[Federal Register: May 18, 2005 (Volume 70, Number 95)]
[Rules and Regulations]
[Page 28429-28436]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my05-10]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R04-OAR-2004-KY-0002-200511; FRL-7914-5]
Approval and Promulgation of Implementation Plans for Kentucky:
Inspection and Maintenance Program Removal for Jefferson County,
Kentucky; Source-Specific Nitrogen Oxides Emission Rate for Kosmos
Cement Kiln
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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[[Page 28430]]
SUMMARY: EPA is approving a revision to the Jefferson County, Kentucky,
portion of the Kentucky State Implementation Plan (SIP) requesting
removal of three regulations from the regulatory portion of the
Kentucky SIP related to the Jefferson County inspection and maintenance
(I/M) program. EPA is approving Kentucky's September 22, 2003, SIP
revision to move these I/M regulations to the contingency measures
section of the Kentucky portion of the Louisville 1-Hour Ozone
Maintenance Plan. EPA is also approving a source-specific SIP revision
amending the nitrogen oxides (NOX) emission rate for Kosmos
Cement Company's cement kiln. This final rule addresses comments made
on EPA's proposed rulemaking previously published for this action.
DATES: This rule will be effective June 17, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID No. R04-OAR-2004-KY-0002. All documents in
the docket are listed in the RME index at http://docket.epa.gov/rmepub/,
once in the system, select ``quick search,'' then key in the
appropriate RME Docket identification number. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in RME
or in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the contact listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, Region 4, U.S. Environmental Protection Agency, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be
reached via telephone number at (404) 562-9031 or electronic mail at
notarianni.michele@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Today's Action
II. Background
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. Today's Action
EPA is approving revisions to the Jefferson County, Kentucky,
portion of the Kentucky SIP related to the Jefferson County I/M
program, also known as the Jefferson County Vehicle Emissions Testing
(VET) Program. Through this final action, EPA is approving the movement
of three regulations which comprise the Jefferson County VET Program
from the regulatory portion of the Kentucky SIP to the contingency
measures section of the Kentucky portion of the Louisville 1-Hour Ozone
Maintenance Plan, which is part of the Kentucky SIP. The three
Jefferson County VET Program regulations which are subject to today's
action are: Regulation 8.01, ``Mobile Source Emissions Control
Requirements,'' Regulation 8.02, ``Vehicle Emissions Testing
Procedure,'' and Regulation 8.03, ``Commuter Vehicle Testing
Requirements.'' Also in this final action EPA is approving a source-
specific SIP revision for changes reflected in the May 3, 2004, Board
Order for the Kosmos Cement Company's cement kiln. EPA is approving the
revisions to the Board Order which lower the kiln's NOX
emission rate to 4.755 pounds per ton of clinker produced (pptcp) by
the kiln, based upon a rolling 30-day average. In addition, EPA is
responding to the adverse comments received on the January 3, 2005,
rulemaking proposing to approve the aforementioned revisions (70 FR
53).
II. Background
On January 3, 2005, EPA proposed approval of Kentucky's September
22, 2003, SIP revision request to move the three, SIP-approved
Jefferson County VET Program regulations to the contingency measures
section of the Kentucky SIP, and to lower the NOX emission
rate for the Kosmos Cement Company's cement kiln (70 FR 53). The
emissions reductions from the Kosmos Cement Company provide
compensating, equivalent emissions reductions for the Jefferson County
VET Program. (See the proposed rule published January 3, 2005, at 70 FR
53 for further background and a detailed analysis of the complete
September 22, 2003, SIP revision.) EPA received adverse comments on the
proposed rule. In today's action, EPA is responding to the adverse
comments received.
III. Response to Comments
Comment 1: The commenter writes that the SIP revision is
unapprovable because Jefferson County is violating both the 8-hour
ozone and fine particulate matter (PM2.5) NAAQS, to which
the VET Program contributed emissions reductions. A plain reading of
Section 110(l) of the Clean Air Act (CAA) requires that the Louisville
Metro Air Pollution Control District (LMAPCD) first determine whether
the I/M program will be necessary for achievement of the 8-hour ozone
(and PM2.5) standards prior to approval of removal of the
measure from the current SIP. Another commenter also questions what is
the justification for terminating the VET Program.
Response 1: Jefferson County, Kentucky is designated nonattainment
for the 8-hour ozone and PM2.5 NAAQS. Control strategy SIP
revisions showing how the area will attain these NAAQS are due June 15,
2007, for the 8-hour ozone standard and April 5, 2008, for the
PM2.5 standard, unless the area attains the standards prior
to these due dates. These control strategy SIPs will identify the
control measures that will be used to help the area attain the NAAQS.
The control measures will be selected by the Commonwealth of Kentucky
after public notice and comment.
In a May 11, 2004, letter from EPA to Louisville's Assistant County
Attorney, EPA provided its interpretation of section 110(l) of the
Clean Air Act as guidance in relation to an area such as Jefferson
County that does not yet have an attainment demonstration for the 8-
hour ozone nor for the PM2.5 NAAQS. Prior to the time when
the control strategy SIP revisions are due, to demonstrate no
interference with any applicable NAAQS or requirement of the Clean Air
Act under section 110(l), EPA has interpreted this section such that
States can substitute equivalent (or greater) emissions reductions to
compensate for the control measure being moved from the regulatory
portion of the SIP to the contingency provisions. As long as actual
emissions in the air are not increased, EPA believes that equivalent
(or greater) emissions reductions will be acceptable to demonstrate
non-interference. EPA does not believe that areas must wait to produce
a complete attainment demonstration to make any revisions to the SIP,
provided the status quo air quality is preserved. EPA believes this
will not interfere with an area's ability to develop a timely
attainment demonstration. As an acceptable means to demonstrate no
interference in order
[[Page 28431]]
to satisfy section 110(l) of the CAA, the submittal provides for
equivalent emissions reductions from the Kosmos Cement Company to
replace the NOX and volatile organic compound (VOC)
emissions reductions previously gained from the VET Program to ensure
actual emissions in the air are not increased pending development of a
complete attainment demonstration for the new 8-hour ozone and
PM2.5 standards. Even if the area ultimately determines that
an I/M program should again be instituted as part of those future
attainment demonstrations, since air quality has not been adversely
affected in the interim, EPA believes that 110(l) will be satisfied.
As for the 1-hour ozone and carbon monoxide (CO) NAAQS, Kentucky
has demonstrated through air quality analyses that the VET Program is
not needed for the Kentucky portion of the Louisville area in order to
continue to maintain those NAAQS. VOC and NOX emissions
remain below 1999 attainment year levels to support movement of the
program to a contingency measure in the Kentucky portion of the
Louisville 1-Hour Ozone Maintenance Plan. Finally, since mobile source
winter CO emission levels continuously decline from 1999 through 2020,
EPA concludes that no potential interference with the CO standard will
result from this action. (For the complete analysis, see pages 56-57 of
proposed rule, 70 FR 53, published January 3, 2005.)
The commenter also questions whether a demonstration of non-
interference is needed for air toxics, also known as hazardous air
pollutants (HAPs). An I/M program is not designed to reduce HAPs,
however, the program does reduce emissions of VOCs, several of which
are HAPs. Since there are no ambient air quality standards established
for HAPs, the area must demonstrate that the SIP revision will not
interfere with any applicable air toxics rules. There are no air toxics
rules that apply to motor vehicles, thus removal of the VET Program
does not interfere with any Federal standards that might apply.
Furthermore, a change to requirements that apply to mobile sources in
the area does not interfere with implementation of Federal air toxics
rules i.e., maximum achievable control technology (MACT) standards,
that apply to stationary sources in the area. The EPA thus concludes
that non-interference relative to air toxics has been demonstrated.
Comment 2: The commenter states that, ``EPA has issued policy
interpretations that sweep the non-interference obligation under the
regulatory rug and which clearly undercut 110(l) through a substantive
agency interpretation, not properly promulgated as a regulation under 5
U.S.C. 553 despite an obvious and dramatic effect of altering the
applicability of law, and which proffers an interpretation of 110(l)
that flunks the first step of Chevron.'' The commenter believes the
``strict'' interpretation of Section 110(l) which EPA describes in its
May 11, 2004, letter to the District is the only interpretation
consistent with the plain language and intent of the Act, and that
removal of an approved and implemented control measure controlling both
precursors of ozone and particulates, at a time when it is not known
what additional reductions will be needed to attain the 8-hour ozone
and fine particulates standard in the Jefferson County airshed, is of
questionable legality. Until EPA completes the guidance on what
constitutes ``interference,'' EPA defense of an ad-hoc finding of
``non-interference'' appears unsubstantiated.
Response 2: EPA is authorized by Congress to issue interpretations
of ambiguous provisions of the Clean Air Act without promulgating a
regulation. Through the January 3, 2005, proposed rule (70 FR 53), EPA
sought public comment on its current interpretation of 110(l) of the
Act. EPA has evaluated the comments and believes its interpretation to
be reasonable. EPA is taking final action on this interpretation in
this rulemaking action, which has undergone appropriate notice-and-
comment procedures, and EPA is here responding to all comments
submitted on this issue. EPA concludes that the language in section
110(l) is not clear on its face with respect to the demonstrations
necessary to show non-interference in the absence of an approved
attainment demonstration. Rather, EPA believes section 110(l) is
ambiguous with respect to the appropriate test for these areas, and
consequently EPA has the discretion to interpret section 110(l) for
these areas consistent with the Act as a whole. EPA believes that so
long as substitute reductions are achieved such that ambient air
quality levels in the area are not adversely affected in the interim,
SIP revisions will not interfere with an area's obligations to develop
timely demonstrations of attainment and reasonable further progress.
Consequently, since substitute reductions have been submitted in this
case, EPA concludes that the Agency is authorized to approve this SIP
revision consistent with section 110(l).
Comment 3: The commenter states that the NOX reductions
achieved by Kosmos occurred prior to the 2003 ozone season, yet the
community had numerous incidents of exceedances of ozone standards even
with the Kosmos emissions reductions and the VET Program. Substituting
already-achieved emissions reductions that were insufficient to prevent
violations during the previous ozone season do not provide any new
reductions to offset those lost. The District must provide new actual
reductions, not ones that have already been achieved.
Response 3: EPA clarifies that the Louisville area has had no 1-
hour ozone NAAQS exceedances since the area was redesignated to
attainment for that standard in a final action published October 23,
2001, 66 FR 53665. Regarding exceedances of the 8-hour ozone NAAQS
during the 2003 ozone season, Kentucky has provided substitute,
equivalent emissions reductions that meet the criteria set forth in
EPA's proposed rulemaking published January 3, 2005 (70 FR 53) to
demonstrate no interference with the 8-hour ozone and PM2.5
NAAQS. (See Response 1.) EPA believes that this equivalent
substitution of emissions to ensure no net emissions change into the
air is allowable regardless of whether the area is meeting the 8-hour
ozone or PM2.5 NAAQS. Enacting the equivalent reductions at
Kosmos prior to (rather than after) the cessation of the VET Program
provides additional assurance that there is no net emissions increase
to the air for any period of time. The control strategy SIP for the
area will ultimately demonstrate how the Louisville area will meet the
8-hour ozone and PM2.5 NAAQS as noted in Response
1.
The NOX emissions reductions at Kosmos, as reflected in
the emission rate reduction to 4.755 pptcp of NOX, are new
or ``surplus'' for two reasons. The reduction is not from a Federal
Control Measure that would occur without any state or local action and
the emission rate reduction is below what is already required in the
Jefferson County portion of the Kentucky SIP. (For additional details,
refer to the proposed rulemaking published January 3, 2005, at 70 FR
53.) Although the NOX emissions reductions at Kosmos
occurred eight months prior to the closing of the VET Program, these
reductions are considered new reductions based on EPA's policy of
supporting early implementation of control measures to achieve early
emissions reductions. This policy is commonly applied, for example, to
enact contingency measures prior to the occurrence of a NAAQS violation
in an area. This policy of allowing early
[[Page 28432]]
emissions reductions was upheld in the September 8, 2004, 5th Circuit
decision (Louisiana Environmental Action Network v. EPA, 382 F.3d 575
(5th Cir. 2004)).
Comment 4: Is there a guidance document EPA uses to determine
whether proposed substitutions of emissions reductions are acceptable?
Response 4: Yes, the Agency is using several guidance documents to
assess the legality of accepting compensating emissions reductions.
These guidance documents are listed below, and further described in the
January 3, 2005, proposed rule (70 FR 53) with information on how to
obtain copies.
The EPA guidance memorandum from John Calcagni, Director, Air
Quality Management Division, to the Air Directors in EPA Regions 1-10,
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' September 4, 1992, is currently being used. On pages 10
and 13, the guidance allows areas redesignated to attainment for the
NAAQS to move control measures from the regulatory portion of the SIP
to the contingency plan if they are not needed to maintain the NAAQS
and if compensating equivalent emissions reductions are provided. The
guidance notes that a demonstration that measures are equivalent would
have to include appropriate modeling or an adequate justification. This
1992 memorandum pertains to the NAAQS in existence at the time, which
include the 1-hour ozone and CO NAAQS. EPA is currently drafting
guidance that specifically addresses section 110(l).
Guidance EPA is using as precedence to determine the acceptability
of substituting NOX for VOC emissions reductions in the
Louisville case is the August 5, 1994, EPA memorandum, ``Clarification
of Policy for Nitrogen Oxides (NOX) Substitution,'' from
John Seitz, Director, Office of Air Quality Planning and Standards.
This memorandum pertains to EPA's ``NOX Substitution
Guidance'' (December 1993). The guidance acknowledges that controlling
only VOCs may not be the most effective approach in all areas for
attaining the ozone standard and allows for substitution of
NOX emissions reductions for VOC emissions reductions as
appropriate, contingent upon approval by EPA.
Two items of correspondence from EPA that serve as guidance are
also described in the January 3, 2005, proposed rule (70 FR 53). The
Agency is using the May 12, 2004, EPA Memorandum from Tom Helms, Group
Leader, Ozone Policy and Strategies Group, Office of Air Quality
Planning and Standards, and Leila H. Cook, Group Leader, State Measures
and Conformity Group, Office of Transportation and Air Quality, to the
Air Program Managers, the subject of which is ``1-Hour Ozone
Maintenance Plans Containing Basic I/M Programs.'' The May 12, 2004,
memorandum addresses the application of 8-hour ozone anti-backsliding
provisions to basic I/M programs in 1-hour ozone maintenance areas. In
addition, EPA is using a May 11, 2004, letter from the Agency to
Louisville's Assistant County Attorney to provide the Agency's current
interpretation of section 110(l) of the Clean Air Act as guidance in
relation to an area such as Jefferson County that does not yet have an
attainment demonstration for the new 8-hour ozone and PM2.5
NAAQS.
Comment 5: The commenter states that it has not been demonstrated,
through appropriate modeling and analysis, that reductions of
NOX from tall stack emissions controls would yield the same
or better air quality benefit in ozone formation reduction as from
ground-level exhaust emissions of both VOCs and NOX from
continued implementation of the I/M program.
Response 5: The May 26, 2004, supplement to the September 22, 2003,
SIP submittal provides information to address the equivalency of
NOX emissions reductions from Kosmos Cement Company, a point
source, to replace low-level, area reductions of NOX and VOC
gained by the VET Program. This information is discussed under the
third response of the LMAPCD Comment and Response document. In summary,
the LMAPCD document provides existing modeling for the area that shows
NOX emissions reductions are beneficial to the Louisville
area and that NOX emissions reduction scenarios in all cases
in the Louisville area resulted in a greater reduction of ozone
concentrations than the VOC reduction scenarios. Modeling to
demonstrate the air quality impacts from this specific scenario was not
developed. Modeling was not needed to support this equivalency
demonstration because it is unlikely that the small emission changes
involved in the removal of the VET Program and additional reductions
from the Kosmos cement kiln would be noticeable in the modeling or have
any noticeable effects on ozone formation in the modeling. The
photochemical models are more suited to assessing the aggregate effects
of the many control measures used in an attainment strategy for an
urban area. However, sensitivity modeling of emissions reductions on
source categories can be used to provide directional information on the
effectiveness of precursor reductions. Such information was provided
through the sensitivity modeling developed for the 1-hour ozone NAAQS
for the Louisville area. This modeling demonstrates that areawide ozone
coverages for concentrations greater than the ozone standard are more
effectively reduced with NOX emissions reductions than with
VOC reductions. The Louisville modeling does show that VOC emissions
reductions are beneficial, but on a more localized level, whereas
NOX emissions reductions are beneficial over a larger area.
In conclusion, EPA finds the analysis detailed in the Comment and
Response document adequate to demonstrate that point source
NOX reductions will yield the same or better air quality
benefit in reducing ozone formation as low-level, areawide emissions
reductions of VOC and NOX.
Comment 6: The commenter states that the emissions reductions at
Kosmos are clearly not contemporaneous since they occurred in March
2003, nearly two years ago. The use of the November 2003 date to
measure the contemporaneousness of the emissions reductions would
reward Louisville for having terminated the program unlawfully, and is
inappropriate given that the termination of the program has not yet
been lawfully approved and it remains a component of the SIP. The time
frame in which the reductions must be viewed as ``contemporaneous'' for
purposes of substituting other measures in a maintenance plan, must be
the date of lawful cessation of the I/M Program on approval by EPA.
Response 6: While ``contemporaneous'' is not explicitly defined in
the Clean Air Act, EPA believes a reasonable interpretation is to enact
the compensating, equivalent emissions reductions within a maximum of
one year (prior to or following) the cessation of the substituted
control measure. The actual dates of occurrence of the start and end of
substituted control measures, rather than the effective date of EPA
action on a SIP revision, are used to ensure that the status quo level
of emissions in the air is maintained. EPA acknowledges that Louisville
inappropriately terminated the program before obtaining EPA approval of
a SIP revision, however EPA does not believe this is relevant to
determining the contemporaneousness of substitute reductions. Since the
concept of contemporaneous reductions is to address ambient air quality
levels, EPA believes it should be measured with respect to actual
program implementation. Kosmos' March 2003 emissions reductions
occurred well
[[Page 28433]]
within a year of the end of the actual termination of the VET Program,
which occurred as of November 1, 2003. EPA agrees that the VET Program
remains an enforceable component of the SIP, and will not become a
contingency measure until the effective date of this final action. (See
also Response 7 regarding legal consequences of terminating
the VET Program without EPA approval.)
Comment 7: Unless the EPA approves an amendment to the Kentucky SIP
to remove the VET Program, the approved SIP, including the VET Program,
must continue to be maintained and enforced as a matter of federal law.
The commenter expresses that the illegal termination of the VET Program
has gone without sanction by the EPA.
Response 7: EPA exercises its discretion whether to issue a finding
of failure to implement the SIP for the discontinuation of the VET
Program. EPA recognized that the LMAPCD was actively working with the
Agency to develop an approvable SIP revision to provide compensating
emissions reductions as expeditiously as possible. EPA also notes that
in a Memorandum Opinion dated January 29, 2004, the U.S. District Court
concluded that the District violated the Clean Air Act by terminating
the VET Program, an approved element of the Kentucky SIP, without EPA's
prior approval. (Memorandum Opinion, P.20, Case Number 3:03CV-712-H) In
a court order issued June 10, 2004, the Court ordered the LMAPCD, the
agency responsible for implementation of the Jefferson County, Kentucky
portion of the state SIP, to pay a fine of $100,000 in connection with
this termination of the program. The Court subsequently distributed
these funds to the Kentucky Resources Council for use in the Council's
environmental projects as specified by the Court. The Court did not
order the District to restart the VET Program due to the status of the
pending SIP revision at that time and the likely timing and potential
substance of an EPA response. (Memorandum and Order, Case Number
3:03CV-712-H, June 10, 2004) Upon the effective date of this final
action, the issue of not implementing and enforcing a control measure
in the SIP is resolved.
Comment 8: The commenter writes that the Kosmos reductions are not
enforceable and equivalent to the lost VET Program reductions, because
the new Kosmos proposed limits are a rolling 30-day average rather than
a maximum instantaneous cap. The commenter notes there may be times
(including days where ozone levels are otherwise elevated) in which the
emissions will exceed the proposed average and will not offset what
would have been captured on a continuous basis by the operation of the
VET Program. The commenter also expressed that the modifications
resulting in NOX reductions were undertaken to avoid
NOX spikes that were in excess of permit limits and that as
such, those reductions would not appear to be surplus since they were
undertaken to achieve compliance with permit requirements that would
have occurred regardless of the termination of the VET Program.
Response 8: The May 3, 2004, amended Board Order for the Kosmos
cement kiln requires that NOX emissions (expressed as NO2)
from the cement kiln shall not exceed 4.755 pptcp by the kiln, based
upon a rolling 30-day average. In this final action, EPA is approving
the proposed revisions in the May 3, 2004, Board Order, including this
lowered NOX emission rate, into the Kentucky SIP. To comply
with this lower emission rate and the SIP, the average of daily
NOX emissions from Kosmos' cement kiln over 30 consecutive
days must be below the rate approved into the SIP. Any daily
fluctuations above the emission rate are compliant with the SIP as long
as this 30-day rolling average condition is met. For this reason, the
emissions reductions, as reflected in the lowered NOX
emission rate for Kosmos, are surplus and are not a violation of SIP
requirements.
Through this final action, the 30-day rolling average condition for
Kosmos becomes federally enforceable. Kosmos is required to maintain
and operate a continuous emission monitoring system (CEMS) to measure
daily NOX emissions into the atmosphere from the cement kiln
(Appendix A of Kosmos' NOX Reasonably Available Control
Technology (RACT) Plan). This requirement to record and submit CEMS
data allows for monitoring of the lowered NOX emission rate
at Kosmos on a daily basis which will assure compliance with the new
limit on a 30 day basis. The VET Program was designed with the
presumption that the vehicle would maintain compliance for the year.
Regarding concerns expressed on high ozone days, an emission rate
based upon a rolling 30-day average is set to accommodate normal
fluctuations in operating conditions while remaining protective of
public health. EPA notes that other programs use a 30-day rolling
average and have been effective in controlling emissions, including
NOX RACT (see page 55625 of 57 FR 55620, November 25, 1992)
and New Source Performance Standards for boilers (see page 49444 of 63
FR 49442, September 16, 1998). Furthermore, EPA believes even longer
term compliance averaging periods have demonstrated their
effectiveness, e.g., EPA's NOX SIP Call trading program's
ozone season averaging time period (``NOX Budget Trading
Program,'' August 2004, EPA-430-R-04-010). Should the rolling 30-day
average NOX emission rate ever exceed the established
NOX emissions standard, Section II.A.4. of Appendix A of
Kosmos' NOX RACT Plan contains specific reporting and
recordkeeping requirements for Kosmos to submit excess emissions
reports that document the amount, dates, and timeframes of the excess
emissions and corrective actions taken or preventive measures adopted.
Comment 9: The commenter writes that the emissions reductions at
Kosmos from the installation of controls preclude emission at levels
contained in the former permit even under full operating conditions,
and that the elimination of the increment of allowable emissions from
the former permit limits to the actual potential emissions is a
``phantom paper reduction'' rather than a real emissions reduction.
Response 9: EPA first clarifies that Kosmos made changes to its
operating procedures, not installed controls, to achieve the equivalent
emissions reductions achieved in March 2003. As described in LMAPCD's
Comment and Response Document on page 5, by requiring all kiln
operators to operate the kiln in the same manner, the cement kiln ran
more efficiently and thus used less fuel and emitted less pollutants.
The resulting NOX emissions reductions at Kosmos were
verified using CEMS, which is a monitoring system for continuously
measuring and recording the emissions of a pollutant. The Agency's
evaluation of the SIP submittal supports that Kosmos will have achieved
the predicted 8,672 pounds per summer day (ppsd) of NOX
emissions reductions in 2004. It is EPA's practice to approve control
measures into the SIP using projected emissions reduction data as long
as the baseline data and emission projection methodology are based on
sound science. In the proposed approval, EPA's analysis is based on the
change in the allowable emission rate (6.6 to 4.755 pptcp
NOX) at a constant production rate (4700 tons of clinker/
day). The procedure EPA used in the proposal assumes: (1) Kosmos
emitted at its maximum allowable rate of 6.6 pptcp NOX, on
average in 2002, under the previous Board Order approved into the
Kentucky SIP and (2) Kosmos will emit no more than 4.755 pptcp
NOX, on
[[Page 28434]]
average, under the new Board Order dated May 3, 2004 (see 70 FR 58,
January 3, 2005). Kosmos was emitting at 2.1-4.1 pptcp NOX
in 2003 under the 6.6 limit due to the operational changes made in
March 2003. To prevent Kosmos from changing the cement kiln's operation
and increasing emissions in 2004 or later up to 6.6, a revised Board
Order with the lower emission rate of 4.755 pptcp NOX was
adopted by the Board on May 3, 2004, and will become part of the
federally enforceable Kentucky SIP as of the effective date of this
final action. Kosmos' cement kiln cannot emit up to 6.6 pptcp
NOX without violating the new SIP limit for Kosmos of 4.755
pptcp NOX, and therefore, the proposed calculation procedure
remains valid.
Comment 10: The commenter expressed that eliminating the VET
Program may increase cost of a program restart should the area's
control strategy be required to use an I/M program if Louisville is
classified as a moderate 8-hour ozone nonattainment area.
Response 10: EPA acknowledges that there would be additional costs
to restart the VET Program since it has been terminated. The Louisville
area is designated nonattainment under subpart 1, ``Nonattainment Areas
in General,'' of Title I Part D of the Clean Air Act for the 8-hour
ozone NAAQS. An I/M program is not required for these subpart 1
nonattainment areas. The statutory authority to implement an I/M
program remains intact in Kentucky Revised Statute (KRS) 77.320,
``Elimination of vehicle emissions testing program in county containing
consolidated local government--Determination of need for program,'' and
in KRS 77.180, ``Orders, rules and regulations.'' KRS 77.180 is the
cited statute in the VET Program regulations now located in the
contingency portion of the Louisville 1-Hour Ozone Maintenance Plan as
of the effective date of this action. Thus, should the area become
classified moderate and need to implement I/M, it would already have
the statutory authority to do so. (To access KRS 77.320 and KRS 77.180
within Chapter 77, ``Air Pollution Control,'' access the following Web
site: http://lrc.ky.gov/KRS/077-00/CHAPTER.HTM.)
Comment 11: The commenter states that the law that repealed the VET
Program, KRS 77.320, should be repealed. The commenter suggests that
the VET Program was the only effective means of air management in the
metropolitan area and should be reinstated.
Response 11: The LMAPCD adopted several regulatory programs that
helped the area to attain the 1-hour ozone NAAQS. The Louisville area
has had no 1-hour ozone NAAQS exceedances since the area was
redesignated to attainment in a final action published October 23, 2001
(66 FR 53665). Louisville was able to demonstrate continued maintenance
of the 1-hour ozone NAAQS without the I/M program. In addition, the
provision of substitute reductions from the Kosmos cement kiln will
prevent increases in ambient air levels pending development of 8-hour
and PM2.5 attainment demonstrations. The 8-hour ozone and
PM2.5 control strategy SIP revisions for the area due in
2007 and 2008, respectively, will identify control strategies to help
the area meet these NAAQS as expeditiously as practicable. These SIP
revisions will include a demonstration that the selected control
measures will timely achieve the relevant NAAQS.
Comment 12: The commenter states that in addition to businesses,
each individual who drives should be responsible for cleaner, healthier
air. The commenter suggests that the VET Program could be required only
every other year and exclude cars less than five years old to reduce
the burden.
Response 12: Under Jefferson County's present 8-hour ozone and
PM2.5 nonattainment classifications, and 1-hour ozone
maintenance status, Kentucky has discretion which control measures to
apply to help the County attain and maintain these NAAQS. So long as
the area meets all applicable CAA requirements, EPA cannot dictate that
each individual residing in the area must personally contribute to
required emissions reductions.
Comment 13: Mobile source emissions comprise a significant
component of the emissions profile for the county, and the VET program
has been responsible for moderating the effects of the increase in
vehicle miles traveled in this region, and in reducing the contribution
of ozone precursors from the mobile sector. For this reason, the
proposed repeal of the VET Program is troubling.
Response 13: The Kentucky portion of the Louisville 1-Hour Ozone
Maintenance Plan provides emissions data and emissions projections
covering the year 2005 for this maintenance area. The Kentucky portion
of the Louisville 1-Hour Ozone Maintenance Area is comprised of
Jefferson County, and portions of Bullitt and Oldham Counties in
Kentucky. EPA acknowledges that projected 2005 emissions from mobile
sources contribute almost one-third of the VOC emissions and nearly
one-half of the NOX emissions in the Kentucky portion of the
Louisville area. The equivalent emissions reductions from Kosmos that
are replacing those previously gained from the VET Program, in addition
to meeting all other applicable requirements for the area, help to
ensure that the current air quality is maintained. The 8-hour ozone and
PM2.5 attainment demonstrations due in 2007 and 2008,
respectively, will address, as appropriate, any needed mobile source
controls for the designated nonattainment areas under these standards.
See also Response 1.
Comment 14: When will the public review and formal comment period
begin on the January 3, 2005, proposed rule (70 FR 53)?
Response 14: The public comment period on the proposed rulemaking
was from January 3, 2005 to February 2, 2005, as stated in the proposed
rulemaking published January 3, 2005, at 70 FR 53.
Comment 15: The commenter notes that the problems that come with
global warming and pollution are not going to go away anytime soon, and
that these issues will only get worse until action is taken.
Response 15: This comment is not relevant nor specific to issues
contained in the January 3, 2005, proposed rule (70 FR 53).
Comment 16: The commenter notes that the United States of America
needs to do much more to clean up the air and atmosphere to protect the
ozone layer from getting worse. The commenter also states that the
country's per capita output of air pollutants and many other
environmentally damaging pollutants is ``shamefully high.''
Response 16: This comment is not relevant nor specific to issues
contained in the January 3, 2005, proposed rule (70 FR 53).
Comment 17: The commenter states that with respect to Louisville
Gas & Electric (LG&E), it is inappropriate to claim credit for
reductions achieved by the company as a result of its compliance
strategy with the NOX SIP call, since those reductions were
made in response to existing legal obligation and would have been
achieved irrespective of any District action to execute an
``Agreement.'' The commenter also notes that substituting LG&E
emissions of NOX for lost VOC and NOX emissions
from motor vehicles is not equivalent because LG&E has presented
modeling in the past demonstrating that NOX emissions from
the LG&E stacks did not contribute appreciably to the local ozone
problem in the Louisville area.
Response 17: The comments received regarding emissions reductions
from LG&E are not relevant nor specific to
[[Page 28435]]
issues contained in the January 3, 2005, proposed rule (70 FR 53).
IV. Final Action
EPA is approving a revision to the Jefferson County, Kentucky
portion of the Kentucky SIP which moves Regulations 8.01, 8.02, and
8.03 from the regulatory portion of the Jefferson County part of the
Kentucky SIP to the contingency measures section of the Kentucky
portion of the Louisville 1-Hour Ozone Maintenance Plan. EPA is also
approving a source-specific SIP revision amending the NOX
emission rate for Kosmos Cement Company's cement kiln.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 18, 2005. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: May 11, 2005.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
0
Part 52 of chapter I, title 40, Code of Federal Regulations, is amended
as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart S--Kentucky
0
2. Section 52.920 is amended as follows:
0
a. in paragraph (c) by removing from Table 2, Regulation 8.01 titled,
``Mobile Source Emissions Control Requirements,'' Regulation 8.02
titled, ``Vehicle Emissions Testing Procedure,'' and Regulation 8.03
titled, ``Commuter Vehicle Testing Requirements,''
0
b. in paragraph (d) by revising the entry for ``Board Order Kosmos
Cement Company,'' and
0
c. in paragraph (e) by revising the entry for ``Louisville 1-hour Ozone
Maintenance Plan'' to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(d) * * *
[[Page 28436]]
EPA-Approved Kentucky Source--Specific Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
State effective
Name of source Permit number date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Board Order Kosmos Cement Company.. NOX RACT Plan 05/03/04......................... 05/03/04 05/18/05 [Insert ......................
first page number
of publication]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
(e) * * *
EPA-Approved Kentucky Non-regulatory Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
State submittal
Name of regulatory SIP provision Applicable geographic or nonattainment area date/effective date EPA approval date Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Louisville 1-Hour Ozone Maintenance Jefferson County and portions of Bullitt and 11/1/03 05/18/05 [Insert ......................
Plan. Oldham Counties. first page number
of publication]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 05-9905 Filed 5-17-05; 8:45 am]
BILLING CODE 6560-50-P