[Federal Register Volume 74, Number 142 (Monday, July 27, 2009)]
[Proposed Rules]
[Pages 36977-36980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17823]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0023; FRL-8935-2]


Approval and Promulgation of Implementation Plans; Kentucky; 
Variance of Avis Rent-A-Car and Budget Rent-A-Car Facilities Located at 
the Cincinnati/Northern Kentucky International Airport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the source-specific State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Kentucky on February 4, 2009, for the purpose of removing Stage II 
vapor control requirements at Avis Rent-A-Car, and Budget Rent-A-Car 
facilities located at the Cincinnati/Northern Kentucky International 
Airport. This proposed revision to the SIP is approvable based on the 
December 12, 2006, EPA policy memorandum from Stephen D. Page entitled 
Removal of Stage II Vapor Recovery in Situations Where Widespread Use 
of Onboard Refueling Vapor Recovery is Demonstrated. This action is 
being taken pursuant to Section 110 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 26, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-0023 by one of the following method:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2009-0023'', 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, 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-
2009-0023''. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://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 http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'', which means EPA will not know your identity or 
contact information unless you provide it in the body of your comments. 
If you send an e-mail comment directly to EPA without going through 
http://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 you 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 
http://www.regulations.gov index. 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 materials, 
such as copyrighted material, is not placed on the Internet and will be 
publicly available only in the hard copy form. Publicly available 
docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticide and

[[Page 36978]]

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: Mohammad Madjdinasab, 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) 562-9026. Mr. Madjdinasab can also be reached via electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

    I. Background
    II. Analysis of the State's Submittals
    III. Proposed Action
    IV. Statutory and Executive Order Reviews

I. Background

    Under the CAA Amendments of 1990 (See 56 FR 56694, effective 
January 6, 1992), EPA designated and classified three Kentucky counties 
(Boone, Campbell, and Kenton in the Northern Kentucky Area) and four 
Ohio counties (Butler, Clermont, Hamilton, and Warren) as a 
``moderate'' ozone nonattainment area as part of the Cincinnati/
Northern Kentucky Area. The designation was based on the Area's 1-hour 
ozone design value of 0.157 parts per million (ppm) for the three year 
period of 1988-1990. Pursuant to the requirements of section 182(b)(3) 
of the CAA, the Commonwealth of Kentucky, Energy and Environment 
Cabinet, Division of Air Quality (KDAQ) developed Kentucky 
Administrative Regulations (KAR) 401 KAR 59:174 Stage II controls at 
gasoline dispensing facilities, and submitted the rule to EPA for 
approval as part of Kentucky's ozone SIP. The rule was adopted by the 
Commonwealth of Kentucky on January 12, 1998, and approved by EPA into 
the SIP on December 8, 1998 (63 FR 675896). Under this regulation, 
gasoline dispensing facilities with a monthly throughput of 25,000 
gallons or more located in a Kentucky county in which the entire county 
is classified as severe, serious, or moderate nonattainment for ozone, 
are required to install Stage II vapor recovery systems.
    On October 29, 1999, having implemented all measures required of 
Kentucky to that date for moderate ozone nonattainment areas under the 
CAA, and with three years of data (1996-1998) showing compliance with 
the 1-hour ozone standard, KDAQ submitted to EPA an ozone maintenance 
plan and request for redesignation of the Cincinnati/Northern Kentucky 
area to attainment status. The maintenance plan, as required under 
section 175A of the CAA, showed that nitrogen oxides and volatile 
organic compound (VOC) emissions in the area would remain below the 
1990 ``attainment year'' levels. In making these projections, KDAQ 
factored in the emissions benefit (primarily VOCs) of the area's Stage 
II program, and did not remove this program as part of its 1-hour ozone 
SIP. The redesignation request and maintenance plan were approved by 
EPA, effective June 19, 2000 (65 FR 37879). Since the Kentucky Stage II 
program was already in place and had been included in the State's 
October 29, 1999, redesignation request and 1-hour ozone maintenance 
plan for the Area, KDAQ elected not to remove the program from the SIP 
at that time.
    On April 6, 1994, EPA promulgated regulations requiring the phase-
in of on-board refueling vapor recovery (ORVR) systems on new motor 
vehicles. Under Section 202(a)(6) of the CAA, moderate ozone 
nonattainment areas are not required to implement Stage II vapor 
recovery programs after promulgation of ORVR standards.

II. Analysis of Kentucky's Submittal

A. Requested Source Specific Exemption of Stage II Requirements

    EPA's primary consideration for determining the approvability of 
Kentucky's request to exempt Stage II vapor control requirements for 
Avis Rent-A-Car and Budget Rent-A-Car facilities located at the 
Cincinnati/Northern Kentucky International Airport is whether this 
requested action complies with section 110 (a)(l) of the CAA. Below is 
EPA's analysis of these considerations.
1. Federal Requirements for Stage II
    States were required to adopt Stage II rules for all areas 
classified as ``moderate'' or worse under section 182(b)(3) of the CAA. 
However, section 202(a)(6) of the CAA states that ``the requirements of 
section 182(b)(3) (relating to Stage II gasoline vapor recovery) for 
areas classified under section 181 as moderate for ozone shall not 
apply after promulgation of such standards.'' ORVR regulations were 
promulgated by EPA on April 6, 1994 (see 59 FR 16262, 40 CFR 86.001 and 
40 CFR 86.098). As a result, the CAA no longer requires moderate areas 
to impose Stage II controls under section 182(b)(3), and such areas may 
seek SIP revisions to remove such requirements from their SIP, subject 
to section 110(l) of the Act. EPA's policy memorandum related to ORVR, 
dated March 9, 1993, and June 23, 1993, provided further guidance on an 
allowance for removing Stage II requirements from certain areas. The 
policy memorandum dated March 9, 1993 states ``When onboard rules are 
promulgated, a State may withdraw its stage II rules for moderate areas 
from the SIP (or from consideration as a SIP revision) consistent with 
its obligation under sections 182(b)(3) and 202(a)(6), so long as 
withdrawal will not interfere with any other applicable requirement of 
the Act.'' Because Kentucky is taking credit for Stage II in its 
maintenance plan, this action is subject to section 110(l) of the CAA, 
which states:

    Plan Revision--Each revision to an implementation plan submitted 
by a State under this chapter shall be adapted by such State after 
reasonable notice and public hearing. The Administrator shall not 
approve a revision of a plan if the revision would interfere with 
any applicable requirement concerning attainment and reasonable 
further progress (as defined in section 7501 of this title), or any 
other applicable requirement of this chapter.

    As such, Kentucky must make a demonstration of noninterference in 
order to remove Stage II from the SIP for Avis Rent-A-Car and Budget 
Rent-A-Car facilities located at the Cincinnati/Northern Kentucky 
International Airport.
2. Cincinnati--Hamilton Interstate Area Air Quality Status
    On April 30, 2004, EPA designated the Cincinnati/Northern Kentucky 
Area, which consists of Boone, Campbell, and Kenton Counties in 
Kentucky (and Butler, Clermont, Clinton, Hamilton, and Warren Counties 
in Ohio) as nonattainment for the 1997 8-hour ozone national ambient 
air quality standard (NAAQS) (69 FR 23857). The Cincinnati/Northern 
Kentucky Area remains designated as nonattainment, and has 2005-2007 
and 2006-2008 8-hour ozone design values of 0.086 pp and 0.085 ppm, 
respectively. On March 12, 2008, EPA strengthened the 8-hour ozone 
NAAQS by revising it to 0.075. Designations for this new 8-hour NAAQS 
are scheduled for March 2010.
    On January 5, 2005, EPA published designations for the 1997 annual 
and 24-hour PM2.5 standard (70 FR 944). The Cincinnati/
Northern Kentucky Area was designated as an attainment area for the 
1997 24-hour PM2.5 standard. However,

[[Page 36979]]

this same area was designated as nonattainment for the 1997 annual 
PM2.5 standard and has remained as a nonattainment area for 
that standard. Compliance with the 1997 PM2.5 annual 
standard is 15 microgram per cubic meter (ug/m3). The annual 
PM2.5 design value for Cincinnati/Northern Kentucky area for 
the period of 2005-2007 was 17.3 ug/m3.
    On October 17, 2006 and effective December 18, 2006, EPA published 
a rulemaking regarding the NAAQS for the PM2.5 standard. 
Specifically, EPA retained the annual PM2.5 standard of 15 
ug/m3 and revised 24-hour PM2.5 standard, 
changing it from 65 ug/m3 to 35 ug/m3. The 
revision of the 24-hour PM2.5 standard in 2006, triggered 
the designation process for the standard. Based on 2006-2008 monitoring 
data, the design value for the Cincinnati/Northern Kentucky Area is 
34.9 ug/m3, which is in compliance with the standard. The 
Commonwealth of Kentucky submitted a letter dated February 10, 2009, 
which requested that the Cincinnati/Northern Kentucky Area be 
classified attainment based on 2006-2008 data. EPA has yet to publish 
the final rulemaking with the final designations for the revised 24-
hour PM2.5 standard.
3. Non-Interference Demonstration for Exemption of Stage II 
Requirements
    This proposed source-specific revision to the Kentucky SIP is 
approvable based on the CAA and the December 12, 2006, EPA memorandum 
from Stephen D. Page entitled, Removal of Stage II Vapor Recovery in 
Situations Where Widespread Use of On-board Refueling Vapor Recovery is 
Demonstrated which provides guidance to States concerning the removal 
of Stage II gasoline vapor recovery systems where States demonstrate to 
EPA that widespread use of ORVR has occurred in specific portions of 
the motor vehicle fleet. States were required to adopt Stage II rules 
for such areas under section 182(b)(3) of the CAA. However, Section 
202(a)(6) of the CAA states that ``The requirements of section 
182(b)(3) of this title (relating to stage II gasoline vapor recovery) 
for areas classified under section 181 of this title as moderate for 
ozone shall not apply after promulgation of such standards and the 
Administrator may, by rule, revise or waive the application of the 
requirements of such section 182(b)(3) of this title for areas 
classified under section 181 of this title as serious, severe, or 
extreme for ozone * * *.'' Section 202 On-board Refueling Vapor 
Recovery regulations were promulgated by EPA on April 6, 1994, and the 
requirements of these regulations are currently being phased in. In 
this circumstance, EPA does believe that a determination of 
``widespread'' use is necessary to provide for the source specific SIP 
revision for Stage II requirements for Avis Rent-A-Car and Budget Rent-
A-Car facilities. EPA's December 12, 2006, memorandum states that if 95 
percent of the vehicles in a fleet have ORVR, then widespread use will 
likely have been demonstrated for that fleet. The memorandum addresses 
the following specific fleets:
     Initial fueling of new vehicles at automobile assembly 
plants;
     Refueling of rental cars at rental car facilities;
     Refueling of flexible fuel vehicles at E85 dispensing 
pumps.
    Most large rental car companies rent current model vehicles that 
are equipped with ORVR and vehicle models are changed to current year 
models every year or two. The Commonwealth of Kentucky has confirmed 
that 100 percent and not less than 95 percent of vehicles at Avis Rent-
A-Car and Budget Rent-A-Car facilities located at the Cincinnati/
Northern Kentucky International Airport are equipped with ORVR.
    CAA section 110(a)(2)(D)(i)(I) prohibits facilities within the 
State from emitting any air pollutants in amounts which will contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other State with respect to any such national primary or secondary 
ambient air quality standards. The only pollutant emitted by refueling 
vehicles is VOC, which is a precursor of ozone, and its emissions are 
mitigated by use of vehicles equipped with ORVR. Kentucky has 
adequately demonstrated that ORVR has supplanted Stage II requirements 
at Avis Rent-A-Car and Budget Rent-A-Car facilities.

III. Proposed Action

    EPA is proposing to approve the aforementioned source-specific SIP 
revision request from Kentucky. VOC emissions from vehicles at Avis 
Rent-A-Car and Budget Rent-A-Car facilities are controlled by ORVR, 
therefore, we conclude that removal of Stage II requirements at these 
facilities would not result in an increase of VOC emissions, and thus 
would not contribute to ozone formation. The Commonwealth is seeking to 
remove this requirement for these rent-a-car facilities and has fully 
satisfied the requirements of Section 110(l) of the CAA. Therefore, we 
are proposing to approve this source-specific SIP revision, as it is 
consistent with Section 110 of CAA.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in an Indian country located 
in the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal laws.

[[Page 36980]]

List of Subjects in 40 CFR Part 52

    Environmental Protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Volatile organic compounds, 
Ozone, Sulfur oxides, Nitrogen dioxide.

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

    Dated: July 7, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
[FR Doc. E9-17823 Filed 7-24-09; 8:45 am]
BILLING CODE 6560-50-P