[Federal Register Volume 64, Number 98 (Friday, May 21, 1999)]
[Proposed Rules]
[Pages 27734-27741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12751]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY-9917; IN92-1; FRL-6346-3]


Clean Air Act Reclassification or Extension of Attainment Date, 
Kentucky and Indiana; Louisville Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to find that the Louisville moderate ozone 
nonattainment area (Louisville area) has failed to attain the one-hour 
ozone National Ambient Air Quality Standard (NAAQS) by its applicable 
attainment date. If EPA takes final action on this finding, the 
Louisville area would be reclassified as a serious nonattainment area. 
The Louisville area consists of Jefferson County and portions of 
Bullitt and Oldham Counties in Kentucky, and Clark and Floyd Counties 
in Indiana.
    However, EPA is also proposing to extend the Louisville area's 
attainment date, if Kentucky and Indiana meet the criteria of EPA's 
July 16, 1998 attainment date extension policy. The extension policy 
provides that a nonattainment area, such as the Louisville area, may be 
eligible for an attainment date extension if it meets certain 
conditions. The extension policy applies where pollution from upwind 
areas interferes with the ability of a downwind area to demonstrate 
attainment with the one-hour ozone standard by the dates prescribed in 
the CAA. Kentucky and Indiana are working together to comply with the 
conditions for receiving an extension. If Kentucky and Indiana make 
submittals in response to the extension policy, EPA will address the 
adequacy of those submittals in a subsequent supplemental proposal. If 
the submittals meet the criteria for an extension, the attainment date 
for the Louisville area will be extended, and the area will not be 
reclassified. EPA does not intend to take final action on 
reclassification of the Louisville area prior to allowing the area an 
opportunity to qualify for an attainment date extension under the 
extension policy.

DATES: Comments must be received on or before June 21, 1999.

ADDRESSES: All comments should be addressed to: Kay Prince, Section 
Chief, Regulatory Planning Section, Air Planning Branch, U.S. 
Environmental Protection Agency, 61 Forsyth Street, Atlanta, GA, 30303; 
or to J. Elmer Bortzer, Chief, Regulation Development Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, IL 60604.
    Copies of the Louisville area monitored air quality data analyses, 
guidance on extension of attainment dates in downwind transport areas, 
state submittals requesting attainment date extension, and other 
relevant documents used in support of this proposal are available at 
the following addresses for inspection during normal business hours: 
U.S. Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, Atlanta, GA, 30303; U.S. Environmental Protection 
Agency, Region 5, Air Programs Branch, Air and Radiation Division, 77 
West Jackson Boulevard, Chicago, IL 60604; and the U.S. Environmental 
Protection Agency, Air and Radiation Docket and Information Center, Air 
Docket (6102), 401 M Street, SW, Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Kay Prince, EPA Region 4, (404) 562-
9026, Karla McCorkle, EPA Region 4, (404) 562-9043, or Jay Bortzer, EPA 
Region 5, (312) 886-1430.

SUPPLEMENTARY INFORMATION: The supplemental information is organized in 
the following order:

I. What action is being taken in this document?
II. What are the National Ambient Air Quality Standards?
III. What is the NAAQS for ozone?
IV. What is the Louisville ozone nonattainment area?
V. Why is EPA proposing to reclassify the Louisville area?
VI. What is EPA's new policy regarding extension of attainment dates 
for downwind transport areas?
VII. Is the Louisville area eligible for an attainment date 
extension under the extension policy?
VIII. What progress has been made by Kentucky and Indiana to meet 
the extension policy so that an attainment date extension can be 
obtained?
IX. What actions have Kentucky and Indiana taken to improve air 
quality in the Louisville area?
X. If EPA finalizes its proposed rulemaking reclassifying the 
Louisville area, what would be the area's new classification?
XI. If the Louisville area is reclassified to serious, when would it 
be required to attain the standard?
XII. When will EPA make a final decision on whether to reclassify or 
grant an extension to the Louisville area?
XIII.Administrative Requirements.

I. What Action Is Being Taken in This Document?

    EPA is proposing to find that the Louisville area has failed to 
attain the one-hour ozone NAAQS by the November 15, 1996, attainment 
deadline prescribed under the CAA for moderate ozone nonattainment 
areas, or by the November 15, 1997 extended deadline granted to the 
Louisville area under Section 181 (a)(5) of the CAA. EPA's authority to 
make this finding is discussed under section 181(b)(2) of the CAA. 
Section 181(b)(2) explains EPA's responsibility to determine whether an 
area has attained the one-hour ozone standard, and its duty to 
reclassify the area if necessary. If EPA finalizes this finding, the 
Louisville area will be reclassified by operation of law from moderate 
nonattainment to serious nonattainment.
    Alternatively, EPA is also proposing to extend the Louisville 
area's attainment date, provided that Kentucky and Indiana submit State 
Implementation Plans (SIPs) pursuant to EPA's July 16, 1998 policy, 
entitled ``Guidance on Extension of Air Quality Attainment Dates for 
Downwind Transport Areas'' (Richard D. Wilson, Acting Assistant 
Administrator for Air and Radiation) by November 15, 1999. If the 
States meet the extension policy criteria and EPA proposes to approve 
the States' submittals, then a specific extended attainment date will 
be proposed in the same notice. EPA will take final action on the new 
attainment date at the time it takes final action on the attainment 
demonstration and the other necessary submittals. However, if Kentucky 
and Indiana fail to meet the criteria of the extension policy, EPA will 
finalize this proposed finding of

[[Page 27735]]

failure to attain, and the Louisville area will be reclassified to a 
serious ozone nonattainment area.
    EPA believes that this approach is reasonable since it (1) ensures 
that the local control measures mandated by the CAA for moderate 
nonattainment areas, such as Volatile Organic Compound (VOC) and 
Nitrogen Oxides (NOx) Reasonably Available Control Technology (RACT), 
are achieved; (2) takes into consideration the transport of pollutants 
into the Louisville area which impair the ability of the area to meet 
the air quality standards; and (3) harmonizes the Louisville area 
attainment date with the schedule for emissions reductions in upwind 
areas associated with the NOx SIP call.

II. What Are the National Ambient Air Quality Standards?

    Since the CAA's inception in 1970, EPA has set NAAQS for six common 
air pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, 
particulate matter, and sulfur dioxide. For these common air pollutants 
there are two types of pollution limits referred to as the primary and 
secondary standard. The primary standard is based on health effects; 
and the secondary standard is based on environmental effects such as 
damage to property, plants, and visibility. The CAA requires these 
standards be set at levels that protect public health and welfare with 
an adequate margin of safety. These standards allow the American people 
to assess whether or not the air quality in their communities is 
healthful. Also, the NAAQS present state and local governments with the 
air quality levels they must meet to achieve clean air.

III. What Is the NAAQS for Ozone?

    The NAAQS for ozone is expressed in two forms which are referred to 
as the one-hour and eight-hour standards. Table 1 summarizes the ozone 
standards.

                                      Table 1.--Summary of Ozone Standards
----------------------------------------------------------------------------------------------------------------
                                         Value
              Standard                (parts per            Type                    Method of compliance
                                       million)
----------------------------------------------------------------------------------------------------------------
1-hour..............................        0.12  Primary and secondary..  Concentration of ozone monitored in
                                                                            ambient air must not exceed standard
                                                                            value, on average, more than one day
                                                                            per year over any 3-year period.
8-hour..............................        0.08  Primary and secondary..  The 3-year average of the annual
                                                                            fourth highest daily maximum 8-hour
                                                                            average ozone concentration measured
                                                                            at each monitor within an area must
                                                                            be equal to or below the standard
                                                                            value.
----------------------------------------------------------------------------------------------------------------

    The one-hour ozone standard of 0.12 ppm has existed since 1979. The 
eight-hour ozone standard, which replaces the one-hour standard, was 
adopted by EPA on July 18, 1997 (62 FR 38856). However, the one-hour 
ozone standard continues to apply for existing nonattainment areas 
until such time as EPA determines that the area has attained the one-
hour ozone standard (40 CFR 50.9(b)). The one-hour standard continues 
to apply to the Louisville area and it is the classification of the 
Louisville area relative to the one-hour ozone standard that is 
addressed in this document.

IV. What Is the Louisville Ozone Nonattainment Area?

    The Louisville ozone nonattainment area is an interstate area which 
includes counties in both Kentucky and Indiana as follows: Jefferson 
County and portions of Bullitt and Oldham Counties in Kentucky; and 
Clark and Floyd Counties in Indiana.
    Under section 107(d)(1)(C) of the CAA, each area that EPA 
designated nonattainment for the one-hour ozone standard prior to 
enactment of the 1990 CAA amendments, such as the Louisville area, 
retained its nonattainment designation by operation of law upon 
enactment of the 1990 amendments. Under section 181(a) of the Act, each 
ozone nonattainment area was also classified by operation of law as 
``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or ``extreme,'' 
depending on the severity of the area's air quality problem. The design 
value for a nonattainment area, which characterizes the severity of the 
area's air quality problem, is represented by the highest design value 
at any individual ozone monitoring site. The design value of a 
monitoring site is the fourth highest one-hour daily maximum ozone 
value recorded in a given three-year period with complete monitoring 
data. Table 2 provides the design value ranges for each nonattainment 
classification. Ozone nonattainment areas with design values between 
0.138 and 0.160 ppm were classified as moderate, such as the Louisville 
area which had a design value of 0.149 ppm in 1989. These nonattainment 
designations and classifications were codified in 40 CFR part 81 (see 
56 FR 56694, November 6, 1991).

                                  Table 2.--Ozone Nonattainment Classifications
----------------------------------------------------------------------------------------------------------------
               Area class                        Design value (ppm)                   Attainment date
----------------------------------------------------------------------------------------------------------------
Marginal................................  0.121 up to 0.138..............  November 15, 1993.
Moderate................................  0.138 up to 0.160..............  November 15, 1996.
Serious.................................  0.160 up to 0.180..............  November 15, 1999.
Severe..................................  0.180 up to 0.280..............  November 15, 2005.
Extreme.................................  0.280 and above................  November 15, 2010.
----------------------------------------------------------------------------------------------------------------


[[Page 27736]]

    Under section 182(b)(1)(A) of the CAA, states containing areas that 
were classified as moderate nonattainment were required to submit SIPs 
to provide for certain controls, to show progress toward attainment, 
and to provide for attainment of the ozone standard no later than 
November 15, 1996. Moderate area SIP requirements are found primarily 
in section 182(b) of the CAA.

V. Why Is EPA Proposing To Reclassify the Louisville Area?

    In regard to reclassification for failure to attain, section 
181(b)(2)(A) of the Act provides that:
    Within 6 months following the applicable attainment date (including 
any extension thereof) for an ozone nonattainment area, the 
Administrator shall determine, based on the area's design value (as of 
the attainment date), whether the area attained the standard by that 
date. Except for any Severe or Extreme area, any area that the 
Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law in accordance with table 1 of 
subsection (a) to the higher of--
    (i) the next higher classification for the area, or
    (ii) the classification applicable to the area's design value as 
determined at the time of the notice required under subparagraph (B).

No area shall be reclassified as Extreme under clause (ii).
    Furthermore, section 181(b)(2)(B) of the CAA provides that:
    The Administrator shall publish a notice in the Federal Register, 
no later than 6 months following the attainment date, identifying each 
area that the Administrator has determined under subparagraph (A) as 
having failed to attain and identifying the reclassification, if any, 
described under subparagraph (A).
    Table 3 lists the number of days when ambient ozone concentrations 
exceeded the one-hour ozone standard and the average number of expected 
exceedances at each monitoring site in the Louisville area for the 
period 1994-1996. The ozone design value for each monitor is also 
listed. Note that the average number of expected exceedances per year 
is not always equal to the average number of days with measured ozone 
above the standard. Expected exceedance calculations take missing data 
into account. If a monitor does not collect a complete set of valid 
data over its monitored period, fractional ``expected exceedances'' are 
added to account for ozone exceedances that, statistically, could have 
occurred during periods of missing data within high ozone episodes. The 
three year average number of expected exceedances is used to determine 
attainment of the ozone standard. See 40 CFR 50.9(a). Table 3 shows 
that for 1994-1996, one monitoring site in the Louisville area averaged 
more than one exceedance day per year; therefore, the area did not 
attain the standard by November 15, 1996.
    Section 181(a)(5) of the CAA states that an area may be eligible 
for up to two one-year extensions if ``no more than one exceedance of 
the NAAQS level for ozone has occurred in the area in the year 
preceding the extension year.'' On October 23, 1997, EPA determined 
that Louisville qualified for a one-year extension of the attainment 
date to November 15, 1997 (See 62 FR 55173). Table 4 shows the ozone 
data for 1995-1997. During this period, two monitoring sites in the 
Louisville area averaged more than one exceedance per year, and the 
area's design value was greater than the ozone standard. Because there 
were multiple exceedances at two monitors during the 1997 ozone season, 
the Louisville area was not eligible for a second one-year extension 
under Section 181(a)(5), and the states did not request an extension. 
Therefore, in this notice, pursuant to section 181(b)(2)(B) of the CAA, 
EPA proposes to find that the Louisville area did not attain the 1-hour 
standard by its applicable attainment date.

             Table 3.--Air Quality Monitoring Data for the Louisville Nonattainment Area (1994-1996)
----------------------------------------------------------------------------------------------------------------
                                                                                  Average number
                                                                  Number of days    of expected     Site design
                      Site                         AIRS site ID    over standard    exceedance      value (ppm)
                                                                    (1994-1996)    days per year
----------------------------------------------------------------------------------------------------------------
Kentucky Sites (County):
    Buckner (Oldham)............................     21-185-0004               0            0              0.109
    WLKY-TV (Jefferson).........................     21-111-1021               1            0.37           0.12
    Watson (Jefferson)..........................     21-111-0051               3            1              0.119
    Brentlinger (Jefferson).....................     21-111-0027               1            0.33           0.109
    Shepherdsville (Bullitt)....................     21-029-0006               0            0              0.115
Indiana Sites (County):
    Charlestown (Clark).........................     18-019-0003               5          a 1.67           0.132
    New Albany (Floyd) b........................     18-043-1004               1            1              0.115
----------------------------------------------------------------------------------------------------------------
a Values over 1.05 represent a violation of the 1-hour ozone standard.
b This site became operational in 1995; the data recorded is for 1995-1996 only. The design value is calculated
  from two years of data rather than three years.


             Table 4.--Air Quality Monitoring Data for the Louisville Nonattainment Area (1995-1997)
----------------------------------------------------------------------------------------------------------------
                                                                                  Average number
                                                                  Number of days    of expected     Site design
                      Site                         AIRS site ID    over standard    exceedance     value  (ppm)
                                                                    (1995-1997)    days per year
----------------------------------------------------------------------------------------------------------------
Kentucky Sites (County):
    Buckner (Oldham)............................     21-185-0004               2            0.7            0.109
    WLKY-TV (Jefferson).........................     21-111-1021               1            0.37           0.12
    Watson (Jefferson)..........................     21-111-0051               2            0.67           0.12
    Brentlinger (Jefferson).....................     21-111-0027               2            0.67           0.111
    Shepherdsville (Bullitt)....................     21-029-0006               1            0.4            0.116
Indiana Sites (County):
    Charlestown (Clark).........................     18-019-0003               5          a 1.73           0.125

[[Page 27737]]

 
    New Albany (Floyd)..........................     18-043-1004               4          a 1.33           0.125
----------------------------------------------------------------------------------------------------------------
a Values over 1.05 represent a violation of the 1-hour ozone standard.

    A complete listing of the ozone exceedances for each monitoring 
site, as well as EPA's calculations of the design values, can be found 
in the docket file for this action.
    Table 5 is provided to show expected exceedance days per year for 
1995 through 1998. Due to measured ozone exceedances at one monitor, 
the Louisville area was again unable to attain the standard for the 
period 1996-1998.

                                 Table 5.--Air Quality Monitoring Data for the Louisville Nonattainment Area (1995-1998)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Expected exceedance days                Site design value
                                                                                 ------------------------------------------------          (ppm)
                              Site                                 AIRS site ID                                                  -----------------------
                                                                                     1995        1996        1997        1998      1995-1997   1996-1998
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kentucky Sites (County):
    Buckner (Oldham)............................................     21-185-0004         0           0           2.1         1         0.109       0.12
    WLKY-TV (Jefferson).........................................     21-111-1021         0           1.1         0           1         0.12        0.121
    Watson (Jefferson)..........................................     21-111-0051         1           1           0           1         0.12        0.121
    Brentlinger (Jefferson).....................................     21-111-0027         1           0           1           1         0.111       0.12
    Shepherdsville (Bullitt)....................................     21-029-0006         0           0           1.2         0         0.116       0.111
Indiana Sites (County):
    Charlestown (Clark).........................................     18-019-0003         2.1         0           3.1         3.2       0.125       0.13
    New Albany (Floyd)..........................................     18-043-1004         1           1           2           2         0.125       0.127
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As discussed later in this document, because EPA has now 
interpreted the CAA to allow for an extension of the attainment date 
based on an understanding of transport data not available at the time 
of Louisville's original attainment date and after the one year 
extended attainment date, EPA believes it is fair to allow Kentucky and 
Indiana an opportunity to qualify for this attainment date extension 
before EPA finalizes its finding of failure to attain and reclassifies 
the Louisville area to serious nonattainment.
    This proposal details the following reasons which support EPA's 
decision to proceed in this manner:
    1. EPA has concluded that this is the best way of reconciling the 
CAA's provisions with respect to ozone transport with the provisions 
governing graduated attainment dates and with the reclassification 
provisions. The CAA shows Congressional intent that transport be 
considered when the Agency acts to reclassify an area, and a reluctance 
to subject an area to greater controls than necessary to bring local 
sources into compliance.
    2. The Louisville area has been shown to be affected by ozone 
transport from upwind areas.
    3. The Louisville area is now monitoring air quality that, were the 
area being newly classified, would entitle it to the classification of 
a marginal nonattainment area. However, if the Louisville area is 
reclassified to serious nonattainment, it will be required to impose 
emission control regulations which are normally demanded only for areas 
monitoring much higher levels of air pollution.
    4. Kentucky and Indiana have committed to submit an attainment 
demonstration by November 1999, which includes all the local control 
measures required under the CAA for moderate nonattainment areas, 
demonstrating attainment by the date when upwind controls are expected 
to be implemented.
    Furthermore, EPA's proposal for an extension date is balanced by 
EPA's action in moving forward with the process of reclassification in 
the event that the States do not meet the criteria for an extension.

VI. What Is EPA's New Policy Regarding Extension of Attainment 
Dates for Downwind Transport Areas?

    A number of areas in the country that have been classified as 
``moderate'' or ``serious'' are affected by pollutants that have 
traveled downwind from other areas. For these downwind areas, transport 
of pollutants from upwind areas has interfered with their ability to 
meet the ozone standard by the dates prescribed by the CAA. As a 
result, many of these areas, such as the Louisville area, find 
themselves facing the prospect of being reclassified to a higher 
classification (e.g., from ``moderate'' to ``serious'') for failing to 
meet the ozone standard by the specified date.
    For some time, EPA has recognized that pollutant transport can 
impair an area's ability to meet air quality standards. As a result, in 
March 1995 a collaborative, Federal-state process to assess the ozone 
transport problem was begun. Through a two-year effort known as the 
Ozone Transport Assessment Group (OTAG), EPA worked in partnership with 
the 37 easternmost states and the District of Columbia, industry 
representatives, academia, and environmental groups to develop 
recommended strategies to address transport of ozone-forming pollutants 
across state boundaries.
    On November 7, 1997, EPA acted on OTAG's recommendations and issued 
a proposal (the proposed NOX SIP call, 62 FR 60318) 
requiring 22 states and the District of Columbia to submit state 
implementation plans addressing the regional transport of ozone. These 
state implementation plans, or SIPs, will decrease the transport of 
ozone across state boundaries in the eastern half of the United States 
by reducing emissions of NOX (a precursor to ozone 
formation). EPA took final action on the NOX SIP call on 
October 27, 1998 (63 FR 57356). EPA expects that the final 
NOX SIP call

[[Page 27738]]

will assist many areas in attaining the one-hour ozone standard.
    On July 16, 1998, in consideration of these factors and the 
realization that many areas are unable to meet the CAA mandated 
attainment dates due to transport, EPA issued the extension policy. In 
this policy the attainment date for an area may be extended provided 
that the following criteria are met: (1) the area must be identified as 
a downwind area affected by transport from either an upwind area in the 
same state with a later attainment date or an upwind area in another 
state that significantly contributes to downwind nonattainment (by 
``affected by transport,'' EPA means an area whose air quality is 
affected by transport from an upwind area to a degree that affects the 
area's ability to attain); (2) an approvable attainment demonstration 
must be submitted with any necessary, adopted local measures and with 
an attainment date that shows that it will attain the one-hour standard 
no later than the date that the reductions are expected from upwind 
areas under the final NOX SIP call and/or the statutory 
attainment date for upwind nonattainment areas, i.e., assuming the 
boundary conditions reflecting those upwind reductions; (3) the area 
has adopted all applicable local measures required under the area's 
current classification and any additional measures necessary to 
demonstrate attainment, assuming the reductions occur as required in 
the upwind areas; and (4) the area must provide that it will implement 
all adopted measures as expeditiously as practicable, but no later than 
the date by which the upwind reductions needed for attainment will be 
achieved.
    EPA contemplates that when it acts to approve such an area's 
attainment demonstration, it will, as necessary, extend that area's 
attainment date to a date appropriate for that area in light of the 
schedule for achieving the necessary upwind reductions. The area would 
no longer be subject to reclassification for failure to attain by its 
original attainment date under section 181(b)(2).

VII. Is the Louisville Area Eligible for an Attainment Date 
Extension Under the Extension Policy?

    EPA believes that the Louisville area is affected by upwind 
transport. In fact, according to the final NOX SIP call, the 
Louisville area is affected by transport of pollutants from upwind 
areas to an extent that the area's ability to meet the one-hour ozone 
standard is impaired. Therefore, EPA believes that the first of the 
transport criteria is satisfied. However, before the Louisville area 
can qualify for an attainment date extension under the extension 
policy, the remainder of the criteria specified in the extension policy 
must be met.
    In October 1998, EPA notified the Governors of Kentucky and Indiana 
of the availability of the extension policy. EPA also requested that, 
if they wished to demonstrate their eligibility for the extension 
policy, the Governors respond to EPA with a letter committing their 
respective States to meet the requirements necessary to qualify for an 
attainment date extension under the policy by November 15, 1999.
    On December 3, 1998, Kentucky submitted a letter to EPA providing a 
commitment to meet the requirements of the extension policy. Similarly, 
on December 19, 1998, Indiana submitted a letter to EPA providing a 
commitment to meet the requirements of the extension policy. (EPA's 
letters notifying the Kentucky and Indiana Governors of the extension 
policy, and their respective responses, are included in the docket for 
this rulemaking.)
    EPA's review of the Attainment Demonstration SIP for the Louisville 
area indicates that Kentucky and Indiana must submit the following in 
order to meet the requirements set forth in the extension policy:
    1. A technical analysis establishing the influence of transport on 
ozone levels within the Louisville area. This requirement can be met by 
citing the analysis contained in EPA's aforementioned NOX 
SIP call;
    2. Regulations or negative declarations addressing certain CAA 
requirements for the Indiana portion of the Louisville area including: 
(a) Synthetic Organic Chemical Manufacturing Industry (SOCMI) 
distillation; (b) SOCMI reactors; (c) Lithography; (d) Batch processes; 
(e) Industrial wastewater treatment; (f) Business plastics; (g) Cleanup 
solvents; and (h) Aerospace coatings;
    3. Source specific reasonably available control technology 
(NOX RACT) measures for the Kentucky portion of the 
Louisville area; and
    4. A revised attainment demonstration meeting the criteria set 
forth in the extension policy.
    In addition, the States must submit SIP revisions addressing any 
other local control measures necessary for attainment. All measures 
must also be implemented in accordance with the time frames set forth 
in the extension policy.

VIII. What Progress Has Been Made by Kentucky and Indiana To Meet 
the Extension Policy so That an Attainment Date Extension Can Be 
Obtained?

    Kentucky and Indiana have already done extensive work toward 
meeting the extension policy. Several major portions of the extension 
policy have already been satisfied, and Kentucky and Indiana have 
already made substantial progress toward compliance with the criteria 
for obtaining an attainment date extension.
    Regarding the first item, EPA believes that Kentucky and Indiana 
can establish the influence of transport on ozone levels within the 
Louisville area by citing the analysis contained in EPA's 
NOX SIP call.
    Regarding the second item, Indiana is reviewing the source 
inventory for Clark and Floyd Counties. Indiana has committed to either 
develop RACT regulations if those source categories exist in Clark and 
Floyd Counties, or make a formal declaration that no subject sources of 
the category exist in the two counties. Kentucky has already met the 
VOC RACT requirements.
    Regarding the third item, the Air Pollution Control District of 
Jefferson County, Kentucky has developed and is currently adopting a 
NOX RACT regulation that requires Jefferson County area 
sources to submit source specific SIP revisions consistent with 
NOX RACT requirements. For the remaining part of the 
Louisville area which includes portions of Bullitt and Oldham Counties 
there are no existing major NOX emission sources, therefore 
the Commonwealth of Kentucky is not required to implement 
NOX RACT requirements for that area. Indiana has already met 
the NOX RACT requirements.
    Regarding the fourth item, Kentucky and Indiana are currently 
working to develop an approvable attainment demonstration. They have 
initiated the steps leading to a final attainment demonstration and 
have committed to completing and submitting the attainment 
demonstration by November 15, 1999.

IX. What Actions Have Kentucky and Indiana Taken To Improve Air 
Quality in the Louisville Area?

    Jefferson County, Kentucky, has implemented VOC emission reductions 
as part of its 15 percent rate-of-progress plan (15 percent plan). EPA 
is currently drafting rulemaking on this plan. The VOC controls 
Jefferson County has implemented include: (1) VOC emission reduction 
requirements and a rule effectiveness improvement plan for

[[Page 27739]]

sources subject to the requirements; (2) architectural and industrial 
maintenance coatings regulations; (3) transportation control measures 
including transit, rideshare, alternative fuels, and traffic signal 
improvements; (4) automobile refinishing emission control regulations; 
(5) Stage II vapor recovery and control regulation; (6) solid waste 
landfill regulations; (7) a basic plus vehicle inspection and 
maintenance (I/M) program which includes loaded idle testing, pressure 
testing requirements, and tampering inspections which apply to vehicles 
that regularly or routinely commute to Jefferson County; and (8) the 
use of the reformulated gasoline (RFG) program for off-road and on-road 
mobile sources.
    Jefferson County has sought further reductions from the I/M program 
by including loaded mode testing and enhanced mechanic training. EPA 
recently approved Jefferson County's I/M program requirement for a 
check of the On Board Diagnostic (OBD) system on model-year 1996 and 
newer automobiles (refer to 64 FR 12798, March 15, 1999). Jefferson 
County has maintained an innovative approach to the local I/M program, 
also referred to as the Vehicle Emission Testing (VET) program, since 
its inception in 1984. The program continues to be effectively 
implemented and Jefferson County remains a national leader through, for 
example, implementation of a vehicle repair report card which evaluates 
the effectiveness of automobile repairs required under the I/M program. 
The program also remains on the forefront with the requirement for the 
evaluation of automobiles by a VET staff mechanic before an emission 
certification waiver request is granted. The I/M program is an 
important component of the emission reduction strategy in Jefferson 
County.
    Jefferson County has adopted RACT regulations requiring additional 
emission reductions from bakery oven facilities, ferroalloy and calcium 
carbide production facilities, and volatile organic loading facilities. 
Jefferson County plans to submit these RACT regulations to EPA in the 
near future. To provide further emission reductions, Jefferson County 
is currently adopting a cold cleaning operations regulation.
    The State of Indiana has also taken a number of actions to improve 
air quality in the Louisville area. Indiana has adopted and fully 
implemented the VOC emission reduction measures included in its 15 
percent rate-of-progress plan (15 percent plan). EPA published final 
approval of Indiana's 15 percent plan in May 1997 (62 FR 24815).
    Indiana's 15 percent plan limits VOC emissions from local 
operations such as volatile organic liquid storage tanks, automobile 
refinishing, municipal solid waste landfills, ship building and ship 
repair, and a local offset printing facility. The plan also includes an 
upgraded vehicle inspection and maintenance program, which uses a 
dynamometer to better identify polluting cars. Other measures in place 
include required use of Stage II gasoline vapor recovery systems at 
service stations, implementation of a gasoline with lower Reid Vapor 
Pressure (RVP); a ban on residential open burning, and a ridesharing 
program. Municipal solid waste landfills were required to install a gas 
collection and combustion system sooner than the federal time schedule. 
Indiana has also implemented RACT rules for sources of NOX.
    To further improve air quality, Indiana has implemented additional 
measures including a rule establishing vapor pressure limits for 
solvents used in cold cleaning degreasing. Indiana has also established 
a local steering committee to assist in identifying additional emission 
reduction opportunities that will continue to improve and maintain air 
quality. The steering committee reflects broad representation including 
the public, industry, local government, health associations, and 
environmental groups.

X. If EPA Finalizes Its Proposed Rulemaking Reclassifying the 
Louisville Area, What Would Be the Area's New Classification?

    Section 181(b)(2)(A) of the Act requires that, when an area is 
reclassified for failure to attain, its reclassification will be the 
higher of the next higher classification or the classification 
applicable to the area's ozone design value at the time the notice of 
reclassification is published in the Federal Register. The design value 
of the Louisville area at the time of the proposed finding of failure 
to attain is based on air quality monitoring data from 1996 through 
1998. (Refer to Table 5 for 1996-1998 data.) The 1996-1998 design value 
is 0.130 ppm, as derived from the Charlestown, Indiana (Clark Co.) 
monitoring site, and the classification of ``marginal'' nonattainment 
would be applicable to that design value. By contrast, because the 
Louisville area is currently classified ``moderate,'' the next higher 
classification for the area is ``serious'' nonattainment. Since 
``serious'' is a higher nonattainment classification than ``marginal'' 
under the statutory scheme, the Louisville area would be reclassified 
to serious nonattainment, if EPA finalizes its proposal to reclassify.

XI. If the Louisville Area Is Reclassified to Serious, When Would 
It Be Required To Attain the Standard?

    Under section 181(a)(1) of the Act, the new attainment deadline for 
moderate ozone nonattainment areas reclassified to serious under 
section 181(b)(2) would be ``as expeditious as practicable,'' but no 
later than the date applicable to the new classification, i.e., 
November 15, 1999. However, EPA does not expect to take final action on 
this proposed reclassification until after November 15, 1999. As stated 
previously, EPA is proposing to allow the states adequate time to 
demonstrate that an extension of the attainment date, instead of a 
reclassification, would be appropriate under the extension policy. As a 
practical matter, even if EPA were to reclassify the Louisville area 
immediately, there would likely be insufficient time for Kentucky and 
Indiana to submit new attainment demonstrations and actually attain the 
one-hour ozone standard by November 15 of this year. EPA believes that 
the practical impossibility of meeting the November 1999 statutory 
serious area attainment deadline requires EPA to establish a new 
attainment date for the area. EPA believes that it is appropriate to 
propose an alternative deadline for the Louisville area that is as 
expeditious as practicable. Therefore, in this document EPA is 
proposing options for extending the attainment date in the event that 
the area is reclassified to serious.
    Section 182(i) states that the Administrator may adjust applicable 
deadlines (other than attainment dates) to the extent such adjustment 
is necessary or appropriate to assure consistency for submission of the 
new requirements applicable to an area which has been reclassified. 
Where an attainment date has already passed or is otherwise impossible 
to meet, EPA believes that the Administrator may also adjust an 
attainment date to assure fair and equitable treatment consistent with 
the provisions in section 182(i), notwithstanding the parenthetical 
clause. EPA also notes another provision of the CAA in section 
110(k)(5) pertaining to findings of SIP inadequacy that allows the 
Administrator to adjust attainment dates when such dates have passed. 
Although this latter provision is not directly applicable to a 
reclassification, EPA believes that the provision illustrates a 
recognition by Congress of the limited instances in which it becomes 
necessary to adjust attainment dates, particularly

[[Page 27740]]

where it is otherwise impossible to meet the statutory date.
    One option is to construct a schedule consistent with recent 
reclassifications of other areas. EPA has recently reclassified other 
moderate ozone nonattainment areas, including Santa Barbara, 
California; Phoenix, Arizona; and Dallas-Fort Worth, Texas. The 
attainment date for these areas is November 15, 1999. EPA published the 
notice reclassifying the Dallas-Fort Worth area on February 18, 1998, 
thereby providing approximately 21 months for the area to attain the 
standard. EPA concluded that 21 months was an adequate period for a 
moderate attainment area to attain the standard where the CAA mandated 
attainment date for the new classification had not yet lapsed, but 
where there was less time remaining than the Act had contemplated. If 
EPA finalizes this proposed reclassification of the Louisville area, 
EPA could require the area to attain the standard on a similar time 
frame. Applying this approach to the Louisville area would result in 
setting a new attainment date 21 months from publication of the final 
reclassification notice.
    Another option would be to set an attainment date that takes into 
account the impact of transport on the area, even if the area fails to 
fully meet the criteria for the attainment date extension policy. As 
stated previously, EPA believes that the Louisville area is affected by 
transported pollutants. This attainment date would coincide with the 
date set for upwind area reductions under the NOX SIP call, 
or May 2003. Although the Louisville area, if reclassified, would have 
to meet the requirements for a serious area, under this option it would 
not be held responsible for emission reductions necessary to compensate 
for transported pollution. This option would then be consistent with 
EPA's approach of allocating responsibility for pollution fairly among 
the states. EPA welcomes any comments on the options discussed above.
    An area reclassified to serious is required to submit SIP revisions 
addressing the serious area requirements for the one-hour ozone 
standard in section 182(c). If the Louisville area is reclassified, EPA 
must also address the schedule by which Kentucky and Indiana are 
required to submit SIP revisions meeting the serious area requirements. 
One option is to require that the States submit SIP revisions 
containing all of the serious area requirements no later than one year 
after final action on the reclassification. This submission would 
include a new attainment demonstration and all additional measures 
required by section 182(c) of the Act. The additional measures include, 
but are not limited to, the following: (1) Attainment and reasonable 
further progress demonstrations; (2) an enhanced vehicle I/M program; 
(3) a clean-fuel vehicle program; (4) a 50 ton-per-year major source 
threshold; (5) more stringent new source review requirements; (6) an 
enhanced monitoring program; and (7) contingency provisions. If the 
submission shows that the area can attain the standard sooner than the 
attainment date established in a final reclassification notice, EPA 
would adjust the attainment date to reflect the earlier date, 
consistent with the requirement in section 181(a)(1) that the standard 
be attained as expeditiously as practicable. EPA solicits comments on 
the appropriate schedule for submitting these SIP revisions.

XII. When Will EPA Make a Final Decision on Whether To Reclassify 
or Grant an Extension to the Louisville Area?

    If Indiana and Kentucky submit the aforementioned air quality 
analyses and regulations to EPA by November 15, 1999, EPA will publish 
a supplemental proposal to address the approvability of the submittals. 
If EPA proposes and subsequently takes final action to approve the 
States' submittals, the Agency would finalize the attainment date 
extension for the Louisville area to an appropriate date, and not 
finalize the finding of failure to attain. However, if EPA proposes and 
subsequently takes final action to disapprove the States' submittals, 
the Agency would instead finalize the reclassification of the 
Louisville area to serious. If EPA finalizes the reclassification, 
Kentucky and Indiana would be required to submit SIPs that adopt the 
serious area requirements. A schedule for submitting the SIPs would be 
set at that time.

XIII. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 entitled ``Regulatory Planning and 
Review.''

B. Executive Order 12875

    Under E.O. 12875, Enhancing the Intergovernmental Partnership, EPA 
may not issue a regulation that is not required by statute and that 
creates a mandate upon a state, local, or tribal government, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by those governments, or EPA consults with 
those governments. If EPA complies by consulting, E.O. 12875 requires 
EPA to provide to the OMB a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's proposal would not create a mandate on state, local, or 
tribal governments. It would not impose any enforceable duties on these 
entities. The SIP submission requirements are not judicially 
enforceable. Accordingly, the requirements of section 1(a) of E.O. 
12875 do not apply to this proposal.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This proposal is not subject to E.O. 13045 because it is not an 
economically significant regulatory action as defined by E.O. 12866, 
and it does not establish a further health or risk-based standard 
because it implements a previously promulgated health or safety-based 
standard.

D. Executive Order 13084

    Under E.O. 13084, Consultation and Coordination with Indian Tribal 
Governments, EPA may not issue a regulation that is not required by 
statute, that significantly or uniquely affects the communities of 
Indian tribal governments, and that imposes substantial direct 
compliance costs on those communities, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by the tribal

[[Page 27741]]

governments, or EPA consults with those governments. If EPA complies by 
consulting, E.O. 13084 requires EPA to provide to the OMB, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's proposal would not significantly or uniquely affect tribal 
governments. Accordingly, the requirements of section 3(b) of E.O. 
13084 do not apply to this proposal.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements, unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
This proposal will not have a significant impact on a substantial 
number of small entities because a finding of failure to attain under 
section 181(b)(2) of the CAA, and the establishment of a SIP submittal 
schedule for the reclassified area, do not, in and of themselves, 
directly impose any new requirements on small entities. See Mid-Tex 
Electric Cooperative, Inc. v. FEC., 773 F.2d 327 (D.C. Cir. 1985) 
(agency's certification need only consider the rule's impact on 
entities subject to requirements of the rule). Instead, this proposal 
proposes to make a determination and to establish a schedule for states 
to submit SIP revisions and does not propose to directly regulate any 
entities. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must, unless otherwise prohibited by law, prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated annual costs to state, 
local, or tribal governments in the aggregate; or to private sector, of 
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    Sections 202 and 205 do not apply to today's action because the 
proposed determination that the Louisville area failed to reach 
attainment does not, in-and-of-itself, constitute a Federal mandate 
because it does not impose an enforceable duty on any entity. In 
addition, the CAA does not permit EPA to consider the types of analyses 
described in section 202, in determining whether an area has attained 
the ozone standard or qualifies for an extension. Finally, section 203 
does not apply to today's proposal because the SIP submittal schedule 
would affect only the states of Kentucky and Indiana, which are not 
small governments.

List of Subjects in 40 CFR Part 81

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

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

    Dated: May 4, 1999.
John H. Hankinson, Jr.,
Regional Administrator, Region 4.

    Dated: May 12, 1999.
Richard C. Karl,
Acting Regional Administrator, Region 5.
[FR Doc. 99-12751 Filed 5-20-99; 8:45 am]
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