[Federal Register Volume 72, Number 91 (Friday, May 11, 2007)]
[Proposed Rules]
[Pages 26759-26770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9130]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2006-0362-200702; FRL-8312-6]


Approval and Promulgation of Implementation Plans and 
Designations of Areas for Air Quality Planning Purposes; Kentucky: 
Redesignation of the Boyd County, Kentucky Portion of the Huntington-
Ashland 8-Hour Ozone Nonattainment Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On September 29, 2006, the Commonwealth of Kentucky 
(Kentucky), through the Kentucky Division for Air Quality (KDAQ), 
submitted a request to redesignate the Kentucky portion of the bi-state 
Huntington-Ashland 8-hour ozone nonattainment area to attainment for 
the 8-hour National Ambient Air Quality Standard (NAAQS); and to 
approve a State Implementation Plan (SIP) revision containing a 
maintenance plan for the Kentucky portion of the bi-state Huntington-
Ashland area. The bi-state Huntington-Ashland 8-hour ozone 
nonattainment area is comprised of one county in Kentucky (Boyd County) 
and two counties in West Virginia (Cabell and Wayne counties). In this 
action, EPA is proposing to approve Kentucky's 8-hour ozone 
redesignation request for Boyd County, which is the Kentucky portion of 
the bi-state Huntington-Ashland 8-hour ozone nonattainment area. 
Additionally, EPA is proposing to approve the 8-hour ozone maintenance 
plan for Boyd County, Kentucky, including the state motor vehicle 
emission budgets (MVEBs) for nitrogen oxides (NOX) and 
volatile organic compounds (VOCs). This proposed approval of Kentucky's 
redesignation request is based on EPA's determination that Kentucky has 
demonstrated that Boyd County, Kentucky has met the criteria for 
redesignation to attainment specified in the Clean Air Act (CAA), 
including the determination that the entire (both the Kentucky and West 
Virginia portions) Huntington-Ashland 8-hour ozone nonattainment area 
has attained the 8-hour ozone standard. On May 17, 2006, the State of 
West Virginia submitted a redesignation request and maintenance plan 
for the West Virginia portion (Cabell and Wayne counties) of this 8-
hour ozone area. EPA has taken action on West Virginia's redesignation 
request and maintenance plan through a separate action. The final 
rulemaking approving the West Virginia submittal was published in the 
Federal Register on September 15, 2006. In this action, EPA is also 
providing the status of its transportation conformity adequacy 
determination for the new MVEBs for 2018 that are contained in the 8-
hour ozone maintenance plan for Boyd County, Kentucky. MVEBs for Cabell 
and Wayne counties in West Virginia are included in the West Virginia 
submittal.

DATES: Comments must be received on or before June 11, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2006-0362, by one of the following methods:
    (a) www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (b) E-mail: [email protected].
    (c) Fax: 404-562-9019.
    (d) Mail: EPA-R04-OAR-2006-0362 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.
    (e) Hand Delivery or Courier: Heidi LeSane, 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. Such deliveries are only 
accepted during the Regional Office's normal hours of operation. The 
Regional Office's official hours of business are Monday through Friday, 
8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2006-0362. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or e-
mail, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other

[[Page 26760]]

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 
www.regulations.gov 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 person 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: Heidi LeSane, 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. The telephone number is (404) 
562-9074. Mrs. LeSane can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Proposed Actions Is EPA Taking?
II. What Is the Background for EPA's Proposed Actions?
III. What Are the Criteria for Redesignation?
IV. Why Is EPA Proposing These Actions?
V. What Is the Effect of EPA's Proposed Actions?
VI. What Is EPA's Analysis of the Request?
VII. What Are the Proposed State MVEBs for Boyd County, Kentucky?
VIII. What Is the Status of EPA's Adequacy Determination for the 
MVEBs for Boyd County, Kentucky?
IX. Proposed Action on the Redesignation Request and Maintenance 
Plan SIP Revision Including Proposed Approval of the 2018 MVEBs
X. Statutory and Executive Order Reviews

I. What Proposed Actions Is EPA Taking?

    EPA is proposing to take three related actions, which are 
summarized below and described in greater detail throughout the notice 
of proposed rulemaking: (1) To redesignate Boyd County, Kentucky to 
attainment for the 8-hour ozone NAAQS; (2) to approve Kentucky's 8-hour 
ozone maintenance plan, including the associated MVEBs; and (3) to 
notify the public of the status of EPA's adequacy determination for the 
Boyd County MVEBs.
    First, EPA is proposing to determine that the bi-state Huntington-
Ashland 8-hour ozone nonattainment area has attained the 8-hour ozone 
standard, and that the Boyd County, Kentucky portion has met the 
requirements for redesignation under section 107(d)(3)(E) of the CAA. 
The bi-state Huntington-Ashland 8-hour ozone area is comprised of one 
county in Kentucky (Boyd County) and two counties in West Virginia 
(Cabell and Wayne counties). Today's proposal addresses only the 
Kentucky portion of the bi-state Huntington-Ashland 8-hour ozone area. 
In a separate rulemaking, EPA approved the redesignation request and 
maintenance plan for the West Virginia portion of this 8-hour ozone 
area (see 71 FR 39618). EPA is now proposing to approve a request to 
change the legal designation of Boyd County, Kentucky from 
nonattainment to attainment for the 8-hour ozone NAAQS.
    Second, EPA is also proposing to approve Kentucky's 8-hour ozone 
maintenance plan for Boyd County, Kentucky (such approval being one of 
the CAA criteria for redesignation to attainment status). The 
maintenance plan is designed to help keep the Huntington-Ashland area 
(of which Boyd County is a part) in attainment for the 8-hour ozone 
NAAQS through 2018. Consistent with the CAA, the maintenance plan that 
EPA is proposing to approve today also includes 2018 state MVEBs for 
NOX and VOCs. Therefore, EPA is proposing to approve the 
2018 state MVEBs that are included as part of Kentucky's maintenance 
plan. These MVEBs apply only to Boyd County, Kentucky. MVEBs for Cabell 
and Wayne counties in West Virginia are included in the West Virginia 
submittal.
    Third, EPA is announcing the status of EPA's Adequacy Process for 
the newly-established 2018 MVEBs for Boyd County, Kentucky. Through a 
separate action, MVEBs for West Virginia portion of this 8-hour ozone 
area were established (see 71 FR 39618). The Adequacy comment period 
for the Boyd County, Kentucky 2018 MVEBs began on June 21, 2006, with 
EPA's posting of the availability of this submittal on EPA's Adequacy 
Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). The Adequacy comment period for these 2018 MVEBs closed 
on July 21, 2006. No requests for or adverse comments on this submittal 
were received during EPA's Adequacy comment period. Please see section 
VIII of this rulemaking for further explanation of this process, and 
for more details on the MVEBs.
    Today's notice of proposed rulemaking is in response to Kentucky's 
September 29, 2006, SIP submittal which supersedes Kentucky's June 7, 
2006, submittal that included a request for parallel processing. The 
September 29, 2006, submittal requested redesignation of Boyd County, 
Kentucky as part of the bi-state Huntington-Ashland Area, and included 
a SIP revision addressing the specific issues summarized above, and the 
necessary elements for redesignation described in section 107(d)(3)(E).

II. What Is the Background for EPA's Proposed Actions?

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of NOX and VOCs react in the presence of sunlight 
to form ground-level ozone. NOX and VOCs are referred to as 
precursors of ozone. The CAA establishes a process for air quality 
management through the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour ozone standard. Under EPA regulations at 40 
CFR part 50, the 8-hour ozone standard is attained when the 3-year 
average of the annual fourth highest daily maximum 8-hour average 
ambient air quality ozone concentrations is less than or equal to 0.08 
ppm (i.e., 0.084 ppm when rounding is considered). (See, 69 FR 23857 
(April 30, 2004) for further information.) Ambient air quality 
monitoring data for the 3-year period must meet a data completeness 
requirement. The ambient air quality monitoring data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90 percent, and no single year has less 
than 75 percent data completeness as determined in Appendix I of part 
50. Specifically, section 2.3 of 40 CFR part 50, Appendix I, 
``Comparisons with the Primary and Secondary Ozone Standards'' states:

    The primary and secondary ozone ambient air quality standards 
are met at an ambient air quality monitoring site when the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentration is less than or equal to 0.08 ppm. The number of 
significant figures in the level of the standard dictates the 
rounding convention for comparing the computed 3-year average annual 
fourth-highest daily maximum 8-hour average ozone concentration with 
the level of the standard. The third decimal place of the computed 
value is rounded, with values equal to or greater than 5 rounding 
up. Thus, a computed 3-year average ozone

[[Page 26761]]

concentration of 0.085 ppm is the smallest value that is greater 
than 0.08 ppm.

    The CAA required EPA to designate as nonattainment any area that 
was violating the 8-hour ozone NAAQS based on the three most recent 
years of ambient air quality data. The Huntington-Ashland 8-hour ozone 
nonattainment area was designated using 2001-2003 ambient air quality 
data. The Federal Register document making these designations was 
signed on April 15, 2004, and published on April 30, 2004 (69 FR 
23857). The CAA contains two sets of provisions--subpart 1 and subpart 
2--that address planning and control requirements for ozone 
nonattainment areas. (Both are found in title I, part D.) Subpart 1 
(which EPA refers to as ``basic'' nonattainment) contains general, less 
prescriptive, requirements for nonattainment areas for any pollutant--
including ozone--governed by a NAAQS. Subpart 2 (which EPA refers to as 
``classified'' nonattainment) provides more specific requirements for 
certain ozone nonattainment areas. Some 8-hour ozone nonattainment 
areas are subject only to the provisions of subpart 1. Other 8-hour 
ozone nonattainment areas are also subject to the provisions of subpart 
2. Under EPA's Phase 1 8-hour ozone implementation rule (69 FR 23857) 
(Phase 1 Rule), signed on April 15, 2004 and published on April 30, 
2004, an area was classified under subpart 2 based on its 8-hour ozone 
design value (i.e., the 3-year average of the annual fourth-highest 
daily maximum 8-hour average ozone concentrations), if it had a 1-hour 
design value at or above 0.121 ppm (the lowest 1-hour design value in 
Table 1 of subpart 2). All other areas are covered under subpart 1, 
based upon their 8-hour ambient air quality design values.
    Various aspects of EPA's Phase 1 8-hour ozone implementation rule 
were challenged in court and on December 22, 2006, the U.S. Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit Court) 
vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone 
Standard. South Coast Air Quality Management Dist. (SCAQMD) v. EPA, 472 
F.3d 882 (D.C. Cir. 2006). The D.C. Circuit Court held that certain 
provisions of EPA's Phase I Rule were inconsistent with the 
requirements of the CAA. The Court rejected EPA's reasons for 
implementing the 8-hour standard in nonattainment areas under subpart 1 
in lieu of subpart 2 of title I, part D of the CAA. The Court also held 
that EPA improperly failed to retain four measures required for 1-hour 
nonattainment areas under the anti-backsliding provisions of EPA's 
regulations: (1) Nonattainment area New Source Review (NSR) 
requirements based on an area's 1-hour nonattainment classification; 
(2) CAA section 185 penalty fees for 1-hour severe or extreme 
nonattainment areas; (3) measures to be implemented pursuant to section 
172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not 
making reasonable further progress toward attainment of the 1-hour 
NAAQS, or for failure to attain that NAAQS; and (4) certain conformity 
requirements for certain types of federal actions. The D.C. Circuit 
Court upheld EPA's authority to revoke the 1-hour standard provided 
that there were adequate anti-backsliding provisions in place.
    This section sets forth EPA's views on the potential effect of the 
Court's ruling on this redesignation action. For the reasons described 
throughout this notice of proposed rulemaking, EPA does not believe 
that the D.C. Circuit Court's ruling alters any requirements relevant 
to the redesignation of the Kentucky portion of the Huntington-Ashland 
Area (Boyd County) so as to preclude redesignation, and does not 
prevent EPA from proposing to finalize, or finalizing, the Boyd County, 
Kentucky redesignation. EPA believes that the Court's decision, as it 
currently stands or as it may be modified based upon the petitions for 
rehearing that have been filed, imposes no impediment to moving forward 
with redesignation of the Huntington-Ashland Area to attainment, 
because redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    The Huntington-Ashland Area was originally designated as moderate 
nonattainment for the 1-hour ozone standard on November 6, 1991 (56 FR 
56694). The Area was redesignated as attainment for the 1-hour ozone 
standard on June 29, 1995 (60 FR 33748). On April 30, 2004, EPA 
designated the Huntington-Ashland Area (of which Boyd County is a part) 
as a ``basic'' 8-hour ozone nonattainment area. (69 FR 23857)
    The D.C. Circuit Court's decision in 2006 also addressed the 8-hour 
ozone classification scheme. The Court rejected EPA's reasons for 
classifying areas under subpart 1 for the 8-hour standard, and remanded 
that matter to the Agency. Consequently, it is possible that the 
Huntington-Ashland Area could, as a result of the remand to EPA, be 
reclassified under subpart 2. Although any future decision by EPA to 
classify this area under subpart 2 might trigger additional future 
requirements for the area, this does not mean that redesignation cannot 
go forward now. EPA's position is based upon: (1) EPA's longstanding 
policy of evaluating requirements in accordance with the requirements 
due at the time that the request is submitted; and (2) consideration of 
the inequity of retroactively applying any requirements that might be 
applied in the future.
    In September 2006, when Kentucky submitted its final redesignation 
request, the Huntington-Ashland Area was classified under subpart 1of 
the CAA, and was obligated to meet only the subpart 1 requirements. 
Under EPA's longstanding interpretation of section 107(d)(3)(E) of the 
CAA, to qualify for redesignation, states requesting redesignation to 
attainment must meet only the relevant SIP requirements that came due 
prior to the submittal of a complete redesignation request. See, 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992; see also, Michael Shapiro 
Memorandum, ``SIP Requirements for Areas Submitting Requests for 
Redesignation to Attainment of the Ozone and Carbon Monoxide NAAQS On 
or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993; and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of 
Detroit-Ann Arbor). See, Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 
2004), which upheld this interpretation. See also, 68 FR 25418, 25424, 
25427 (May 12, 2003) (redesignation of St. Louis, Missouri).
    Moreover, it would be inequitable to retroactively apply any new 
SIP requirements that were not applicable at the time the request was 
submitted. The D.C. Circuit Court recognized the general inequity in 
retroactive rulemakings in Sierra Club v. Whitman, 285 F. 3d 63 (D.C. 
Cir. 2002), in which the D.C. Circuit Court upheld a district court's 
refusal to make retroactive an EPA determination of nonattainment that 
was past the statutory due date. Such a determination would have 
resulted in the imposition of additional requirements on the area. In 
Sierra Club, the D.C. Circuit Court stated, ``[a]lthough EPA failed to 
make the nonattainment determination within the statutory time frame, 
Sierra Club's proposed solution only makes the situation worse. 
Retroactive relief would likely impose large costs on the states, which 
would face fines and suits for not

[[Page 26762]]

implementing air pollution prevention plans in 1997, even though they 
were not on notice at the time.'' Id. at 68. Similarly, with regard to 
Kentucky's redesignation request, it would be unfair to penalize 
Kentucky by retroactively applying to it for purposes of redesignation, 
additional SIP requirements under subpart 2 that were not in effect at 
the time it submitted its redesignation request, and that are not 
currently in effect, but that might be in effect as a result of the 
D.C. Circuit Court's remand.
    With respect to the requirements under the 1-hour standard ozone 
standard, Boyd County, Kentucky was originally designated as moderate 
nonattainment for the 1-hour ozone standard in November 6, 1991 (56 FR 
56694). The Area was redesignated as attainment for the 1-hour ozone 
standard on June 29, 1995 (60 FR 33748). Therefore, Boyd County, 
Kentucky was designated to attainment of the 1-hour ozone standard 
prior to its nonattainment designation for the 8-hour ozone standard. 
As a result, it is considered to be a 1-hour attainment area subject to 
a CAA section 175A maintenance plan for the 1-hour standard. The D.C. 
Circuit Court's ruling does not impact redesignation requests for these 
types of areas for two main reasons.
    First, there are no conformity requirements relevant for the 
Huntington-Ashland redesignation request, such as a transportation 
conformity SIP.\1\ It is EPA's longstanding policy position that it is 
reasonable to interpret the conformity SIP requirements as not applying 
for purposes of evaluating a redesignation request under section 107(d) 
because state conformity rules are still required after redesignation, 
and federal conformity rules apply where state rules have not been 
approved. See, 40 CFR 51.390; see also, Wall v. EPA, 265 F.3d 426 (6th 
Cir. 2001) (upholding EPA's interpretation). See also, 60 FR 62748 
(Dec. 7, 1995) (redesignation of Tampa, Florida).
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    \1\ CAA section 176(c)(4)(E) requires states to submit revisions 
to their SIPs to reflect certain federal criteria and procedures for 
determining transportation conformity. Transportation conformity 
SIPs are different from the motor vehicle emissions budgets that are 
established in control strategy SIPs and maintenance plans.
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    Second, with regard to the three other anti-backsliding provisions 
for the 1-hour standard that the D.C. Circuit Court found were not 
properly retained, Boyd County, Kentucky is an attainment area subject 
to a maintenance plan for the 1-hour standard, and the NSR, contingency 
measure (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision 
requirements no longer apply to this area because it was redesignated 
to attainment of the 1-hour standard. As a result, the decision in 
SCAQMD should not alter any requirements that would preclude EPA from 
finalizing the Boyd County portion of the Huntington-Ashland area to 
attainment for the 8-hour ozone standard.
    As noted earlier, in 2005, the ambient ozone data for the 
Huntington-Ashland nonattainment area indicated no further violations 
of the 8-hour ozone standard, using data from the 3-year period of 
2003-2005 (with a 2003-2005 design value of 0.079 ppm), to demonstrate 
attainment. As a result, on September 29, 2006, Kentucky requested 
redesignation of Boyd County, Kentucky to attainment for the 8-hour 
ozone NAAQS. The redesignation request includes three years of 
complete, quality-assured ambient air quality data for the ozone 
seasons (March 1st until October 31st) of 2003-2005, indicating that 
the 8-hour ozone NAAQS has been achieved for the entire Huntington-
Ashland area. Under the CAA, nonattainment areas may be redesignated to 
attainment if sufficient, complete, quality-assured data is available 
for the Administrator to determine that the area has attained the 
standard and the area meets the other CAA redesignation requirements in 
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
allows for redesignation providing that: (1) The Administrator 
determines that the area has attained the applicable NAAQS; (2) the 
Administrator has fully approved the applicable implementation plan for 
the area under section 110(k); (3) the Administrator determines that 
the improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from implementation of the applicable 
SIP and applicable Federal air pollutant control regulations and other 
permanent and enforceable reductions; (4) the Administrator has fully 
approved a maintenance plan for the area as meeting the requirements of 
section 175A; and, (5) the state containing such area has met all 
requirements applicable to the area under section 110 and part D of the 
CAA.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:

    1. ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, Director, Technical Support Division, 
June 18, 1990;
    2. ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
    3. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
    4. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (hereafter referred to as the 
``Calcagni Memorandum'');
    5. ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air Act Deadlines,'' Memorandum from John 
Calcagni, Director, Air Quality Management Division, October 28, 
1992;
    6. ``Technical Support Documents (TSDs) for Redesignation of 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum 
from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, 
August 17, 1993;
    7. `` State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) 
On or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
    8. ``Use of Actual Emissions in Maintenance Demonstrations for 
Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993;
    9. ``Part D New Source Review (Part D NSR) Requirements for 
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary 
D. Nichols, Assistant Administrator for Air and Radiation, October 
14, 1994; and
    10. ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995.

IV. Why Is EPA Proposing These Actions?

    On September 29, 2006, Kentucky requested redesignation of the 
Kentucky portion (Boyd County) of the bi-state Huntington-Ashland 8-
hour ozone nonattainment area to attainment for the 8-hour ozone 
standard. EPA's evaluation indicates that Kentucky has

[[Page 26763]]

demonstrated that Boyd County, Kentucky (as part of the Huntington-
Ashland area) has attained the standard and has met the requirements 
for redesignation set forth in section 107(d)(3)(E) of the CAA. EPA is 
also announcing the status of its adequacy determination for the 2018 
state MVEBs, which is relevant to the requested redesignation.

V. What Is the Effect of EPA's Proposed Actions?

    EPA's proposed actions establish the basis upon which EPA may take 
final action on these issues being proposed for approval today. 
Approval of Kentucky's redesignation request would change the official 
designation of Boyd County, Kentucky for the 8-hour ozone NAAQS found 
at 40 CFR part 81. Approval of Kentucky's request would also 
incorporate into the Kentucky SIP, a plan for maintaining the 8-hour 
ozone NAAQS in the Huntington-Ashland Area through 2018. The 
maintenance plan includes contingency measures to remedy future 
violations of the 8-hour ozone NAAQS. The maintenance plan also 
establishes state MVEBs of 1.18 tons per day (tpd) for VOC and 1.30 tpd 
for NOX for the year 2018 for Boyd County, Kentucky. 
Approval of Kentucky's maintenance plan would also result in approval 
of the state MVEBs. Additionally, EPA is announcing the status of its 
adequacy determination for the 2018 state MVEBs pursuant to 40 CFR 
93.118(f)(1).

VI. What Is EPA's Analysis of the Request?

    EPA is proposing to make the determination that the Boyd County 
portion of the Huntington-Ashland 8-hour ozone nonattainment area has 
attained the 8-hour ozone standard, and that all other redesignation 
criteria have been met for that portion of the Huntington-Ashland 8-
hour ozone area. EPA has made this determination with regard to West 
Virginia meeting the other redesignation criteria through a separate 
rulemaking (see 71 FR 39618). Therefore, the entire Huntington-Ashland 
area has air quality monitoring data showing attainment of the 8-hour 
ozone NAAQS. The basis for EPA's determination for the Boyd County area 
is discussed in greater detail below.

Criteria (1)--Boyd County Has Attained the 8-Hour Ozone NAAQS

    EPA is proposing to determine that the Boyd County portion of the 
Huntington-Ashland area has attained the 8-hour ozone NAAQS. For ozone, 
an area may be considered to be attaining the 8-hour ozone NAAQS if 
there are no violations, as determined in accordance with 40 CFR 50.10 
and Appendix I of part 50, based on three complete, consecutive 
calendar years of quality-assured air quality monitoring data. To 
attain this standard, the 3-year average of the fourth-highest daily 
maximum 8-hour average ozone concentrations measured at each monitor 
within an area over each year must not exceed 0.08 ppm. Based on the 
rounding convention described in 40 CFR part 50, Appendix I, the 
standard is attained if the design value is 0.084 ppm or below. The 
data must be collected and quality-assured in accordance with 40 CFR 
part 58, and recorded in the EPA Air Quality System (AQS). The monitors 
generally should have remained at the same location for the duration of 
the monitoring period required for demonstrating attainment.
    EPA reviewed ozone monitoring data from ambient ozone monitoring 
stations in the Huntington-Ashland area for the ozone season from 2003-
2005. This data has been quality assured and is recorded in AQS. The 
fourth high averages for 2003, 2004 and 2005, and the 3-year average of 
these values (i.e., design value), are summarized in the following 
table:

   Table 1.--Annual 4th Max High and Design Value for 8-Hour Ozone for
                         Huntington-Ashland Area
                        [Parts per million, ppm]
------------------------------------------------------------------------
                                        Huntington       Ashland  (Boyd
               Year                  (Cabell County)        County)
------------------------------------------------------------------------
2003..............................              0.080              0.088
2004..............................              0.066              0.068
2005..............................              0.082              0.082
Design Value......................              0.076              0.079
------------------------------------------------------------------------

    As discussed above, the design value for an area is the highest 
design value recorded at any monitor in the area. Therefore, the design 
value for the Huntington-Ashland area is 0.079 ppm, which meets the 
standard as described above. Additionally, preliminary air quality data 
from the 2006 monitoring season indicates that the Huntington-Ashland 
Area is continuing to attain the 8-hour ozone standard. As discussed in 
more detail below, KDAQ has committed to continue monitoring in this 
area in accordance with 40 CFR part 58. The data submitted by Kentucky 
provides an adequate demonstration that Boyd County (as a part of the 
Huntington-Ashland area) has attained the 8-hour ozone NAAQS.

Criteria (2)--Kentucky Has a Fully Approved SIP Under Section 110(k) 
for Boyd County and Criteria (5)--Kentucky Has Met All Applicable 
Requirements Under Section 110 and Part D of the CAA

    Below is a summary of how these two criteria were met.
    EPA has determined that Kentucky has met all applicable SIP 
requirements for the Boyd County under section 110 of the CAA (general 
SIP requirements). EPA has also determined that the Kentucky SIP 
satisfies the criterion that it meets applicable SIP requirements under 
part D of title I of the CAA (requirements specific to subpart 1 basic 
8-hour ozone nonattainment areas) in accordance with section 
107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully 
approved with respect to all applicable requirements in accordance with 
section 107(d)(3)(E)(ii). In making these determinations, EPA 
ascertained which requirements are applicable to the area and that if 
applicable, they are fully approved under section 110(k). SIPs must be 
fully approved only with respect to applicable requirements.
a. Boyd County, Kentucky Has Met All Applicable Requirements Under 
Section 110 and Part D of the CAA
    The September 4, 1992, Calcagni Memorandum (see ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E). Consistent with this interpretation, to qualify for 
redesignation, states

[[Page 26764]]

requesting redesignation to attainment must meet only the relevant CAA 
requirements that come due prior to the submittal of a complete 
redesignation request. See also, Michael Shapiro Memorandum (``SIP 
Requirements for Areas Submitting Requests for Redesignation to 
Attainment of the Ozone and Carbon Monoxide NAAQS On or After November 
15, 1992,'' September 17, 1993), and 60 FR 12459, 12465-66 (March 7, 
1995) (redesignation of Detroit-Ann Arbor, Michigan). Applicable 
requirements of the CAA that come due subsequent to the area's 
submittal of a complete redesignation request remain applicable until a 
redesignation is approved, but are not required as a prerequisite to 
redesignation. See, section 175A(c) of the CAA; Sierra Club, 375 F.3d 
537 (7th Cir. 2004); see also, 68 FR 25424, 25427 (May 12, 2003) 
(redesignation of St. Louis, Missouri).
    General SIP requirements: Section 110(a)(2) of title I of the CAA 
delineates the general requirements for a SIP, which include 
enforceable emissions limitations and other control measures, means, or 
techniques, provisions for the establishment and operation of 
appropriate devices necessary to collect data on ambient air quality, 
and programs to enforce the limitations. General SIP elements and 
requirements are delineated in section 110(a)(2) of title I, part A of 
the CAA. These requirements include, but are not limited to, the 
following: submittal of a SIP that has been adopted by the state after 
reasonable public notice and hearing; provisions for establishment and 
operation of appropriate procedures needed to monitor ambient air 
quality; implementation of a source permit program; provisions for the 
implementation of part C requirements (Prevention of Significant 
Deterioration (PSD)) and provisions for the implementation of part D 
requirements (New Source Review (NSR) permit programs); provisions for 
air pollution modeling; and provisions for public and local agency 
participation in planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a state from significantly contributing to air 
quality problems in another state. To implement this provision, EPA has 
required certain states to establish programs to address the transport 
of air pollutants (NOX SIP Call, Clean Air Interstate Rule 
(CAIR)). EPA has also found, generally, that states have not submitted 
SIPs under section 110(a)(1) to meet the interstate transport 
requirements of section 110(a)(2)(D)(i). However, the section 
110(a)(2)(D) requirements for a state are not linked with a particular 
nonattainment area's designation and classification in that state. EPA 
believes that the requirements linked with a particular nonattainment 
area's designation and classifications are the relevant measures to 
evaluate in reviewing a redesignation request. The transport SIP 
submittal requirements, where applicable, continue to apply to a state 
regardless of the designation of any one particular area in the state. 
Thus, we do not believe that the CAA's interstate transport 
requirements should be construed to be applicable requirements for 
purposes of redesignation.
    In addition, EPA believes that the other section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The area will still be subject to these requirements 
after the area is redesignated. The section 110 and part D 
requirements, which are linked with a particular area's designation and 
classification, are the relevant measures to evaluate in reviewing a 
redesignation request. This approach is consistent with EPA's existing 
policy on applicability (i.e., for redesignations) of conformity and 
oxygenated fuels requirements, as well as with section 184 ozone 
transport requirements. See, Reading, Pennsylvania, proposed and final 
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 
1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, 
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, 
December 7, 1995). See also, the discussion on this issue in the 
Cincinnati, Ohio redesignation (65 FR 37890, June 19, 2000), and in the 
Pittsburgh, Pennsylvania redesignation (66 FR 50399, October 19, 2001).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Any section 110 requirements that are linked to the part D requirements 
for 8-hour ozone nonattainment areas are not yet due, since, as 
explained below, no part D requirements for 8-hour standard became due 
prior to submission of the redesignation request. Therefore, as 
discussed above, for purposes of redesignation, they are both 
considered applicable requirements. Nonetheless, EPA notes that it has 
previously approved provisions into the Kentucky SIP addressing section 
110 elements (See 47 FR 30059, July 12, 1982). EPA believes that the 
section 110 SIP approved for the 1-hour ozone NAAQS is also sufficient 
to meet the requirements under the 8-hour ozone NAAQS (as well as 
satisfying the issue raised by the D.C. Circuit Court in the SCAQMD 
case).
    Part D requirements: EPA has also determined that the Kentucky SIP 
meets applicable SIP requirements under part D of the CAA since no 
requirements became due prior to the submission of the area's 
redesignation request. Sections 172-176 of the CAA, found in subpart 1 
of part D, set forth the basic nonattainment requirements applicable to 
all nonattainment areas. Section 182 of the CAA, found in subpart 2 of 
part D, establishes additional specific requirements depending on the 
area's nonattainment classification. Subpart 2 is not applicable to the 
Boyd County, Kentucky area.
    Part D, subpart 1 applicable SIP requirements: For purposes of 
evaluating this redesignation request, the applicable part D, subpart 1 
SIP requirements for all nonattainment areas are contained in sections 
172(c)(1)-(9). A thorough discussion of the requirements contained in 
section 172 can be found in the General Preamble for Implementation of 
Title I (57 FR 13498). No requirements applicable for purposes of 
redesignation under part D became due prior to the submission of the 
redesignation request, and therefore none are applicable to the area 
for purposes of redesignation. For example, the requirements for an 
attainment demonstration that meets the requirements of section 
172(c)(1) are not yet applicable, nor are the requirements for 
Reasonably Achievable Control Technology (RACT) and Reasonably 
Available Control Measures (RACM) (section 172(c)(1)), reasonable 
further progress (RFP) (section 172(c)(2)), and contingency measures 
(section 172(c)(9)).
    In addition to the fact that no part D requirements applicable for 
purposes of redesignation became due prior to submission of the 
redesignation request and therefore are not applicable, EPA believes it 
is reasonable to interpret the conformity and NSR requirements as not 
requiring approval prior to redesignation.
    Section 176 Conformity Requirements: Section 176(c) of the CAA 
requires states to establish criteria and procedures to ensure that 
Federally supported or funded projects conform to the air quality 
planning goals in the applicable SIP. The requirement to determine 
conformity applies to transportation plans, programs and projects 
developed, funded or approved

[[Page 26765]]

under title 23 of the United States Code (U.S.C.) and the Federal 
Transit Act (``transportation conformity'') as well as to all other 
Federally supported or funded projects (``general conformity''). State 
conformity revisions must be consistent with Federal conformity 
regulations relating to consultation, enforcement and enforceability 
that the CAA required the EPA to promulgate.
    EPA believes it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) because state conformity 
rules are still required after redesignation and Federal conformity 
rules apply where state rules have not been approved. See, Wall, 265 
F.3d 426 (6th Cir. 2001), upholding this interpretation. See also, 60 
FR 62748 (Dec. 7, 1995, Tampa, Florida).
    EPA has also determined that areas being redesignated need not 
comply with the requirement that a NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
standard without a part D NSR program in effect since PSD requirements 
will apply after redesignation. The rationale for this view is 
described in a memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation, dated October 14, 1994, entitled ``Part D New 
Source Review (Part D NSR) Requirements for Areas Requesting 
Redesignation to Attainment.'' Kentucky has demonstrated that the area 
will be able to maintain the standard without a part D NSR program in 
effect, and therefore, Kentucky need not have a fully approved part D 
NSR program prior to approval of the redesignation request. EPA most 
recently approved Kentucky's NSR program (including a nonattainment NSR 
and PSD program) in the Kentucky SIP on July 11, 2006 (71 FR 38990). 
Kentucky's PSD program will become effective in Boyd County, Kentucky 
upon redesignation to attainment. See, rulemakings for Detroit, 
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorraine, 
Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR 
53665, October 23, 2001); Grand Rapids, Michigan (61 FR 31834-31837, 
June 21, 1996). Thus, Boyd County, Kentucky has satisfied all 
applicable requirements for purposes of redesignation under section 110 
and part D of the CAA.
b. The Area Has a Fully Approved Applicable SIP Under Section 110(k) of 
the CAA
    EPA has fully approved the applicable Kentucky SIP for Boyd County 
under section 110(k) of the CAA for all requirements applicable for 
purposes of redesignation. EPA may rely on prior SIP approvals in 
approving a redesignation request, see Calcagni Memorandum at p. 3; 
Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 
989-90 (6th Cir. 1998); Wall, 265 F.3d 426 (6th Cir. 2001), plus any 
additional measures it may approve in conjunction with a redesignation 
action. See, 68 FR 25426 (May 12, 2003) and citations therein. 
Following passage of the CAA of 1970 by the U.S. Congress, Kentucky 
adopted and submitted, and EPA has fully approved at various times, 
provisions addressing the various 1-hour ozone standard SIP elements 
applicable in the Boyd County, Kentucky (60 FR 33748, June 29, 1995).
    As indicated above, EPA believes that the section 110 elements not 
connected with nonattainment plan submissions and not linked to the 
area's nonattainment status are not applicable requirements for 
purposes of redesignation. EPA also believes that since the part D 
requirements applicable for purposes of redesignation did not become 
due prior to submission of the redesignation request, they also are 
therefore not applicable requirements for purposes of redesignation.

Criteria (3)--The Air Quality Improvement in the Boyd County Portion of 
the Huntington-Ashland 8-hour Ozone Area Is Due to Permanent and 
Enforceable Reductions in Emissions Resulting From Implementation of 
the SIP and Applicable Federal Air Pollution Control Regulations and 
Other Permanent and Enforceable Reductions

    EPA believes that Kentucky has demonstrated that the observed air 
quality improvement in the area is due to permanent and enforceable 
reductions in emissions resulting from implementation of the SIP, 
Federal measures, and other state-adopted measures. EPA has determined 
that the implementation of the following permanent and enforceable 
emissions controls, that occurred from 2001-2005, have reduced local 
NOX and VOC emissions and brought the area into attainment:

                  2001-2005 Emission Reduction Programs
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Highway Mobile Source Reductions:
  Federal Motor Vehicle Control Programs (FMVCP)
  Lower Reid Vapor Pressure
  Fleet Turnover of Automobiles
  Tier 2 Vehicle Emissions and Fuel Standards
  Heavy Duty Engine and Vehicle Fuel Standards
Point Source Emissions Reductions:
  Reasonably Available Control Measures (RACM)
  Maximum Available Control Technology (MACT)
Non-Highway Mobile Source Reductions:
  Small Spark-Ignition engines
  Large Spark-Ignition engines
  Locomotives
  Land based diesel engines
Additional Reductions:
  NOX SIP Call Reductions
------------------------------------------------------------------------

Notably, no credit specific emission reduction is being claimed in the 
SIP for the NOX SIP Call reductions although this program 
has resulted in measurable emissions reductions.
    Kentucky has demonstrated that the implementation of permanent and 
enforceable emissions controls have reduced local VOC and 
NOX emissions. Most of the reductions are attributable to 
Federal programs such as EPA's Tier 2/Low Sulfur Gasoline program and 
other national clean fuel programs that began implementation in 2004. 
Additionally, Kentucky has indicated in its September 2006 submittal 
that the Huntington-Ashland area has benefited from emissions 
reductions that have been achieved and will continue to be achieved 
through the implementation of the NOX SIP Call, beginning in 
2002. Kentucky has further demonstrated that year-to-year 
meteorological changes and trends are not the likely source of the 
overall, long-term improvements in ozone levels. In addition, the 
following non-highway mobile source reduction programs were implemented 
during the 2002-2004 period: Small spark-ignition engines, large-spark 
ignition engines, locomotives and land-base diesel engines. EPA 
believes that permanent and enforceable emissions reductions, in and 
surrounding the nonattainment area, are the cause of long-term 
improvements in ozone levels, and are the cause of the Huntington-
Ashland Area achieving attainment of the ozone standard.

Criteria (4)--The Area Has a Fully Approved Maintenance Plan Pursuant 
to Section 175A of the CAA

    In its request to redesignate the Boyd County, Kentucky area (as 
part of the Huntington-Ashland 8-hour ozone nonattainment area) to 
attainment, KDAQ submitted a SIP revision to provide for the 
maintenance of the 8-hour ozone NAAQS in the Boyd County,

[[Page 26766]]

Kentucky area for at least 10 years after the effective date of 
redesignation to attainment.
 a. What is required in a maintenance plan?
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after the Administrator 
approves a redesignation to attainment. Eight years after the 
redesignation, Kentucky must submit a revised maintenance plan which 
demonstrates that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation as EPA deems 
necessary to assure prompt correction of any future 8-hour ozone 
violations. Section 175A of the CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni Memorandum provides additional guidance on the 
content of a maintenance plan. The Calcagni Memorandum explains that an 
ozone maintenance plan should address five requirements: The attainment 
emissions inventory, maintenance demonstration, monitoring, 
verification of continued attainment, and a contingency plan. As is 
discussed more fully below, Kentucky's maintenance plan includes all 
the necessary components and is approvable as part of the redesignation 
request.
b. Attainment Emissions Inventory
    In coordination with West Virginia, Kentucky selected 2004 as ``the 
attainment year'' for Boyd County (as part of the Huntington-Ashland 8-
hour ozone area) for the purposes of demonstrating attainment of the 8-
hour ozone NAAQS. This attainment inventory identifies the level of 
emissions in the area which is sufficient to attain the 8-hour ozone 
standard. Kentucky began development of this attainment inventory by 
first developing a baseline emissions inventory for the Boyd County. 
The year 2002 was chosen as the base year for developing a 
comprehensive ozone precursor emissions inventory for which projected 
emissions could be developed for 2004, 2005, 2008, 2011, 2014, 2017, 
and 2018. Non-road mobile emissions were calculated using the most 
recent non-road model. On-road mobile source emissions were calculated 
using EPA's MOBILE6.2 emission factors model. The 2004 VOC and 
NOX emissions (as well as the emissions for other years) for 
Boyd County, Kentucky were developed consistent with EPA guidance, and 
are summarized in the table in the following subsection.
c. Maintenance Demonstration
    The September 29, 2006, final submittal includes a maintenance plan 
for the Boyd County area. This demonstration:

    (i) Shows compliance and maintenance of the 8-hour ozone 
standard by providing information to support the demonstration that 
current and future emissions of VOC and NOX remain at or 
below attainment year 2004 emissions levels. The year 2004 was 
chosen as the attainment year because it is one of the most recent 
three years (i.e., 2003, 2004, and 2005) for which the Huntington-
Ashland area has clean air quality data for the 8-hour ozone 
standard.
    (ii) Uses 2004 as the attainment year and includes future 
emission inventory projections for the 2005, 2008, 2011, 2014, 2017 
and 2018.
    (iii) Identifies an ``out year,'' at least 10 years after the 
time necessary for EPA to review and approve the maintenance plan. 
Per 40 CFR part 93, a MVEB was established for the last year of the 
maintenance plan (2018). See section VII below.
    (iv) Provides the following actual and projected emissions 
inventories for the Boyd County portion of the Huntington-Ashland 
nonattainment area.

                                                           Table 2.--Boyd County VOC Emissions
                                                                    [Tons per day] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Source category                   2004            2005            2008            2011            2014            2017            2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...................................           17.52           17.76           18.49           19.09           19.81           20.54           20.79
Area....................................            2.97            2.97            2.97            2.97            2.97            2.97            2.97
Mobile **...............................            2.50            2.28            1.91            1.63            1.38            1.23            1.18
Nonroad.................................            0.71            0.68            0.61            0.56            0.55            0.56            0.56
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................           23.70           23.69           23.98           24.25           24.71           25.30           25.50
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See further information in Section VI(4)(e) Verification of Continued Attainment.
** Calculated using MOBILE 6.2.


                                                           Table 3.--Boyd County NOX Emissions
                                                                    [Tons per day] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Source category                   2004            2005            2008            2011            2014            2017            2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...................................           16.17           16.35           16.90           17.37           17.92           18.48           18.68
Area....................................            0.09            0.10            0.10            0.10            0.10            0.10            0.10
Mobile **...............................            3.79            3.60            2.98            2.36            1.79            1.41            1.30
Nonroad.................................            1.83            1.81            1.71            1.63            1.54            1.48            1.47
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................           21.89           21.86           21.69           21.46           21.35           21.47           21.55
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See further information in Section VI(4)(e) Verification of Continued Attainment.
** Calculated using MOBILE 6.2.

    Although the Kentucky SIP submission provided VOC and 
NOX emissions for the attainment and future years for Boyd 
County, EPA considers emissions from the entire Huntington-Ashland area 
for a demonstration of maintenance. Maintenance is demonstrated if the 
future year NOX and VOC emission for the entire area remains 
at or below the level of the attainment year emissions. Both Kentucky 
and West Virginia chose 2004

[[Page 26767]]

for their ``attainment year'' for this area. While the VOC emissions 
for the Boyd County, Kentucky portion of the Huntington-Ashland area 
indicate a steady increase of emissions beyond the attainment year, it 
is important to note that this area is comprised of three counties for 
which emissions should be considered. EPA's review of VOC emissions for 
the entire area indicates that these emissions are 47.40 tpd in 2004, 
and 45.20 tpd in 2018, which is an overall downward trend in emissions 
for the area. Similarly, EPA's review of NOX emissions for 
the entire area also indicates an overall downward trend in emissions 
for the area, with a total of 59.29 tpd in 2004 and 48.55 tpd in 2018. 
Therefore, it is highly likely that maintenance of the 8-hour ozone 
standard will be maintained in the future for the Huntington-Ashland 
area.
d. Monitoring Network
    There are currently two monitors measuring ozone in the Huntington-
Ashland 8-hour ozone area (one in Cabell County, West Virginia and one 
in Boyd County, Kentucky). KDAQ has committed in the maintenance plan 
to continue operation of the monitor in Boyd County in compliance with 
40 CFR part 58, and has addressed the requirement for monitoring. West 
Virginia has provided a similar commitment for the monitor in Cabell 
County, West Virginia.
e. Verification of Continued Attainment
    Kentucky has the legal authority to enforce and implement the 
requirements of the ozone maintenance plan for the Boyd County, 
Kentucky area. This includes the authority to adopt, implement and 
enforce any subsequent emissions control contingency measures 
determined to be necessary to correct future ozone attainment problems.
    Kentucky will track the progress of the maintenance plan by 
performing future reviews of actual emissions for the area using the 
latest emissions factors, models and methodologies. For these periodic 
inventories Kentucky will review the assumptions made for the purpose 
of the maintenance demonstration concerning projected growth of 
activity levels. If any of these assumptions appear to have changed 
substantially, Kentucky will re-project emissions. Following the 
redesignation of the area, sources are prohibited from reducing 
emission controls already in place when attainment is achieved unless 
EPA approves a SIP revision consistent with section 110 of the CAA.
    Kentucky and EPA have instituted the following programs that will 
remain enforceable and are included as part of Kentucky's September 
2006 SIP submittal, to maintain air quality which meets the NAAQS for 
the 8-hour ozone standard.
     All new major VOC or NOX sources locating in 
Kentucky shall as a minimum apply control procedures that are 
reasonable, available, and practical;
     All major modifications to existing major VOC or 
NOX sources are subject to RACM requirements as well as the 
BACT requirement of the Kentucky Division of Air Quality PSD 
regulations;
     Federal Motor Control Standards apply in Kentucky;
     Transportation Conformity Requirements;
     PSD Requirements;
     Federal Controls on certain nonroad engines (e.g. diesel 
and other Federal requirements, industrial diesel equipment, 
locomotives) after 2000;
     Federal controls on the VOC content for Architectural and 
Maintenance Paints, Auto Body Shops and Consumer Products.
    In addition to these measures, Kentucky explains that more controls 
are expected to occur in the Boyd County area which are not factored 
into the projected future year emissions analyses. For example, a major 
refinery, Marathon Ashland Oil Cattlesburg is undergoing a project 
entitled the Refinery Modernization Project, which involves new 
operational and emissions limitations. The proposed Refinery 
Modernization Project involves installation of new equipment and 
upgrading of existing equipment. The following emission reductions were 
expected to occur from the Ashland Project by 2006:

 PM 33 tons per year (decrease)
 PM10 33 tons per year (decrease)
 SO2 3,605 tons per year (decrease)
 NOX 730 tons per year (decrease)
 CO 4 tons per year (decrease)
 VOC 64 tons per year (decrease)

    When these reductions are factored into future emission 
inventories, the totals for the emission inventories for Boyd County 
are expected to decrease.
f. Contingency Plan
    The contingency plan provisions are designed to promptly correct 
any violation of the NAAQS that occurs after redesignation. Section 
175A of the CAA requires that a maintenance plan include such 
contingency measures as EPA deems necessary to assure that the state 
will promptly correct a violation of the NAAQS that occurs after 
redesignation. The maintenance plan should identify the contingency 
measures to be adopted, a schedule and procedure for adoption and 
implementation, and a time limit for action by the state. A state 
should also identify specific indicators to be used to determine when 
the contingency measures need to be implemented. The maintenance plan 
must include a requirement that a state will implement all measures 
with respect to control of the pollutant that were contained in the SIP 
before redesignation of the area to attainment in accordance with 
section 175A(d). This requirement is met because all SIP measures are 
retained for maintenance. Kentucky's submittal satisfies all the 
contingency plan requirements described in section 175A of the CAA.
    In the September 29, 2006, final submittal, Kentucky affirms that a 
combination of all programs instituted by Kentucky and EPA have 
resulted in cleaner air in the Huntington-Ashland area and the 
anticipated future benefits from these programs are expected to result 
in continued maintenance of the 8-hour ozone NAAQS in this area. 
Sources are prohibited from terminating emissions controls following 
the redesignation of Boyd County unless EPA approves a SIP revision 
consistent with section 110 of the CAA. The contingency plan includes 
tracking and triggering mechanisms to determine when contingency 
measures are needed and a process of developing and adopting 
appropriate control measures. The primary trigger is a measured 
violation of the 8-hour ozone NAAQS. If there is a measured violation 
of the 8-hour ozone NAAQS in Boyd County, Kentucky commits to develop 
regulations for at least one of the following control measures for 
submission to the EPA within nine months. All regulatory programs will 
be implemented within 18 months from a measured violation. Kentucky 
will consider one or more of the measures contained in the list of 
potential contingency measures below.
    The secondary triggers in the contingency plan are (1) if a 
measured value of the fourth highest maximum is 0.087 ppm or greater at 
the Boyd County monitor in a single ozone season, or (2) if periodic 
emission inventory updates reveal excessive or unanticipated growth 
greater than 10 percent in ozone precursor emissions. If either of 
these two triggers are met, Kentucky will evaluate existing control 
measures to determine if any further emission reduction measures should 
be implemented at that time.
    Potential Contingency Measures:
     Implementation of a program to require additional emission 
reductions on stationary source;

[[Page 26768]]

     Implementation of a program to enhance inspection of 
stationary sources to ensure emission control equipment is functioning 
properly;
     Open burning restrictions during ozone season;
     High-volume, low pressure spray guns and low VOC degreaser 
solvents;
     Implementation of incentives for alternative fuels 
programs;
     Restriction of certain roads or lanes to, or construction 
of such roads or lanes for use by, passenger buses or high occupancy 
vehicles;
     Trip-reduction ordinances;
     Employer-based transportation management plans including 
incentives;
     Programs to limit or restrict vehicle use in downtown 
areas, or other areas of emission concentration particularly during 
periods of peak use;
     Programs for new construction and major reconstructions of 
paths or tracks for use by pedestrians or by non-motorized vehicles 
when economically feasible and in the public interest.
    EPA has concluded that the maintenance plan adequately addresses 
the five basic components of a maintenance plan: Attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and a contingency plan. The maintenance plan SIP 
revision submitted by Kentucky for Boyd County meets the requirements 
of section 175A of the CAA and is approvable.

VII. What Are the Proposed State MVEBs for Boyd County, Kentucky?

    Under the CAA, states are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (reasonable further progress SIPs and attainment 
demonstration SIPs etc.) and maintenance plans create MVEBs for 
criteria pollutants and/or their precursors to address pollution from 
cars and trucks. Per 40 CFR part 93, a MVEB is established for the last 
year of the maintenance plan. The MVEB is the portion of the total 
allowable emissions in the maintenance demonstration that is allocated 
to highway and transit vehicle use and emissions. See, 40 CFR 93.101. 
The MVEB serves as a ceiling on emissions from an area's planned 
transportation system. The MVEB concept is further explained in the 
preamble to the November 24, 1993, transportation conformity rule (58 
FR 62188). The preamble also describes how to establish the MVEB in the 
SIP and revise the MVEB.
    Kentucky and West Virginia have elected to develop separate state 
MVEBs to cover their individual portions of the Huntington-Ashland 8-
hour ozone area. As required, Kentucky is only establishing state MVEBs 
for NOX and VOC for the last year of the maintenance plan 
(2018). EPA is now proposing to approve these state MVEBs. The state 
MVEBs for Boyd County, Kentucky are defined in the table below.

                    Table 4.--Boyd County 2018 MVEBs
                             [Tons per day]
------------------------------------------------------------------------
                NOX                                  VOC
------------------------------------------------------------------------
                    1.30                                 1.18
------------------------------------------------------------------------

    Through this rulemaking, EPA is proposing to approve the 2018 state 
MVEBs for NOX and VOCs for Boyd County, Kentucky because EPA 
has determined that the Huntington-Ashland area maintains the 8-hour 
ozone standard with emissions at the levels of the budgets. As 
mentioned above, these MVEBs will be separate state area budgets for 
Boyd County, Kentucky. West Virginia established MVEBs for the 
remainder of the Huntington-Ashland 8-hour ozone area (i.e., Cabell and 
Wayne counties) through the 8-hour ozone maintenance plan that was 
submitted with West Virginia's request for redesignation. Through a 
separate rulemaking, EPA found adequate and approved the MVEBs for the 
West Virginia portion of this 8-hour ozone area (see 71 FR 39618). Once 
the new state MVEBs for Boyd County, Kentucky (the subject of this 
rulemaking) are approved or found adequate (whichever is done first), 
they must be used for future transportation conformity determinations. 
As is discussed in greater detail below, EPA is also announcing the 
status of its adequacy determination for the proposed 2018 MVEBs for 
Boyd County, Kentucky pursuant to 40 CFR 93.118(f)(1).

VIII. What Is the Status of EPA's Adequacy Determination of the MVEBs 
for Boyd County, Kentucky?

    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the NAAQS. If a transportation plan does not ``conform,'' most new 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a SIP. The regional emissions analysis is 
one, but not the only, requirement for implementing transportation 
conformity. Transportation conformity is a requirement for 
nonattainment and maintenance areas. Maintenance areas are areas that 
were previously nonattainment for a particular NAAQS but have since 
been redesignated to attainment with a maintenance plan for that NAAQS.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEB contained 
therein ``adequate'' for use in determining transportation conformity. 
Once EPA affirmatively finds the submitted MVEB is adequate for 
transportation conformity purposes, that MVEB can be used by state and 
Federal agencies in determining whether proposed transportation 
projects ``conform'' to the SIP as required by section 176(c) of the 
CAA.
    EPA's substantive criteria for determining ``adequacy'' of an MVEB 
are set out in 40 CFR 93.118(e). The process for determining 
``adequacy'' consists of three basic steps: Public notification of a 
SIP submission, a public comment period, and EPA's adequacy finding. 
This process for determining the adequacy of submitted SIP MVEBs was 
initially outlined in EPA's May 14, 1999 guidance, ``Conformity 
Guidance on Implementation of March 2, 1999, Conformity Court 
Decision.'' This guidance was finalized in the Transportation 
Conformity Rule Amendments for the ``New 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards and Miscellaneous Revisions for 
Existing Areas; transportation conformity rule amendments--Response to 
Court Decision and Additional Rule Change'' on July 1, 2004 (69 FR 
40004). EPA follows this guidance and rulemaking in making its adequacy 
determinations.
    Kentucky's maintenance plan submission contained new VOC and 
NOX MVEBs for Boyd County, Kentucky for the year 2018. The 
availability of the Kentucky SIP submission with the Boyd County MVEBs 
was announced for public comment on EPA's adequacy Web page on June 21, 
2006 at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. 
The EPA public comment period on adequacy of the 2018 MVEBs for the 
Boyd County, Kentucky closed on July 21, 2006. EPA did not receive any 
adverse comments

[[Page 26769]]

regarding the MVEBs or requests for the submittal.
    EPA's current intentions are to make its determination of the 
adequacy of the 2018 MVEBs for Boyd County, Kentucky for transportation 
conformity purposes in the final rulemaking on the redesignation of the 
Boyd County, Kentucky portion of the Huntington-Ashland 8-hour ozone 
area. If EPA finds the 2018 MVEBs adequate and approves the 2018 MVEBs 
in the final rulemaking action, the new MVEBs must be used for future 
transportation conformity determinations. The new 2018 MVEBs, if found 
adequate and approved in the final rulemaking, will be effective the 
date of publication of EPA's final rulemaking in the Federal Register. 
For required regional emissions analysis years that involve the year 
2017 or before, the applicable budget for the purposes of conducting 
transportation conformity will be the MVEBs for Boyd County from the 
Huntington-Ashland 1-hour ozone maintenance plan. For required regional 
emissions analysis years that involve 2018 or beyond, the applicable 
budgets are defined in section VII of this rulemaking.

IX. Proposed Actions on the Redesignation Request and the Maintenance 
Plan SIP Revision Including Proposed Approval of the 2018 MVEBs

    Today, EPA is proposing to determine that Boyd County, Kentucky has 
met the criteria for redesignation from nonattainment to attainment for 
the 8-hour ozone NAAQS. Further, EPA is proposing to approve Kentucky's 
redesignation for Boyd County, Kentucky (as a part of the Huntington-
Ashland 8-hour ozone area). In a separate action, EPA approved the 8-
hour ozone redesignation of the West Virginia portion of this area from 
nonattainment to attainment. See, 71 FR 54421 (September 15, 2006). 
After evaluating Kentucky's SIP submittal requesting redesignation, EPA 
has determined that it meets the redesignation criteria set forth in 
section 107(d)(3)(E) of the CAA. EPA believes that the redesignation 
request and monitoring data demonstrate that the Boyd County portion of 
the Huntington-Ashland area has attained the 8-hour ozone standard.
    EPA is also proposing to approve the September 29, 2006, SIP 
revision containing Kentucky's 8-hour ozone maintenance plan for Boyd 
County, Kentucky. The maintenance plan includes state MVEBs for 2018, 
among other requirements. EPA is proposing to approve the 2018 MVEBs 
for Boyd County because the maintenance plan demonstrates that expected 
emissions for the area in 2018, including the 2018 MVEBs plus the 
estimated emissions for all other source categories, will continue to 
maintain the 8-hour ozone standard.
    Further, as part of today's action, EPA is providing the status of 
its adequacy determination for the 2018 MVEBs for Boyd County in 
accordance with 40 CFR 93.118(f)(1). Within 24 months from the 
effective date of EPA's adequacy finding for the MVEBs, or the 
publication date for the final rule for this action, the transportation 
partners will need to demonstrate conformity to these new MVEBs 
pursuant to 40 CFR 93.104(e) as effectively amended by section 
172(c)(2)(E) of the CAA as added by the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act--A Legacy for Users (SAFETEA-LU), 
which was signed into law on August 10, 2005.

X. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Redesignation of an area to attainment under 
section 107(d)(3)(e) of the CAA does not impose any new requirements on 
small entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on sources. 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 approve 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 
(Pub. L. 104-4).
    This proposed 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 affects the status of a geographical area, does not impose any 
new requirements on sources, or allow a state to avoid adopting or 
implementing other 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 ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not 
economically significant and because the Agency does not have reason to 
believe that the rule concerns an environmental health risk or safety 
risk that may disproportionately affect children.
    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. Redesignation is an 
action that affects the status of a geographical area but does not 
impose any new requirements on sources. 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 proposed 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

40 CFR Part 52

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

[[Page 26770]]

40 CFR Part 81

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

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

    Dated: May 3, 2007.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E7-9130 Filed 5-10-07; 8:45 am]
BILLING CODE 6560-50-P