[Federal Register Volume 66, Number 96 (Thursday, May 17, 2001)]
[Proposed Rules]
[Pages 27483-27487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12439]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[KY-200108; IN121-1; FRL-6982-2]


Determination of Attainment of Ozone Standard by Louisville, 
Kentucky and Indiana, Area and Determination Regarding Applicability of 
Certain Reasonable Further Progress and Attainment Demonstration 
Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to determine that the Louisville moderate 
ozone nonattainment area (Louisville area) has attained the 1-hour 
ozone National Ambient Air Quality Standard (NAAQS). The Louisville 
area includes Jefferson County and portions of Bullitt and Oldham 
Counties, Kentucky, and Clark and Floyd Counties, Indiana. This 
proposed determination is based on three years of complete, quality-
assured, ambient air monitoring data for the 1998 to 2000 ozone seasons 
that demonstrate that the area has attained the 1-hour ozone NAAQS. On 
the basis of this determination, EPA is also proposing to determine 
that State Implementation Plan (SIP) submissions for certain reasonable 
further progress (RFP) and attainment demonstration requirements, along 
with certain other related requirements of part D of Title 1 of the 
Clean Air Act (CAA) are no longer required for the Louisville area for 
so long as the area continues to attain the 1-hour ozone NAAQS. All 
previously-approved SIP revisions must continue to be implemented and 
enforced and are not affected by this action.

DATES: Written comments on EPA's proposed action must be received on or 
before June 18, 2001.

ADDRESSES: All comments should be addressed to: Allison Humphris, 
Environmental Scientist, Regulatory Planning Section, Air Planning 
Branch, U.S. Environmental Protection Agency, 61 Forsyth Street, SW, 
Atlanta, Georgia, 30303. J. Elmer Bortzer, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. A copy of the air quality data and EPA's analysis are 
available at the following addresses for inspection during normal 
business hours: United States Environmental Protection Agency, Region 
4, Air Planning Branch, Regulatory Planning Section, 61 Forsyth Street, 
SW, Atlanta, Georgia 30303-8960. United States Environmental Protection 
Agency, Region 5, Air Programs Branch (AR-18J), Regulation Development 
Section, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Allison Humphris, Environmental 
Scientist, Regulatory Planning Section, Air Planning Branch, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, 
Atlanta, Georgia, 30303, (404) 562-9030, ([email protected]). 
Ryan Bahr, Environmental Engineer, Regulation Development Section, Air 
Programs Branch (AR-18J), United States Environmental Protection 
Agency, Region 5, Chicago, Illinois 60604, (312) 353-4366, 
([email protected]).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Determination of Attainment
    A. What action is EPA proposing to take?
    B. Why is EPA taking this action?
    C. How was the number of estimated exceedances at the 
Charlestown Monitor determined?
    D. What would be the effect of this action?
    E. What is the background for this action?
    F. Where is the public record and where do I send comments?
II. What administrative requirements did EPA consider?

I. Determination of Attainment

A. What Action is EPA Proposing to Take?

    The EPA is proposing to determine that the Louisville area has 
attained the 1-hour ozone NAAQS. The Louisville area includes Jefferson 
County and portions of Bullitt and Oldham Counties, Kentucky, and Clark 
and Floyd Counties, Indiana. On the basis of this determination, EPA is 
also determining that certain requirements of part D of Title I of the 
CAA do not apply to the Louisville area. SIP submittals based on these 
requirements are no longer required so long as the Louisville area 
continues to attain the NAAQS. These requirements include RFP (see the 
general requirement of section 172(c)(2) and the more specific 
requirement of section 182(b)(1) for a plan that reduces volatile 
organic compound (VOC) emissions by 15%), attainment demonstration (see 
the general requirement of section 172(c)(1)) and the specific 
requirement of section 182(j) for a multi-state attainment 
demonstration) and contingency measures (see the general requirement of 
section 172(c)(9)). Making these sections inapplicable to the area 
means that the States are not required to

[[Page 27484]]

submit future SIP revisions related to the sections cited above 
regarding attaining the NAAQS. Furthermore, EPA would not be required 
to act on the planning SIPs that have been submitted and not yet 
approved. However, all previously-approved SIP revisions must continue 
to be implemented and enforced and are not affected by this action. In 
addition EPA will continue to process any submittals that have not yet 
been approved and revise the SIP to incorporate State- and locally-
adopted rules and other legally-enforceable requirements which have 
helped the area come into attainment prior to the effective date for 
this rule. This will ensure that the rules the area has depended on for 
attainment are permanent and enforceable as part of the SIP.

B. Why is EPA Taking This Action?

    The EPA proposes to make this determination for the Louisville area 
because complete, quality-assured, ambient air monitoring data for the 
1998 to 2000 ozone seasons demonstrate that the 1-hour ozone NAAQS has 
been attained in the entire Louisville area. For ozone, an area may be 
considered attaining the 1-hour ozone NAAQS if there are no violations, 
as determined in accordance with 40 CFR 50.9 and appendix H, based on 
three complete, consecutive calendar years of quality-assured ambient 
monitoring data. A violation of the 1-hour ozone NAAQS occurs when the 
annual average number of expected exceedances at a monitoring site is 
greater than 1.0 per year, using conventional rounding techniques.
    The calculation for expected exceedances in a three-year period is 
computed by averaging the three estimated exceedances (one for each of 
the three years) during this period. The calculation for the estimated 
exceedances takes into account not only the number of exceedances 
during a given ozone season, but also completeness of data, and days in 
the ozone season that can be assumed to be less than the level of the 
standard. An example calculation of estimated exceedances at the 
Charlestown monitor is given in section C. A daily exceedance occurs 
when the maximum hourly ozone concentration during a given day is 
greater than 0.12 parts per million (ppm), using conventional rounding 
techniques. Monitoring data must be collected and quality-assured in 
accordance with 40 CFR part 58, and recorded in EPA's Aerometric 
Information Retrieval System (AIRS). The monitors should have remained 
at the same location for the duration of the monitoring period required 
for demonstrating attainment.
    The Commonwealth of Kentucky Natural Resources and Environmental 
Protection Cabinet (Cabinet) and the Indiana Department of 
Environmental Management (IDEM) submitted quality-assured ozone 
monitoring data to EPA for the 1998 to 2000 ozone monitoring seasons. 
Table 1 below summarizes these air quality data.

       Table 1.--1-hour Ozone NAAQS Exceedances in the Louisville, Kentucky-Indiana Area from 1998 to 2000
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                                                                                        Exceedances   Estimated
                   Site                                 County                 Year       measured   exceedances
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Charlestown...............................  Clark, IN....................         1998            3          3.1
Charlestown...............................  Clark, IN....................         1999            0          0.0
Charlestown...............................  Clark, IN....................         2000            0          0.0
New Albany................................  Floyd, IN....................         1998            2          2.0
New Albany................................  Floyd, IN....................         1999            0          0.0
New Albany................................  Floyd, IN....................         2000            0          0.0
Bates.....................................  Jefferson, KY................         1998            1          1.2
Bates.....................................  Jefferson, KY................         1999            0          0.0
Bates.....................................  Jefferson, KY................         2000            0          0.0
Buckner...................................  Oldham, KY...................         1998            1          1.1
Buckner...................................  Oldham, KY...................         1999            1          1.2
Buckner...................................  Oldham, KY...................         2000            0          0.0
Sheperdsville.............................  Bullitt, KY..................         1998            0          0.0
Sheperdsville.............................  Bullitt, KY..................         1999            0          0.0
Sheperdsville.............................  Bullitt, KY..................         2000            0          0.0
Watson....................................  Jefferson, KY................         1998            1          1.2
Watson....................................  Jefferson, KY................         1999            0          0.0
Watson....................................  Jefferson, KY................         2000            0          0.0
WLKY-TV...................................  Jefferson, KY................         1998            1          1.1
WLKY-TV...................................  Jefferson, KY................         1999            0          0.0
WLKY-TV...................................  Jefferson, KY................         2000            0          0.0
----------------------------------------------------------------------------------------------------------------

    During the 1998 to 2000 time period, the Charlestown monitor 
recorded a total of 3 exceedances, with all 3 exceedances occurring 
during 1998. Remaining monitors recorded 2 or fewer exceedances for 
this same time period. Calculation of the estimated exceedances for 
1998 for the Charlestown monitor, in accordance with 40 CFR part 50, 
appendix H, yields 3.1 estimated exceedances for 1998. Due to no 
exceedance occurring at the Charlestown monitor in 1999 or 2000, the 
total estimated exceedances for the years of 1998 through 2000 is also 
3.1, or 1.0 average expected exceedance per year. This indicates that 
the monitoring site with the most exceedances is attaining the 1-hour 
ozone NAAQS. As a result, the Louisville area is currently meeting the 
air quality requirement for this determination of attainment of the 1-
hour ozone NAAQS.

C. How was the Number of Estimated Exceedances at the Charlestown 
Monitor Determined?

    During the 1998 to 2000 time period, the Charlestown monitor was 
determined to have a total of 3.1 estimated exceedances. This value was 
determined in accordance with 40 CFR 50.9 and appendix H, as follows: e 
= v + [(v/n)*(N-n-z)] where:

[[Page 27485]]



------------------------------------------------------------------------
                                    Value for
                                   Charlestown
      Variable description        monintor for           Comments
                                      1998
------------------------------------------------------------------------
e = the estimated number of                 3.1  Calculated.
 exceedances for the year.
N = the number of required                  183  Indiana's ozone season
 monitoring days in the year.                     is April 1-September
                                                  30.
n = the number of valid daily               172  Days with valid data
 maxima.                                          based on 40 CFR part
                                                  50 and appendix H.
v = the number of daily values                3  Based on monitored
 above the level of the                           values.
 standard.
z = the number of days assumed                3  Based on 40 CFR part
 to be less than the standard                     50. Appendix H, for
 level.                                           days that were likely
                                                  below the standard.
------------------------------------------------------------------------

    The current version of the AIRS database calculates the Charlestown 
monitor as having 3.2 estimated exceedances during the 1998 ozone 
season, based on the availability of valid AIRS data for 172 out of 183 
ozone season days. However, EPA has determined, in accordance with 40 
CFR part 50, appendix H, that for three days during the 1998 ozone 
monitoring season for which no air quality data was available, it is 
highly unlikely that the ozone NAAQS was exceeded, and air quality can 
be assumed to have been below the ozone NAAQS. Part 50, appendix H 
states, in part, that: ``Some allowance should also be made for days 
for which valid daily maximum hourly values were not obtained but which 
would quite likely have been below the standard.'' It then suggests a 
criterion that ``may be used'' for ozone. Since appendix H lists only a 
permissible, but not exclusive method for determining when a missing 
value may be assumed to have been below the standard, it leaves room 
for Agency discretion to define alternative conditions for making such 
a determination. For two days early in the 1998 ozone monitoring season 
(April 3-4, 1998), this conclusion is based on records of valid daily 
maxima well below the standard for the remaining 6 Louisville area 
monitors and overwhelming meteorological evidence that conditions were 
not highly conducive to ozone formation. In addition, no exceedances 
have ever been recorded at this monitoring site in early April. For a 
third day (August 1, 1998), this conclusion is based on records of 
valid daily maxima below the 75 percent level of the standard for the 
Charlestown monitor for the days immediately preceding and following 
this date. Calculation of the estimated exceedances for the Charlestown 
monitor using the above equation, and assuming that the ozone standard 
was not exceeded for 175 out of 183 ozone season days yields a total of 
3.1 estimated exceedances for the 1998 ozone season. Since no 
exceedance was recorded for 1999 or 2000, the average number of 
expected exceedances for this monitor are 1.0 per year for the three-
year period of 1998 through 2000, using conventional rounding 
techniques.

D. What Would Be the Effect of This Action?

    The EPA believes it is reasonable to interpret that the Clean Air 
Act provisions regarding RFP and attainment demonstrations, along with 
certain other related provisions, do not require certain SIP 
submissions if an ozone nonattainment area subject to those 
requirements is monitoring attainment of the ozone standard (i.e., has 
three consecutive years of complete, quality-assured, air quality 
monitoring data) without those provisions being implemented. 
Specifically, the requirements of sections 172(c)(1) and 182(j) 
concerning submission of an ozone attainment demonstration, the 
requirements of sections 172(c)(2) and 182(b)(1) concerning submission 
of a 15% VOC emission reduction plan, and the requirements of section 
172(c)(9) concerning contingency measures for RFP or attainment will 
not be applicable to the Louisville area. EPA intends, however, to 
approve the regulations that were submitted by the Commonwealth with 
its 15% plan, since these regulations were adopted by the Commonwealth 
or the Air Pollution Control District of Jefferson County prior to 1998 
and provided permanent and enforceable reductions for the Louisville 
area during the 1998 to 2000 ozone seasons. Likewise, previously-
approved SIP revisions must continue to be implemented and enforced and 
are not affected by this action.
    The above determinations are contingent upon continued monitoring 
and continued attainment and maintenance of the 1-hour ozone NAAQS in 
the Louisville area. If a violation of the 1-hour ozone NAAQS is 
monitored in any of the five counties, EPA will initiate rulemaking 
action to reinstate these requirements in the Federal Register. A 
violation in any of the five counties would mean that the entire area 
would thereafter have to address the above-cited requirements, since 
the basis for the determination that they do not apply would no longer 
exist.

E. What Is the Background for this Action?

    Subpart 2 of part D of Title I of the CAA contains various air 
quality planning and SIP submission requirements for 1-hour ozone 
nonattainment areas. EPA interprets the general provisions of subpart 1 
of part D of Title I (sections 171 and 172) and the more specific 
attainment demonstration and related provisions of subpart 2 (section 
182) to not require the submission of SIP revisions concerning RFP, 
attainment demonstrations, or contingency measures for areas where the 
monitoring data show that the area is attaining the 1-hour ozone 
standard (See Sierra Club vs EPA, 99 F.3d 1551 (10th Cir. 1996)). This 
rationale is described in a memorandum from John S. Seitz, Director, 
Office of Air Quality Planning and Standards, entitled ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard,'' dated May 10, 1995. EPA has previously applied this 
interpretation in a number of areas, including Cincinnati (65 FR 37879 
(June 19, 2000)), Grand Rapids (61 FR 31831 (June 21, 1996)), Cleveland 
(61 FR 20458 (May 7, 1996)), and Salt Lake City (60 FR 36723 (July 18, 
1995)).
    First, with respect to RFP, section 171(1) states that, for 
purposes of part D of Title I, RFP ``means such annual incremental 
reductions in the emissions of the relevant air pollutant as are 
required by this part or may be reasonably required by the 
Administrator for the purpose of ensuring attainment of the applicable 
national ambient air quality standard by the applicable date.'' Thus, 
whether dealing with the general RFP requirement of section 172(c)(2), 
or the more specific RFP requirements of subpart 2 for classified ozone

[[Page 27486]]

nonattainment areas (such as the 15% plan requirement of section 
182(b)(1)), the stated purpose of RFP is to ensure attainment by the 
applicable attainment date. If an area has, in fact, attained the 
standard without implementing RFP, the stated purpose of the RFP 
requirement will have already been fulfilled, and EPA does not believe 
that the area need submit SIP revisions providing for the further 
emission reductions described in the RFP provisions of section 
182(b)(1).
    EPA notes that it took this view with respect to the general RFP 
requirement of section 172(c)(2) in the General Preamble for the 
Interpretation of title I of the Clean Air Act Amendments of 1990 (57 
FR 13498, April 6, 1992), and it is now extending that interpretation 
to the specific provisions of subpart 2. In the General Preamble, EPA 
stated, in the context of a discussion of the requirements applicable 
to the evaluation of requests to redesignate nonattainment areas to 
attainment, the ``requirements for RFP will not apply in evaluating a 
request for redesignation to attainment since, at a minimum, the air 
quality data for the area must show that the area has already attained. 
Showing that the state will make RFP towards attainment will, 
therefore, have no meaning at that point.'' (57 FR 13564).
    Second, with respect to attainment demonstration requirements, an 
analogous rationale can be applied. Section 182(b)(1) requires that the 
plan provide for ``such specific annual reductions in emissions * * * 
as necessary to attain the national primary ambient air quality 
standard by the attainment date applicable under the CAA.'' If an area 
has in fact monitored attainment of the relevant NAAQS, EPA believes 
there is no need for an area to make a further submission containing 
additional measures to achieve attainment. This is also consistent with 
the interpretation of certain section 172(c) requirements provided by 
EPA in the General Preamble to Title I. As stated in the Preamble, no 
other measures to provide for attainment would be needed by areas 
seeking redesignation to attainment since ``attainment will have been 
reached'' (57 FR 13564). Upon attainment of the NAAQS, the focus of 
state planning efforts shifts to the maintenance of the NAAQS and the 
development of a maintenance plan under section 175A.
    Finally, similar reasoning applies to the contingency measure 
requirements of section 172(c)(9) of the CAA. EPA has previously 
interpreted the contingency measure requirement of section 172(c)(9) as 
no longer being applicable once an area has attained the standard since 
those ``contingency measures are directed at ensuring RFP and 
attainment by the applicable date'' (57 FR 13564). EPA has excercised 
this policy most recently in approvals for the Cincinnati, Ohio, and 
Muskegon, Michigan, areas (65 FR 37879 and 65 FR 52651).
    EPA emphasizes that the lack of a requirement to submit the SIP 
revisions discussed above exists for only so long as an area designated 
nonattainment continues to attain the standard. If EPA subsequently 
determines that such an area has violated the NAAQS, the basis for the 
determination that the area need not make the pertinent SIP revisions 
would no longer exist. EPA would notify the state of that determination 
and would also provide notice to the public in the Federal Register. 
Such a determination would mean that the area would have to address the 
pertinent SIP requirements within a reasonable amount of time, which 
EPA would establish taking into account the individual circumstances 
surrounding the particular SIP submissions at issue. Thus, a 
determination that an area need not submit one of the above-mentioned 
SIP submittals amounts to no more than a determination that new 
submittals are no longer required for the Louisville area for so long 
as the area continues to attain the standard.
    The state must continue to operate an appropriate air quality 
monitoring network, in accordance with 40 CFR part 58, to verify the 
attainment status of the area. The air quality data relied upon to 
determine that the area is attaining the 1-hour ozone NAAQS must be 
consistent with 40 CFR part 58 requirements and other relevant EPA 
guidance and recorded in AIRS.
    The determination that is being made with this Federal Register 
document is not equivalent to redesignation of this area to attainment. 
Attainment of the ozone NAAQS is only one of the criteria set forth in 
section 107(d)(3)(E) that must be satisfied for an area to be 
redesignated to attainment. To be redesignated, the state must submit 
and receive full approval of a redesignation request for the area that 
satisfies all of the criteria of that section, including the 
requirement of a demonstration that the improvement in the area's air 
quality is due to permanent and enforceable reductions and the 
requirement that the area have a fully approved SIP meeting all of the 
applicable requirements under section 110 and part D and a fully 
approved maintenance plan.
    The determinations made in this document do not shield an area from 
future EPA action to require emissions reductions from sources in the 
area where there is evidence, such as photochemical grid modeling, 
showing that emissions from sources in the area contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other states with respect to the NAAQS (see section 110(a)(2)(D)). 
The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of 
the CAA to require such emission reductions if necessary and 
appropriate to deal with transport situations.

F. Where Is the Public Record and Where Do I Send Comments?

    The official record for this proposed rule is located at the 
addresses in the ADDRESSES section at the beginning of this document. 
The addresses for sending comments are also provided in the ADDRESSES 
section at the beginning of this document. Public comments are 
solicited on EPA's proposed rulemaking action. Public comments received 
by June 18, 2001 will be considered in the development of EPA's final 
rulemaking action.

II. What Administrative Requirements did EPA Consider?

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This proposed 
action merely proposes to determine that air quality meets federal 
requirements and imposes no additional requirements. Accordingly, the 
Administrator certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule proposes to determine that air quality meets federal 
requirements and does not impose any additional enforceable duty, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Public Law 104-4). This rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255,

[[Page 27487]]

August 10, 1999), because it determines that air quality meets federal 
requirements, and does not alter the relationship or the distribution 
of power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    This rule does not involve technical standards, but air quality 
considerations governed by federal regulations. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

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

    Dated: April 20, 2001.
    Dated: May 8, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
Norman Neidergang,
Acting Regional Administrator, Region 5.
[FR Doc. 01-12439 Filed 5-16-01; 8:45 am]
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