# Control Strategy: Ozone (OINF3); Kentucky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A95-11504 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 10, 1995 - **Citation:** 60 FR 24813 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [KY-84-6856; FRL-5205-2] Control Strategy: Ozone (O3); Kentucky AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: EPA is proposing to approve an exemption from the oxides of nitrogen (NOX) reasonably available control technology (RACT) and the general conformity requirements of the Clean Air Act as amended in 1990 (CAA) for the Kentucky portion of the Cincinnati moderate ozone (O3) nonattainment area. The request for a NOX RACT exemption was submitted on November 11, 1994, by the Commonwealth of Kentucky through the Natural Resources and Environmental Protection Cabinet (Cabinet). The NOX RACT exemption request is based upon the most recent [[Page 24814]] three years of monitoring data, which demonstrate that additional reductions of NOX would not contribute to attainment of the National Ambient Air Quality Standards (NAAQS). DATES: Comments on this proposed action must be received in writing by June 9, 1995. ADDRESSES: Written comments should be addressed to: Scott Southwick; Stationary Source Planning Unit, Regulatory Planning and Development Section; Air Programs Branch; Air, Pesticides, and Toxics Management Division; U.S. Environmental Protection Agency, Region 4; 345 Courtland Street NE., Atlanta, Georgia 30365. A copy of the exemption request is available for inspection at the following locations (it is recommended that you contact Scott Southwick at (404) 347-3555 extension 4207 before visiting the Region 4 office). United States Environmental Protection Agency; Air, Pesticides, and Toxics Management Division, Air Programs Branch, Regulatory Planning and Development Section; Stationary Source Planning Unit, 345 Courtland Street NE., Atlanta, Georgia 30365. Department for Environmental Protection Natural Resources and Environmental Protection Cabinet, 803 Schenkel Lane Frankfort, Kentucky 40601. FOR FURTHER INFORMATION CONTACT: Scott Southwick, Stationary Source Planning Unit, Regulatory Planning and Development Section, Air Programs Branch; Air Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365. Reference file KY-84-6856. (404) 347-3555 ext. 4207. SUPPLEMENTARY INFORMATION: The air quality planning requirements for the reduction of NOX emissions are set out in section 182(f) of the CAA, which requires states with nonattainment areas of moderate and above to require the same provisions for major stationary sources of NOX as apply to major stationary sources of volatile organic compounds (VOCs). One of the requirements of major sources of VOCs is RACT. Therefore, per section 182 of the CAA, RACT is also a requirement for major sources of NOX. However, under section 182(f)(1)(A) of the CAA, an exemption from NOX requirements may be granted for nonattainment areas outside an ozone transport region if additional reductions of NOX would not contribute to attainment. The NOX RACT exemption request is based upon the most recent three years of monitoring data, which demonstrate that additional reductions of NOX would not contribute to attainment of the National Ambient Air Quality Standards (NAAQS). Additionally, if EPA grants such an exemption, NOX general conformity will not apply as stated in EPA's conformity rules (58 FR 63214, and 59 FR 31238). The criteria established for the evaluation of an NOX RACT exemption request from the section 182(f) requirements are set forth in an EPA memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, dated May 27, 1994, entitled, ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria,'' an EPA memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, dated December 16, 1993, entitled, ``Guideline for Determining the Applicability of Nitrogen Oxide Requirements Under Section 182(f),'' dated December 16, 1993; and a EPA memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, dated February 8, 1995, entitled, ``Section 182(f) Nitrogen Oxides (NOX) Exemptions--Revised Process and Criteria.'' The February 8, 1995, memorandum referenced above decouples the section 182(f) exemptions from NOX transport issues. In an area that did not implement the section 182(f) NOX requirements, but did attain the O3 standard as demonstrated by ambient air monitoring data (consistent with 40 CFR Part 58 and recorded in the EPA's Aerometric Information Retrieval system (AIRS)), it is clear that the additional NOX reductions required by section 182(f) would not contribute to attainment of the NAAQS in that area. On November 11, 1994, the Commonwealth of Kentucky submitted to EPA Region 4 a request to redesignate the Kentucky portion of the Cincinnati moderate O3 nonattainment area to attainment. The redesignation request is currently under review and will be addressed in a separate rulemaking. On the same date the Commonwealth requested that the Kentucky portion of the Cincinnati area be exempt from the NOX RACT requirement in section 182(f) of the CAA. The exemption request is based upon ambient air monitoring data from 1992, 1993, and 1994. There are eleven monitors measuring O3 concentrations in the Cincinnati nonattainment area. EPA has reviewed the ambient air monitoring data for the eleven monitors (consistent with the requirements contained in 40 CFR Part 58 and recorded in AIRS) submitted by the Commonwealth of Kentucky in support of the exemption request. EPA has found that one monitor in Warren County has had two exceedances in 1994. However, EPA has determined that all monitors in the nonattainment area have an expected exceedance rate of less than 1.1 per year. Therefore, this area is meeting the O3 NAAQS standard in the entire Cincinnati area for the relevant three year period. Because the Cincinnati area is meeting the O3 NAAQS, this exemption request for the area meets the applicable requirements contained in the EPA policy and guidance documents referenced above. On January 17, 1995, EPA proposed approval of Ohio's request for exemption from the NOX requirements for the Ohio portion of this nonattainment area (60 FR 3361). Upon the redesignation of this area to attainment for O3, NOX RACT would become a contingency measure within the approved maintenance plan for the area. While the area is still designated nonattainment, the continuation of the section 182(f) exemption granted herein is contingent upon continued monitoring and continued maintenance of the O3 NAAQS in the entire Cincinnati nonattainment area. If there is a violation of the O3 NAAQS in any portion of the Cincinnati nonattainment area, the exemption will no longer be applicable as of the date of any such determination. Should this occur, EPA will provide notice in the Federal Register. A determination that the NOX exemption no longer applies would mean that NOX RACT and NOX general conformity requirements would immediately be applicable to the affected area. EPA believes some reasonable period of notice is necessary to provide major stationary sources subject to the RACT requirements time to purchase, install, and operate any required controls. Accordingly, the Commonwealth may provide sources a reasonable time period to meet the RACT emission limits after the EPA determination that NOX RACT requirements are necessary. EPA expects the time period to be as expeditious as practicable, but in no case longer than 24 months. Proposed Action EPA is proposing approval of Kentucky's request to exempt the Kentucky portion of the Cincinnati moderate O3 nonattainment area from the section 182(f) NOX RACT requirement. In addition, EPA is proposing to exempt Kentucky from NOX general conformity requirements. This proposed approval is based upon the evidence provided by Kentucky [[Page 24815]] showing compliance with the requirements outlined in the CAA and in applicable EPA guidance. If a violation of the O3 NAAQS occurs in any portion of the Cincinnati area while the area is designated nonattainment, the exemption from the NOX RACT and NOX general conformity requirements of section 182(f) of the CAA in the applicable area shall no longer apply. This action is not a SIP revision and is not subject to the requirements of section 110 of the CAA. The authority to approve or disapprove exemptions from NOX requirements under section 182 of the CAA was delegated to the Regional Administrator from the Administrator in a memo dated July 6, 1994, from Jonathan Cannon, Assistant Administrator, to the Administrator, titled, ``Proposed Delegation of Authority: `Exemptions from Nitrogen Oxide Requirements Under Clean Air Act section 182(f) and Related Provisions of the Transportation and General Conformity Rules' Decision Memorandum.'' Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. This rule approves an exemption from a CAA requirement. Therefore, I certify that it does not have a significant impact on any small entities affected. Unfunded Mandates Under Sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA must undertake various actions in association with proposed or final rules that include a Federal mandate that may result in estimated costs of $100 million or more to the private sector, or to State, local, or tribal governments in the aggregate. Through submission of this state implementation plan or plan revision, the State and any affected local or tribal governments have elected to adopt the program provided for under Section 182 of the Clean Air Act. These rules may bind State, local and tribal governments to perform certain actions and also require the private sector to perform certain duties. To the extent that the rules being proposed for approval by this action would impose no new requirements; such sources are already subject to these regulations under State law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. EPA has also determined that this proposed action does not include a mandate that may result in estimated costs of $100 million or more to State, local, or tribal governments in the aggregate or to the private sector. List of Subjects in 40 CFR Part 52 Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: April 24, 1995. Patrick M. Tobin, Acting Regional Administrator. [FR Doc. 95-11504 Filed 5-9-95; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-11504. Public record. Not legal advice.