A of the CAA and is approvable.
VI. EPA's Analysis of Kentucky's Proposed NOX and VOC MVEBs
Under section 176(c) of the CAA, new transportation plans,
programs, and 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 or any interim milestones. 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
[[Page 23609]]
implementing transportation conformity. Transportation conformity is a
requirement for nonattainment and maintenance areas. Maintenance areas
are areas that were previously designated as nonattainment for a
particular NAAQS but have since been redesignated to attainment with an
approved maintenance plan for that NAAQS.
Under the CAA, states are required to submit at various times
control strategy SIPs and maintenance plans for nonattainment areas.
These control strategy SIPs (including reasonable further progress and
attainment demonstration requirements) 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 must be
established for the last year of the maintenance plan. A state may
adopt MVEBs for other years as well. 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.
See 58 FR 62188. The preamble also describes how to establish the MVEB
in the SIP and how to revise the MVEB.
After interagency consultation with the transportation partners for
the Louisville, KY-IN Area, MVEBs for NO<INF>X</INF> and VOC for that
area were developed. Kentucky developed these MVEBs for the last year
of the maintenance plan (2035) and for the interim year (2019). Because
the interim MVEB year of 2019 is also the base year for the maintenance
plan inventory, there is no safety margin; therefore, no adjustments
were made to the MVEBs for 2019. The 2035 MVEBs reflect the total
projected on-road emissions for 2035, plus an allocation from the
available NO<INF>X</INF> and VOC safety margins. Under 40 CFR 93.101,
the term ``safety margin'' is the difference between the attainment
level (from all sources) and the projected level of emissions (from all
sources) in the maintenance plan. The safety margin can be allocated to
the transportation sector; however, the total emissions must remain
below the attainment level. The NO<INF>X</INF> and VOC MVEBs and
allocation from the safety margin were developed in consultation with
the transportation partners and were added to account for uncertainties
in population growth, changes in model vehicle miles traveled, and new
emission factor models. The NO<INF>X</INF> and VOC MVEBs for the Area
are identified in Table 5, below.
Table 5--Louisville, KY-IN Area NOX and VOC MVEBs
[tpsd]
------------------------------------------------------------------------
2019 2035
------------------------------------------------------------------------
NOX On-Road Emissions................................. 33.03 14.20
NOX Safety Margin Allocated to MVEB................... ....... 2.98
NOX MVEB.......................................... 33.03 17.18
VOC On-Road Emissions................................. 13.65 4.68
VOC Safety Margin Allocated to MVEB................... ....... 0.83
VOC MVEB.......................................... 13.65 5.51
------------------------------------------------------------------------
Kentucky, in consultation with the transportation partners for the
Louisville, KY-IN Area chose to allocate a portion of the available
safety margin to the 2035 NO<INF>X</INF> and VOC MVEBs for the Area
after consideration of continued air quality improvements, known future
motor vehicle and fuels controls, projected fleet turnover, expected
future growth, possible future regulation, and model uncertainty.
Kentucky allocated 2.98 tpsd of the NO<INF>X</INF> safety margin to the
2035 NO<INF>X</INF> MVEB and 0.83 tpsd of the VOC safety margin to the
2035 VOC MVEB.\31\ The remaining safety margins for 2035 are 30.17 tpsd
and 23.18 tpsd for NO<INF>X</INF> and VOC, respectively.
---------------------------------------------------------------------------
\31\ The safety margins and safety margin allocations are based
on the most recent information from the TDM designed by KIPDA and
data from EPA MOVES3 (see page 34 of the SIP submittal). The final
safety margins are roughly 20% of projected 2035 NO<INF>X</INF>
emissions and 18% of projected VOC emissions.
---------------------------------------------------------------------------
Through this proposed rulemaking, EPA is proposing to approve the
MVEBs for NO<INF>X</INF> and VOC for years 2019 and 2035 for the Area
because EPA has determined that the Area maintains the 2015 8-hour
ozone NAAQS with the emissions at the levels of the budgets. If the
MVEBs for the Area are approved or found adequate (whichever comes
first), they must be used for future conformity determinations.
VII. EPA's Adequacy Determination for the Proposed NOX and VOC MVEBs
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA may 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 must 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 a MVEB are
set out in 40 CFR 93.118(e)(4). The process for determining adequacy
consists of three basic steps: public notification of a SIP submission,
a public comment period, and EPA's adequacy determination. This process
for determining the adequacy of submitted MVEBs for transportation
conformity purposes was initially outlined in EPA's May 14, 1999,
guidance, ``Conformity Guidance on Implementation of March 2, 1999,
Conformity Court Decision.'' EPA adopted regulations to codify the
adequacy process in the Transportation Conformity Rule Amendments for
in an action titled ``New 8-Hour Ozone and PM<INF>2.5</INF> 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. See 69 FR
40004. Additional information on the adequacy process for
transportation conformity purpose is available in the proposed rule
titled ``Transportation Conformity Rule Amendments: Response to Court
Decision and Additional Rule Changes.'' See 68 FR 38974, 38984 (June
30, 2003).
As discussed earlier, Kentucky's maintenance plan includes
NO<INF>X</INF> and VOC MVEBs for the Louisville, KY-IN Area for the
interim and base year 2019 and for 2035, the last year of the
maintenance plan. EPA reviewed the NO<INF>X</INF> and VOC MVEBs through
the adequacy process described in Section I.
[[Page 23610]]
EPA intends to make its determination on the adequacy of the 2019 and
2035 MVEBs for the Area for transportation conformity purposes in the
near future by completing the adequacy process that was started on
September 14, 2022.\32\ If EPA finds the 2019 and 2035 MVEBs adequate
or approves them, the new MVEBs for NO<INF>X</INF> and VOC must be used
for future transportation conformity determinations. For required
regional emissions analysis years that involve 2019 through 2034, the
2019 MVEBs will be used, and for years 2035 and beyond, the applicable
budgets will be the new 2035 MVEBs established in the maintenance plan.
---------------------------------------------------------------------------
\32\ As discussed above, comments were due on October 14, 2022.
See <a href="https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa">https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa</a>.
---------------------------------------------------------------------------
VIII. Effect of EPA's Proposed Actions
EPA's proposed actions establish the basis upon which EPA may take
final action on the issues being proposed for approval. Approval of
Kentucky's redesignation request would change the legal designation of
Bullitt, Jefferson, and Oldham Counties, found at 40 CFR part 81, from
nonattainment to attainment for the 2015 8-hour ozone NAAQS. Approval
of Kentucky's associated SIP revision would also incorporate a plan for
maintaining the 2015 8-hour ozone NAAQS in the Area through 2035 into
the Kentucky SIP. The maintenance plan establishes NO<INF>X</INF> and
VOC MVEBs for 2019 and 2035 for the Louisville KY-IN Area and includes
contingency measures to remedy any future violations of the 2015 8-hour
ozone NAAQS and procedures for evaluating potential violations.
IX. Proposed Actions
EPA is proposing to: (1) approve the maintenance plan for the
Louisville, KY Area, including the NO<INF>X</INF> and VOC MVEBs for
2019 and 2035, and incorporate it into the Kentucky SIP, and (2)
approve Kentucky's redesignation request for the 2015 8-hour ozone
NAAQS for the Area. Further, as part of this proposed action, EPA is
also describing the status of its adequacy determination for the
NO<INF>X</INF> and VOC MVEBs for the 2019 and 2035 in accordance with
40 CFR 93.118(f)(1). Within 24 months from the effective date of EPA's
adequacy determination for the MVEBs or the effective date for the
final rule for this action, whichever is earlier, the transportation
partners will need to demonstrate conformity to the new NO<INF>X</INF>
and VOC MVEBs pursuant to 40 CFR 93.104(e)(3).
If finalized, approval of the redesignation request would change
the official 2015 8-hour ozone NAAQS designation of Bullitt, Jefferson,
and Oldham Counties in Kentucky from nonattainment to attainment, as
found at 40 CFR part 81.
X. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
These actions merely propose to approve state law as meeting Federal
requirements and do not impose additional requirements beyond those
imposed by state law. For that reason, these proposed actions:
<bullet> Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<bullet> Do not impose an information collection burdens under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Do 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);
<bullet> Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rules do not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The Cabinet and District did not evaluate EJ considerations as part
of its redesignation request or SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
as part of Kentucky's redesignation request or SIP submittal in these
actions. Consideration of EJ is not required as part of these actions,
and there is no information in the record inconsistent with the stated
goal of E.O. 12898 of achieving EJ for people of color, low-income
populations, and Indigenous peoples.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
[[Page 23611]]
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 11, 2023.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2023-08017 Filed 4-17-23; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on April 18, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.