[Federal Register Volume 70, Number 95 (Wednesday, May 18, 2005)]
[Rules and Regulations]
[Pages 28429-28436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9905]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R04-OAR-2004-KY-0002-200511; FRL-7914-5]


Approval and Promulgation of Implementation Plans for Kentucky: 
Inspection and Maintenance Program Removal for Jefferson County, 
Kentucky; Source-Specific Nitrogen Oxides Emission Rate for Kosmos 
Cement Kiln

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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[[Page 28430]]

SUMMARY: EPA is approving a revision to the Jefferson County, Kentucky, 
portion of the Kentucky State Implementation Plan (SIP) requesting 
removal of three regulations from the regulatory portion of the 
Kentucky SIP related to the Jefferson County inspection and maintenance 
(I/M) program. EPA is approving Kentucky's September 22, 2003, SIP 
revision to move these I/M regulations to the contingency measures 
section of the Kentucky portion of the Louisville 1-Hour Ozone 
Maintenance Plan. EPA is also approving a source-specific SIP revision 
amending the nitrogen oxides (NOX) emission rate for Kosmos 
Cement Company's cement kiln. This final rule addresses comments made 
on EPA's proposed rulemaking previously published for this action.

DATES: This rule will be effective June 17, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID No. R04-OAR-2004-KY-0002. All documents in 
the docket are listed in the RME index at http://docket.epa.gov/rmepub/
, once in the system, select ``quick search,'' then key in the 
appropriate RME Docket identification number. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the contact listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, Region 4, U.S. Environmental Protection Agency, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be 
reached via telephone number at (404) 562-9031 or electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Today's Action
II. Background
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. Today's Action

    EPA is approving revisions to the Jefferson County, Kentucky, 
portion of the Kentucky SIP related to the Jefferson County I/M 
program, also known as the Jefferson County Vehicle Emissions Testing 
(VET) Program. Through this final action, EPA is approving the movement 
of three regulations which comprise the Jefferson County VET Program 
from the regulatory portion of the Kentucky SIP to the contingency 
measures section of the Kentucky portion of the Louisville 1-Hour Ozone 
Maintenance Plan, which is part of the Kentucky SIP. The three 
Jefferson County VET Program regulations which are subject to today's 
action are: Regulation 8.01, ``Mobile Source Emissions Control 
Requirements,'' Regulation 8.02, ``Vehicle Emissions Testing 
Procedure,'' and Regulation 8.03, ``Commuter Vehicle Testing 
Requirements.'' Also in this final action EPA is approving a source-
specific SIP revision for changes reflected in the May 3, 2004, Board 
Order for the Kosmos Cement Company's cement kiln. EPA is approving the 
revisions to the Board Order which lower the kiln's NOX 
emission rate to 4.755 pounds per ton of clinker produced (pptcp) by 
the kiln, based upon a rolling 30-day average. In addition, EPA is 
responding to the adverse comments received on the January 3, 2005, 
rulemaking proposing to approve the aforementioned revisions (70 FR 
53).

II. Background

    On January 3, 2005, EPA proposed approval of Kentucky's September 
22, 2003, SIP revision request to move the three, SIP-approved 
Jefferson County VET Program regulations to the contingency measures 
section of the Kentucky SIP, and to lower the NOX emission 
rate for the Kosmos Cement Company's cement kiln (70 FR 53). The 
emissions reductions from the Kosmos Cement Company provide 
compensating, equivalent emissions reductions for the Jefferson County 
VET Program. (See the proposed rule published January 3, 2005, at 70 FR 
53 for further background and a detailed analysis of the complete 
September 22, 2003, SIP revision.) EPA received adverse comments on the 
proposed rule. In today's action, EPA is responding to the adverse 
comments received.

III. Response to Comments

    Comment 1: The commenter writes that the SIP revision is 
unapprovable because Jefferson County is violating both the 8-hour 
ozone and fine particulate matter (PM2.5) NAAQS, to which 
the VET Program contributed emissions reductions. A plain reading of 
Section 110(l) of the Clean Air Act (CAA) requires that the Louisville 
Metro Air Pollution Control District (LMAPCD) first determine whether 
the I/M program will be necessary for achievement of the 8-hour ozone 
(and PM2.5) standards prior to approval of removal of the 
measure from the current SIP. Another commenter also questions what is 
the justification for terminating the VET Program.
    Response 1: Jefferson County, Kentucky is designated nonattainment 
for the 8-hour ozone and PM2.5 NAAQS. Control strategy SIP 
revisions showing how the area will attain these NAAQS are due June 15, 
2007, for the 8-hour ozone standard and April 5, 2008, for the 
PM2.5 standard, unless the area attains the standards prior 
to these due dates. These control strategy SIPs will identify the 
control measures that will be used to help the area attain the NAAQS. 
The control measures will be selected by the Commonwealth of Kentucky 
after public notice and comment.
    In a May 11, 2004, letter from EPA to Louisville's Assistant County 
Attorney, EPA provided its interpretation of section 110(l) of the 
Clean Air Act as guidance in relation to an area such as Jefferson 
County that does not yet have an attainment demonstration for the 8-
hour ozone nor for the PM2.5 NAAQS. Prior to the time when 
the control strategy SIP revisions are due, to demonstrate no 
interference with any applicable NAAQS or requirement of the Clean Air 
Act under section 110(l), EPA has interpreted this section such that 
States can substitute equivalent (or greater) emissions reductions to 
compensate for the control measure being moved from the regulatory 
portion of the SIP to the contingency provisions. As long as actual 
emissions in the air are not increased, EPA believes that equivalent 
(or greater) emissions reductions will be acceptable to demonstrate 
non-interference. EPA does not believe that areas must wait to produce 
a complete attainment demonstration to make any revisions to the SIP, 
provided the status quo air quality is preserved. EPA believes this 
will not interfere with an area's ability to develop a timely 
attainment demonstration. As an acceptable means to demonstrate no 
interference in order

[[Page 28431]]

to satisfy section 110(l) of the CAA, the submittal provides for 
equivalent emissions reductions from the Kosmos Cement Company to 
replace the NOX and volatile organic compound (VOC) 
emissions reductions previously gained from the VET Program to ensure 
actual emissions in the air are not increased pending development of a 
complete attainment demonstration for the new 8-hour ozone and 
PM2.5 standards. Even if the area ultimately determines that 
an I/M program should again be instituted as part of those future 
attainment demonstrations, since air quality has not been adversely 
affected in the interim, EPA believes that 110(l) will be satisfied.
    As for the 1-hour ozone and carbon monoxide (CO) NAAQS, Kentucky 
has demonstrated through air quality analyses that the VET Program is 
not needed for the Kentucky portion of the Louisville area in order to 
continue to maintain those NAAQS. VOC and NOX emissions 
remain below 1999 attainment year levels to support movement of the 
program to a contingency measure in the Kentucky portion of the 
Louisville 1-Hour Ozone Maintenance Plan. Finally, since mobile source 
winter CO emission levels continuously decline from 1999 through 2020, 
EPA concludes that no potential interference with the CO standard will 
result from this action. (For the complete analysis, see pages 56-57 of 
proposed rule, 70 FR 53, published January 3, 2005.)
    The commenter also questions whether a demonstration of non-
interference is needed for air toxics, also known as hazardous air 
pollutants (HAPs). An I/M program is not designed to reduce HAPs, 
however, the program does reduce emissions of VOCs, several of which 
are HAPs. Since there are no ambient air quality standards established 
for HAPs, the area must demonstrate that the SIP revision will not 
interfere with any applicable air toxics rules. There are no air toxics 
rules that apply to motor vehicles, thus removal of the VET Program 
does not interfere with any Federal standards that might apply. 
Furthermore, a change to requirements that apply to mobile sources in 
the area does not interfere with implementation of Federal air toxics 
rules i.e., maximum achievable control technology (MACT) standards, 
that apply to stationary sources in the area. The EPA thus concludes 
that non-interference relative to air toxics has been demonstrated.
    Comment 2: The commenter states that, ``EPA has issued policy 
interpretations that sweep the non-interference obligation under the 
regulatory rug and which clearly undercut 110(l) through a substantive 
agency interpretation, not properly promulgated as a regulation under 5 
U.S.C. 553 despite an obvious and dramatic effect of altering the 
applicability of law, and which proffers an interpretation of 110(l) 
that flunks the first step of Chevron.'' The commenter believes the 
``strict'' interpretation of Section 110(l) which EPA describes in its 
May 11, 2004, letter to the District is the only interpretation 
consistent with the plain language and intent of the Act, and that 
removal of an approved and implemented control measure controlling both 
precursors of ozone and particulates, at a time when it is not known 
what additional reductions will be needed to attain the 8-hour ozone 
and fine particulates standard in the Jefferson County airshed, is of 
questionable legality. Until EPA completes the guidance on what 
constitutes ``interference,'' EPA defense of an ad-hoc finding of 
``non-interference'' appears unsubstantiated.
    Response 2: EPA is authorized by Congress to issue interpretations 
of ambiguous provisions of the Clean Air Act without promulgating a 
regulation. Through the January 3, 2005, proposed rule (70 FR 53), EPA 
sought public comment on its current interpretation of 110(l) of the 
Act. EPA has evaluated the comments and believes its interpretation to 
be reasonable. EPA is taking final action on this interpretation in 
this rulemaking action, which has undergone appropriate notice-and-
comment procedures, and EPA is here responding to all comments 
submitted on this issue. EPA concludes that the language in section 
110(l) is not clear on its face with respect to the demonstrations 
necessary to show non-interference in the absence of an approved 
attainment demonstration. Rather, EPA believes section 110(l) is 
ambiguous with respect to the appropriate test for these areas, and 
consequently EPA has the discretion to interpret section 110(l) for 
these areas consistent with the Act as a whole. EPA believes that so 
long as substitute reductions are achieved such that ambient air 
quality levels in the area are not adversely affected in the interim, 
SIP revisions will not interfere with an area's obligations to develop 
timely demonstrations of attainment and reasonable further progress. 
Consequently, since substitute reductions have been submitted in this 
case, EPA concludes that the Agency is authorized to approve this SIP 
revision consistent with section 110(l).
    Comment 3: The commenter states that the NOX reductions 
achieved by Kosmos occurred prior to the 2003 ozone season, yet the 
community had numerous incidents of exceedances of ozone standards even 
with the Kosmos emissions reductions and the VET Program. Substituting 
already-achieved emissions reductions that were insufficient to prevent 
violations during the previous ozone season do not provide any new 
reductions to offset those lost. The District must provide new actual 
reductions, not ones that have already been achieved.
    Response 3: EPA clarifies that the Louisville area has had no 1-
hour ozone NAAQS exceedances since the area was redesignated to 
attainment for that standard in a final action published October 23, 
2001, 66 FR 53665. Regarding exceedances of the 8-hour ozone NAAQS 
during the 2003 ozone season, Kentucky has provided substitute, 
equivalent emissions reductions that meet the criteria set forth in 
EPA's proposed rulemaking published January 3, 2005 (70 FR 53) to 
demonstrate no interference with the 8-hour ozone and PM2.5 
NAAQS. (See Response 1.) EPA believes that this equivalent 
substitution of emissions to ensure no net emissions change into the 
air is allowable regardless of whether the area is meeting the 8-hour 
ozone or PM2.5 NAAQS. Enacting the equivalent reductions at 
Kosmos prior to (rather than after) the cessation of the VET Program 
provides additional assurance that there is no net emissions increase 
to the air for any period of time. The control strategy SIP for the 
area will ultimately demonstrate how the Louisville area will meet the 
8-hour ozone and PM2.5 NAAQS as noted in Response 
1.
    The NOX emissions reductions at Kosmos, as reflected in 
the emission rate reduction to 4.755 pptcp of NOX, are new 
or ``surplus'' for two reasons. The reduction is not from a Federal 
Control Measure that would occur without any state or local action and 
the emission rate reduction is below what is already required in the 
Jefferson County portion of the Kentucky SIP. (For additional details, 
refer to the proposed rulemaking published January 3, 2005, at 70 FR 
53.) Although the NOX emissions reductions at Kosmos 
occurred eight months prior to the closing of the VET Program, these 
reductions are considered new reductions based on EPA's policy of 
supporting early implementation of control measures to achieve early 
emissions reductions. This policy is commonly applied, for example, to 
enact contingency measures prior to the occurrence of a NAAQS violation 
in an area. This policy of allowing early

[[Page 28432]]

emissions reductions was upheld in the September 8, 2004, 5th Circuit 
decision (Louisiana Environmental Action Network v. EPA, 382 F.3d 575 
(5th Cir. 2004)).
    Comment 4: Is there a guidance document EPA uses to determine 
whether proposed substitutions of emissions reductions are acceptable?
    Response 4: Yes, the Agency is using several guidance documents to 
assess the legality of accepting compensating emissions reductions. 
These guidance documents are listed below, and further described in the 
January 3, 2005, proposed rule (70 FR 53) with information on how to 
obtain copies.
    The EPA guidance memorandum from John Calcagni, Director, Air 
Quality Management Division, to the Air Directors in EPA Regions 1-10, 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' September 4, 1992, is currently being used. On pages 10 
and 13, the guidance allows areas redesignated to attainment for the 
NAAQS to move control measures from the regulatory portion of the SIP 
to the contingency plan if they are not needed to maintain the NAAQS 
and if compensating equivalent emissions reductions are provided. The 
guidance notes that a demonstration that measures are equivalent would 
have to include appropriate modeling or an adequate justification. This 
1992 memorandum pertains to the NAAQS in existence at the time, which 
include the 1-hour ozone and CO NAAQS. EPA is currently drafting 
guidance that specifically addresses section 110(l).
    Guidance EPA is using as precedence to determine the acceptability 
of substituting NOX for VOC emissions reductions in the 
Louisville case is the August 5, 1994, EPA memorandum, ``Clarification 
of Policy for Nitrogen Oxides (NOX) Substitution,'' from 
John Seitz, Director, Office of Air Quality Planning and Standards. 
This memorandum pertains to EPA's ``NOX Substitution 
Guidance'' (December 1993). The guidance acknowledges that controlling 
only VOCs may not be the most effective approach in all areas for 
attaining the ozone standard and allows for substitution of 
NOX emissions reductions for VOC emissions reductions as 
appropriate, contingent upon approval by EPA.
    Two items of correspondence from EPA that serve as guidance are 
also described in the January 3, 2005, proposed rule (70 FR 53). The 
Agency is using the May 12, 2004, EPA Memorandum from Tom Helms, Group 
Leader, Ozone Policy and Strategies Group, Office of Air Quality 
Planning and Standards, and Leila H. Cook, Group Leader, State Measures 
and Conformity Group, Office of Transportation and Air Quality, to the 
Air Program Managers, the subject of which is ``1-Hour Ozone 
Maintenance Plans Containing Basic I/M Programs.'' The May 12, 2004, 
memorandum addresses the application of 8-hour ozone anti-backsliding 
provisions to basic I/M programs in 1-hour ozone maintenance areas. In 
addition, EPA is using a May 11, 2004, letter from the Agency to 
Louisville's Assistant County Attorney to provide the Agency's current 
interpretation of section 110(l) of the Clean Air Act as guidance in 
relation to an area such as Jefferson County that does not yet have an 
attainment demonstration for the new 8-hour ozone and PM2.5 
NAAQS.
    Comment 5: The commenter states that it has not been demonstrated, 
through appropriate modeling and analysis, that reductions of 
NOX from tall stack emissions controls would yield the same 
or better air quality benefit in ozone formation reduction as from 
ground-level exhaust emissions of both VOCs and NOX from 
continued implementation of the I/M program.
    Response 5: The May 26, 2004, supplement to the September 22, 2003, 
SIP submittal provides information to address the equivalency of 
NOX emissions reductions from Kosmos Cement Company, a point 
source, to replace low-level, area reductions of NOX and VOC 
gained by the VET Program. This information is discussed under the 
third response of the LMAPCD Comment and Response document. In summary, 
the LMAPCD document provides existing modeling for the area that shows 
NOX emissions reductions are beneficial to the Louisville 
area and that NOX emissions reduction scenarios in all cases 
in the Louisville area resulted in a greater reduction of ozone 
concentrations than the VOC reduction scenarios. Modeling to 
demonstrate the air quality impacts from this specific scenario was not 
developed. Modeling was not needed to support this equivalency 
demonstration because it is unlikely that the small emission changes 
involved in the removal of the VET Program and additional reductions 
from the Kosmos cement kiln would be noticeable in the modeling or have 
any noticeable effects on ozone formation in the modeling. The 
photochemical models are more suited to assessing the aggregate effects 
of the many control measures used in an attainment strategy for an 
urban area. However, sensitivity modeling of emissions reductions on 
source categories can be used to provide directional information on the 
effectiveness of precursor reductions. Such information was provided 
through the sensitivity modeling developed for the 1-hour ozone NAAQS 
for the Louisville area. This modeling demonstrates that areawide ozone 
coverages for concentrations greater than the ozone standard are more 
effectively reduced with NOX emissions reductions than with 
VOC reductions. The Louisville modeling does show that VOC emissions 
reductions are beneficial, but on a more localized level, whereas 
NOX emissions reductions are beneficial over a larger area. 
In conclusion, EPA finds the analysis detailed in the Comment and 
Response document adequate to demonstrate that point source 
NOX reductions will yield the same or better air quality 
benefit in reducing ozone formation as low-level, areawide emissions 
reductions of VOC and NOX.
    Comment 6: The commenter states that the emissions reductions at 
Kosmos are clearly not contemporaneous since they occurred in March 
2003, nearly two years ago. The use of the November 2003 date to 
measure the contemporaneousness of the emissions reductions would 
reward Louisville for having terminated the program unlawfully, and is 
inappropriate given that the termination of the program has not yet 
been lawfully approved and it remains a component of the SIP. The time 
frame in which the reductions must be viewed as ``contemporaneous'' for 
purposes of substituting other measures in a maintenance plan, must be 
the date of lawful cessation of the I/M Program on approval by EPA.
    Response 6: While ``contemporaneous'' is not explicitly defined in 
the Clean Air Act, EPA believes a reasonable interpretation is to enact 
the compensating, equivalent emissions reductions within a maximum of 
one year (prior to or following) the cessation of the substituted 
control measure. The actual dates of occurrence of the start and end of 
substituted control measures, rather than the effective date of EPA 
action on a SIP revision, are used to ensure that the status quo level 
of emissions in the air is maintained. EPA acknowledges that Louisville 
inappropriately terminated the program before obtaining EPA approval of 
a SIP revision, however EPA does not believe this is relevant to 
determining the contemporaneousness of substitute reductions. Since the 
concept of contemporaneous reductions is to address ambient air quality 
levels, EPA believes it should be measured with respect to actual 
program implementation. Kosmos' March 2003 emissions reductions 
occurred well

[[Page 28433]]

within a year of the end of the actual termination of the VET Program, 
which occurred as of November 1, 2003. EPA agrees that the VET Program 
remains an enforceable component of the SIP, and will not become a 
contingency measure until the effective date of this final action. (See 
also Response 7 regarding legal consequences of terminating 
the VET Program without EPA approval.)
    Comment 7: Unless the EPA approves an amendment to the Kentucky SIP 
to remove the VET Program, the approved SIP, including the VET Program, 
must continue to be maintained and enforced as a matter of federal law. 
The commenter expresses that the illegal termination of the VET Program 
has gone without sanction by the EPA.
    Response 7: EPA exercises its discretion whether to issue a finding 
of failure to implement the SIP for the discontinuation of the VET 
Program. EPA recognized that the LMAPCD was actively working with the 
Agency to develop an approvable SIP revision to provide compensating 
emissions reductions as expeditiously as possible. EPA also notes that 
in a Memorandum Opinion dated January 29, 2004, the U.S. District Court 
concluded that the District violated the Clean Air Act by terminating 
the VET Program, an approved element of the Kentucky SIP, without EPA's 
prior approval. (Memorandum Opinion, P.20, Case Number 3:03CV-712-H) In 
a court order issued June 10, 2004, the Court ordered the LMAPCD, the 
agency responsible for implementation of the Jefferson County, Kentucky 
portion of the state SIP, to pay a fine of $100,000 in connection with 
this termination of the program. The Court subsequently distributed 
these funds to the Kentucky Resources Council for use in the Council's 
environmental projects as specified by the Court. The Court did not 
order the District to restart the VET Program due to the status of the 
pending SIP revision at that time and the likely timing and potential 
substance of an EPA response. (Memorandum and Order, Case Number 
3:03CV-712-H, June 10, 2004) Upon the effective date of this final 
action, the issue of not implementing and enforcing a control measure 
in the SIP is resolved.
    Comment 8: The commenter writes that the Kosmos reductions are not 
enforceable and equivalent to the lost VET Program reductions, because 
the new Kosmos proposed limits are a rolling 30-day average rather than 
a maximum instantaneous cap. The commenter notes there may be times 
(including days where ozone levels are otherwise elevated) in which the 
emissions will exceed the proposed average and will not offset what 
would have been captured on a continuous basis by the operation of the 
VET Program. The commenter also expressed that the modifications 
resulting in NOX reductions were undertaken to avoid 
NOX spikes that were in excess of permit limits and that as 
such, those reductions would not appear to be surplus since they were 
undertaken to achieve compliance with permit requirements that would 
have occurred regardless of the termination of the VET Program.
    Response 8: The May 3, 2004, amended Board Order for the Kosmos 
cement kiln requires that NOX emissions (expressed as NO2) 
from the cement kiln shall not exceed 4.755 pptcp by the kiln, based 
upon a rolling 30-day average. In this final action, EPA is approving 
the proposed revisions in the May 3, 2004, Board Order, including this 
lowered NOX emission rate, into the Kentucky SIP. To comply 
with this lower emission rate and the SIP, the average of daily 
NOX emissions from Kosmos' cement kiln over 30 consecutive 
days must be below the rate approved into the SIP. Any daily 
fluctuations above the emission rate are compliant with the SIP as long 
as this 30-day rolling average condition is met. For this reason, the 
emissions reductions, as reflected in the lowered NOX 
emission rate for Kosmos, are surplus and are not a violation of SIP 
requirements.
    Through this final action, the 30-day rolling average condition for 
Kosmos becomes federally enforceable. Kosmos is required to maintain 
and operate a continuous emission monitoring system (CEMS) to measure 
daily NOX emissions into the atmosphere from the cement kiln 
(Appendix A of Kosmos' NOX Reasonably Available Control 
Technology (RACT) Plan). This requirement to record and submit CEMS 
data allows for monitoring of the lowered NOX emission rate 
at Kosmos on a daily basis which will assure compliance with the new 
limit on a 30 day basis. The VET Program was designed with the 
presumption that the vehicle would maintain compliance for the year.
    Regarding concerns expressed on high ozone days, an emission rate 
based upon a rolling 30-day average is set to accommodate normal 
fluctuations in operating conditions while remaining protective of 
public health. EPA notes that other programs use a 30-day rolling 
average and have been effective in controlling emissions, including 
NOX RACT (see page 55625 of 57 FR 55620, November 25, 1992) 
and New Source Performance Standards for boilers (see page 49444 of 63 
FR 49442, September 16, 1998). Furthermore, EPA believes even longer 
term compliance averaging periods have demonstrated their 
effectiveness, e.g., EPA's NOX SIP Call trading program's 
ozone season averaging time period (``NOX Budget Trading 
Program,'' August 2004, EPA-430-R-04-010). Should the rolling 30-day 
average NOX emission rate ever exceed the established 
NOX emissions standard, Section II.A.4. of Appendix A of 
Kosmos' NOX RACT Plan contains specific reporting and 
recordkeeping requirements for Kosmos to submit excess emissions 
reports that document the amount, dates, and timeframes of the excess 
emissions and corrective actions taken or preventive measures adopted.
    Comment 9: The commenter writes that the emissions reductions at 
Kosmos from the installation of controls preclude emission at levels 
contained in the former permit even under full operating conditions, 
and that the elimination of the increment of allowable emissions from 
the former permit limits to the actual potential emissions is a 
``phantom paper reduction'' rather than a real emissions reduction.
    Response 9: EPA first clarifies that Kosmos made changes to its 
operating procedures, not installed controls, to achieve the equivalent 
emissions reductions achieved in March 2003. As described in LMAPCD's 
Comment and Response Document on page 5, by requiring all kiln 
operators to operate the kiln in the same manner, the cement kiln ran 
more efficiently and thus used less fuel and emitted less pollutants. 
The resulting NOX emissions reductions at Kosmos were 
verified using CEMS, which is a monitoring system for continuously 
measuring and recording the emissions of a pollutant. The Agency's 
evaluation of the SIP submittal supports that Kosmos will have achieved 
the predicted 8,672 pounds per summer day (ppsd) of NOX 
emissions reductions in 2004. It is EPA's practice to approve control 
measures into the SIP using projected emissions reduction data as long 
as the baseline data and emission projection methodology are based on 
sound science. In the proposed approval, EPA's analysis is based on the 
change in the allowable emission rate (6.6 to 4.755 pptcp 
NOX) at a constant production rate (4700 tons of clinker/
day). The procedure EPA used in the proposal assumes: (1) Kosmos 
emitted at its maximum allowable rate of 6.6 pptcp NOX, on 
average in 2002, under the previous Board Order approved into the 
Kentucky SIP and (2) Kosmos will emit no more than 4.755 pptcp 
NOX, on

[[Page 28434]]

average, under the new Board Order dated May 3, 2004 (see 70 FR 58, 
January 3, 2005). Kosmos was emitting at 2.1-4.1 pptcp NOX 
in 2003 under the 6.6 limit due to the operational changes made in 
March 2003. To prevent Kosmos from changing the cement kiln's operation 
and increasing emissions in 2004 or later up to 6.6, a revised Board 
Order with the lower emission rate of 4.755 pptcp NOX was 
adopted by the Board on May 3, 2004, and will become part of the 
federally enforceable Kentucky SIP as of the effective date of this 
final action. Kosmos' cement kiln cannot emit up to 6.6 pptcp 
NOX without violating the new SIP limit for Kosmos of 4.755 
pptcp NOX, and therefore, the proposed calculation procedure 
remains valid.
    Comment 10: The commenter expressed that eliminating the VET 
Program may increase cost of a program restart should the area's 
control strategy be required to use an I/M program if Louisville is 
classified as a moderate 8-hour ozone nonattainment area.
    Response 10: EPA acknowledges that there would be additional costs 
to restart the VET Program since it has been terminated. The Louisville 
area is designated nonattainment under subpart 1, ``Nonattainment Areas 
in General,'' of Title I Part D of the Clean Air Act for the 8-hour 
ozone NAAQS. An I/M program is not required for these subpart 1 
nonattainment areas. The statutory authority to implement an I/M 
program remains intact in Kentucky Revised Statute (KRS) 77.320, 
``Elimination of vehicle emissions testing program in county containing 
consolidated local government--Determination of need for program,'' and 
in KRS 77.180, ``Orders, rules and regulations.'' KRS 77.180 is the 
cited statute in the VET Program regulations now located in the 
contingency portion of the Louisville 1-Hour Ozone Maintenance Plan as 
of the effective date of this action. Thus, should the area become 
classified moderate and need to implement I/M, it would already have 
the statutory authority to do so. (To access KRS 77.320 and KRS 77.180 
within Chapter 77, ``Air Pollution Control,'' access the following Web 
site: http://lrc.ky.gov/KRS/077-00/CHAPTER.HTM.)
    Comment 11: The commenter states that the law that repealed the VET 
Program, KRS 77.320, should be repealed. The commenter suggests that 
the VET Program was the only effective means of air management in the 
metropolitan area and should be reinstated.
    Response 11: The LMAPCD adopted several regulatory programs that 
helped the area to attain the 1-hour ozone NAAQS. The Louisville area 
has had no 1-hour ozone NAAQS exceedances since the area was 
redesignated to attainment in a final action published October 23, 2001 
(66 FR 53665). Louisville was able to demonstrate continued maintenance 
of the 1-hour ozone NAAQS without the I/M program. In addition, the 
provision of substitute reductions from the Kosmos cement kiln will 
prevent increases in ambient air levels pending development of 8-hour 
and PM2.5 attainment demonstrations. The 8-hour ozone and 
PM2.5 control strategy SIP revisions for the area due in 
2007 and 2008, respectively, will identify control strategies to help 
the area meet these NAAQS as expeditiously as practicable. These SIP 
revisions will include a demonstration that the selected control 
measures will timely achieve the relevant NAAQS.
    Comment 12: The commenter states that in addition to businesses, 
each individual who drives should be responsible for cleaner, healthier 
air. The commenter suggests that the VET Program could be required only 
every other year and exclude cars less than five years old to reduce 
the burden.
    Response 12: Under Jefferson County's present 8-hour ozone and 
PM2.5 nonattainment classifications, and 1-hour ozone 
maintenance status, Kentucky has discretion which control measures to 
apply to help the County attain and maintain these NAAQS. So long as 
the area meets all applicable CAA requirements, EPA cannot dictate that 
each individual residing in the area must personally contribute to 
required emissions reductions.
    Comment 13: Mobile source emissions comprise a significant 
component of the emissions profile for the county, and the VET program 
has been responsible for moderating the effects of the increase in 
vehicle miles traveled in this region, and in reducing the contribution 
of ozone precursors from the mobile sector. For this reason, the 
proposed repeal of the VET Program is troubling.
    Response 13: The Kentucky portion of the Louisville 1-Hour Ozone 
Maintenance Plan provides emissions data and emissions projections 
covering the year 2005 for this maintenance area. The Kentucky portion 
of the Louisville 1-Hour Ozone Maintenance Area is comprised of 
Jefferson County, and portions of Bullitt and Oldham Counties in 
Kentucky. EPA acknowledges that projected 2005 emissions from mobile 
sources contribute almost one-third of the VOC emissions and nearly 
one-half of the NOX emissions in the Kentucky portion of the 
Louisville area. The equivalent emissions reductions from Kosmos that 
are replacing those previously gained from the VET Program, in addition 
to meeting all other applicable requirements for the area, help to 
ensure that the current air quality is maintained. The 8-hour ozone and 
PM2.5 attainment demonstrations due in 2007 and 2008, 
respectively, will address, as appropriate, any needed mobile source 
controls for the designated nonattainment areas under these standards. 
See also Response 1.
    Comment 14: When will the public review and formal comment period 
begin on the January 3, 2005, proposed rule (70 FR 53)?
    Response 14: The public comment period on the proposed rulemaking 
was from January 3, 2005 to February 2, 2005, as stated in the proposed 
rulemaking published January 3, 2005, at 70 FR 53.
    Comment 15: The commenter notes that the problems that come with 
global warming and pollution are not going to go away anytime soon, and 
that these issues will only get worse until action is taken.
    Response 15: This comment is not relevant nor specific to issues 
contained in the January 3, 2005, proposed rule (70 FR 53).
    Comment 16: The commenter notes that the United States of America 
needs to do much more to clean up the air and atmosphere to protect the 
ozone layer from getting worse. The commenter also states that the 
country's per capita output of air pollutants and many other 
environmentally damaging pollutants is ``shamefully high.''
    Response 16: This comment is not relevant nor specific to issues 
contained in the January 3, 2005, proposed rule (70 FR 53).
    Comment 17: The commenter states that with respect to Louisville 
Gas & Electric (LG&E), it is inappropriate to claim credit for 
reductions achieved by the company as a result of its compliance 
strategy with the NOX SIP call, since those reductions were 
made in response to existing legal obligation and would have been 
achieved irrespective of any District action to execute an 
``Agreement.'' The commenter also notes that substituting LG&E 
emissions of NOX for lost VOC and NOX emissions 
from motor vehicles is not equivalent because LG&E has presented 
modeling in the past demonstrating that NOX emissions from 
the LG&E stacks did not contribute appreciably to the local ozone 
problem in the Louisville area.
    Response 17: The comments received regarding emissions reductions 
from LG&E are not relevant nor specific to

[[Page 28435]]

issues contained in the January 3, 2005, proposed rule (70 FR 53).

IV. Final Action

    EPA is approving a revision to the Jefferson County, Kentucky 
portion of the Kentucky SIP which moves Regulations 8.01, 8.02, and 
8.03 from the regulatory portion of the Jefferson County part of the 
Kentucky SIP to the contingency measures section of the Kentucky 
portion of the Louisville 1-Hour Ozone Maintenance Plan. EPA is also 
approving a source-specific SIP revision amending the NOX 
emission rate for Kosmos Cement Company's cement kiln.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 18, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: May 11, 2005.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.

0
Part 52 of chapter I, title 40, Code of Federal Regulations, is amended 
as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart S--Kentucky

0
2. Section 52.920 is amended as follows:
0
a. in paragraph (c) by removing from Table 2, Regulation 8.01 titled, 
``Mobile Source Emissions Control Requirements,'' Regulation 8.02 
titled, ``Vehicle Emissions Testing Procedure,'' and Regulation 8.03 
titled, ``Commuter Vehicle Testing Requirements,''
0
b. in paragraph (d) by revising the entry for ``Board Order Kosmos 
Cement Company,'' and
0
c. in paragraph (e) by revising the entry for ``Louisville 1-hour Ozone 
Maintenance Plan'' to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (d) * * *

[[Page 28436]]



                                                   EPA-Approved Kentucky Source--Specific Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        State  effective
           Name of source                             Permit number                           date           EPA  approval date         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Board Order Kosmos Cement Company..  NOX RACT Plan 05/03/04.........................  05/03/04              05/18/05 [Insert      ......................
                                                                                                             first page number
                                                                                                             of publication]
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (e) * * *

                                                     EPA-Approved Kentucky Non-regulatory Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        State  submittal
 Name of regulatory SIP  provision     Applicable geographic or nonattainment area     date/effective date   EPA  approval date         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Louisville 1-Hour Ozone Maintenance  Jefferson County and portions of Bullitt and     11/1/03               05/18/05 [Insert      ......................
 Plan.                                Oldham Counties.                                                       first page number
                                                                                                             of publication]
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 05-9905 Filed 5-17-05; 8:45 am]
BILLING CODE 6560-50-P