Clean Air Act Reclassification or Extension of Attainment Date, Kentucky and Indiana; Louisville Nonattainment Area; Ozone

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[KY-9917; IN92-1; FRL-6346-3]

Clean Air Act Reclassification or Extension of Attainment Date,

Kentucky and Indiana; Louisville Nonattainment Area; Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA proposes to find that the Louisville moderate ozone

nonattainment area (Louisville area) has failed to attain the one-hour

ozone National Ambient Air Quality Standard (NAAQS) by its applicable

attainment date. If EPA takes final action on this finding, the

Louisville area would be reclassified as a serious nonattainment area.

The Louisville area consists of Jefferson County and portions of

Bullitt and Oldham Counties in Kentucky, and Clark and Floyd Counties

in Indiana.

However, EPA is also proposing to extend the Louisville area's

attainment date, if Kentucky and Indiana meet the criteria of EPA's

July 16, 1998 attainment date extension policy. The extension policy

provides that a nonattainment area, such as the Louisville area, may be

eligible for an attainment date extension if it meets certain

conditions. The extension policy applies where pollution from upwind

areas interferes with the ability of a downwind area to demonstrate

attainment with the one-hour ozone standard by the dates prescribed in

the CAA. Kentucky and Indiana are working together to comply with the

conditions for receiving an extension. If Kentucky and Indiana make

submittals in response to the extension policy, EPA will address the

adequacy of those submittals in a subsequent supplemental proposal. If

the submittals meet the criteria for an extension, the attainment date

for the Louisville area will be extended, and the area will not be

reclassified. EPA does not intend to take final action on

reclassification of the Louisville area prior to allowing the area an

opportunity to qualify for an attainment date extension under the

extension policy.

DATES: Comments must be received on or before June 21, 1999.

ADDRESSES: All comments should be addressed to: Kay Prince, Section

Chief, Regulatory Planning Section, Air Planning Branch, U.S.

Environmental Protection Agency, 61 Forsyth Street, Atlanta, GA, 30303;

or to J. Elmer Bortzer, Chief, Regulation Development Section, Air

Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West

Jackson Boulevard, Chicago, IL 60604.

Copies of the Louisville area monitored air quality data analyses,

guidance on extension of attainment dates in downwind transport areas,

state submittals requesting attainment date extension, and other

relevant documents used in support of this proposal are available at

the following addresses for inspection during normal business hours:

U.S. Environmental Protection Agency, Region 4, Air Planning Branch, 61

Forsyth Street, Atlanta, GA, 30303; U.S. Environmental Protection

Agency, Region 5, Air Programs Branch, Air and Radiation Division, 77

West Jackson Boulevard, Chicago, IL 60604; and the U.S. Environmental

Protection Agency, Air and Radiation Docket and Information Center, Air

Docket (6102), 401 M Street, SW, Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Kay Prince, EPA Region 4, (404) 562-

9026, Karla McCorkle, EPA Region 4, (404) 562-9043, or Jay Bortzer, EPA

Region 5, (312) 886-1430.

SUPPLEMENTARY INFORMATION: The supplemental information is organized in

the following order:

I. What action is being taken in this document?

II. What are the National Ambient Air Quality Standards?

III. What is the NAAQS for ozone?

IV. What is the Louisville ozone nonattainment area?

V. Why is EPA proposing to reclassify the Louisville area?

VI. What is EPA's new policy regarding extension of attainment dates

for downwind transport areas?

VII. Is the Louisville area eligible for an attainment date

extension under the extension policy?

VIII. What progress has been made by Kentucky and Indiana to meet

the extension policy so that an attainment date extension can be

obtained?

IX. What actions have Kentucky and Indiana taken to improve air

quality in the Louisville area?

X. If EPA finalizes its proposed rulemaking reclassifying the

Louisville area, what would be the area's new classification?

XI. If the Louisville area is reclassified to serious, when would it

be required to attain the standard?

XII. When will EPA make a final decision on whether to reclassify or

grant an extension to the Louisville area?

XIII.Administrative Requirements.

I. What Action Is Being Taken in This Document?

EPA is proposing to find that the Louisville area has failed to

attain the one-hour ozone NAAQS by the November 15, 1996, attainment

deadline prescribed under the CAA for moderate ozone nonattainment

areas, or by the November 15, 1997 extended deadline granted to the

Louisville area under Section 181 (a)(5) of the CAA. EPA's authority to

make this finding is discussed under section 181(b)(2) of the CAA.

Section 181(b)(2) explains EPA's responsibility to determine whether an

area has attained the one-hour ozone standard, and its duty to

reclassify the area if necessary. If EPA finalizes this finding, the

Louisville area will be reclassified by operation of law from moderate

nonattainment to serious nonattainment.

Alternatively, EPA is also proposing to extend the Louisville

area's attainment date, provided that Kentucky and Indiana submit State

Implementation Plans (SIPs) pursuant to EPA's July 16, 1998 policy,

entitled ``Guidance on Extension of Air Quality Attainment Dates for

Downwind Transport Areas'' (Richard D. Wilson, Acting Assistant

Administrator for Air and Radiation) by November 15, 1999. If the

States meet the extension policy criteria and EPA proposes to approve

the States' submittals, then a specific extended attainment date will

be proposed in the same notice. EPA will take final action on the new

attainment date at the time it takes final action on the attainment

demonstration and the other necessary submittals. However, if Kentucky

and Indiana fail to meet the criteria of the extension policy, EPA will

finalize this proposed finding of

[[Page 27735]]

failure to attain, and the Louisville area will be reclassified to a

serious ozone nonattainment area.

EPA believes that this approach is reasonable since it (1) ensures

that the local control measures mandated by the CAA for moderate

nonattainment areas, such as Volatile Organic Compound (VOC) and

Nitrogen Oxides (NOx) Reasonably Available Control Technology (RACT),

are achieved; (2) takes into consideration the transport of pollutants

into the Louisville area which impair the ability of the area to meet

the air quality standards; and (3) harmonizes the Louisville area

attainment date with the schedule for emissions reductions in upwind

areas associated with the NOx SIP call.

II. What Are the National Ambient Air Quality Standards?

Since the CAA's inception in 1970, EPA has set NAAQS for six common

air pollutants: carbon monoxide, lead, nitrogen dioxide, ozone,

particulate matter, and sulfur dioxide. For these common air pollutants

there are two types of pollution limits referred to as the primary and

secondary standard. The primary standard is based on health effects;

and the secondary standard is based on environmental effects such as

damage to property, plants, and visibility. The CAA requires these

standards be set at levels that protect public health and welfare with

an adequate margin of safety. These standards allow the American people

to assess whether or not the air quality in their communities is

healthful. Also, the NAAQS present state and local governments with the

air quality levels they must meet to achieve clean air.

III. What Is the NAAQS for Ozone?

The NAAQS for ozone is expressed in two forms which are referred to

as the one-hour and eight-hour standards. Table 1 summarizes the ozone

standards.

Table 1.--Summary of Ozone Standards

----------------------------------------------------------------------------------------------------------------

Value

Standard (parts per Type Method of compliance

million)

----------------------------------------------------------------------------------------------------------------

1-hour.............................. 0.12 Primary and secondary.. Concentration of ozone monitored in

ambient air must not exceed standard

value, on average, more than one day

per year over any 3-year period.

8-hour.............................. 0.08 Primary and secondary.. The 3-year average of the annual

fourth highest daily maximum 8-hour

average ozone concentration measured

at each monitor within an area must

be equal to or below the standard

value.

----------------------------------------------------------------------------------------------------------------

The one-hour ozone standard of 0.12 ppm has existed since 1979. The

eight-hour ozone standard, which replaces the one-hour standard, was

adopted by EPA on July 18, 1997 (62 FR 38856). However, the one-hour

ozone standard continues to apply for existing nonattainment areas

until such time as EPA determines that the area has attained the one-

hour ozone standard (40 CFR 50.9(b)). The one-hour standard continues

to apply to the Louisville area and it is the classification of the

Louisville area relative to the one-hour ozone standard that is

addressed in this document.

IV. What Is the Louisville Ozone Nonattainment Area?

The Louisville ozone nonattainment area is an interstate area which

includes counties in both Kentucky and Indiana as follows: Jefferson

County and portions of Bullitt and Oldham Counties in Kentucky; and

Clark and Floyd Counties in Indiana.

Under section 107(d)(1)(C) of the CAA, each area that EPA

designated nonattainment for the one-hour ozone standard prior to

enactment of the 1990 CAA amendments, such as the Louisville area,

retained its nonattainment designation by operation of law upon

enactment of the 1990 amendments. Under section 181(a) of the Act, each

ozone nonattainment area was also classified by operation of law as

``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or ``extreme,''

depending on the severity of the area's air quality problem. The design

value for a nonattainment area, which characterizes the severity of the

area's air quality problem, is represented by the highest design value

at any individual ozone monitoring site. The design value of a

monitoring site is the fourth highest one-hour daily maximum ozone

value recorded in a given three-year period with complete monitoring

data. Table 2 provides the design value ranges for each nonattainment

classification. Ozone nonattainment areas with design values between

0.138 and 0.160 ppm were classified as moderate, such as the Louisville

area which had a design value of 0.149 ppm in 1989. These nonattainment

designations and classifications were codified in 40 CFR part 81 (see

56 FR 56694, November 6, 1991).

Table 2.--Ozone Nonattainment Classifications

----------------------------------------------------------------------------------------------------------------

Area class Design value (ppm) Attainment date

----------------------------------------------------------------------------------------------------------------

Marginal................................ 0.121 up to 0.138.............. November 15, 1993.

Moderate................................ 0.138 up to 0.160.............. November 15, 1996.

Serious................................. 0.160 up to 0.180.............. November 15, 1999.

Severe.................................. 0.180 up to 0.280.............. November 15, 2005.

Extreme................................. 0.280 and above................ November 15, 2010.

----------------------------------------------------------------------------------------------------------------

[[Page 27736]]

Under section 182(b)(1)(A) of the CAA, states containing areas that

were classified as moderate nonattainment were required to submit SIPs

to provide for certain controls, to show progress toward attainment,

and to provide for attainment of the ozone standard no later than

November 15, 1996. Moderate area SIP requirements are found primarily

in section 182(b) of the CAA.

V. Why Is EPA Proposing To Reclassify the Louisville Area?

In regard to reclassification for failure to attain, section

181(b)(2)(A) of the Act provides that:

Within 6 months following the applicable attainment date (including

any extension thereof) for an ozone nonattainment area, the

Administrator shall determine, based on the area's design value (as of

the attainment date), whether the area attained the standard by that

date. Except for any Severe or Extreme area, any area that the

Administrator finds has not attained the standard by that date shall be

reclassified by operation of law in accordance with table 1 of

subsection (a) to the higher of--

(i) the next higher classification for the area, or

(ii) the classification applicable to the area's design value as

determined at the time of the notice required under subparagraph (B).

No area shall be reclassified as Extreme under clause (ii).

Furthermore, section 181(b)(2)(B) of the CAA provides that:

The Administrator shall publish a notice in the Federal Register,

no later than 6 months following the attainment date, identifying each

area that the Administrator has determined under subparagraph (A) as

having failed to attain and identifying the reclassification, if any,

described under subparagraph (A).

Table 3 lists the number of days when ambient ozone concentrations

exceeded the one-hour ozone standard and the average number of expected

exceedances at each monitoring site in the Louisville area for the

period 1994-1996. The ozone design value for each monitor is also

listed. Note that the average number of expected exceedances per year

is not always equal to the average number of days with measured ozone

above the standard. Expected exceedance calculations take missing data

into account. If a monitor does not collect a complete set of valid

data over its monitored period, fractional ``expected exceedances'' are

added to account for ozone exceedances that, statistically, could have

occurred during periods of missing data within high ozone episodes. The

three year average number of expected exceedances is used to determine

attainment of the ozone standard. See 40 CFR 50.9(a). Table 3 shows

that for 1994-1996, one monitoring site in the Louisville area averaged

more than one exceedance day per year; therefore, the area did not

attain the standard by November 15, 1996.

Section 181(a)(5) of the CAA states that an area may be eligible

for up to two one-year extensions if ``no more than one exceedance of

the NAAQS level for ozone has occurred in the area in the year

preceding the extension year.'' On October 23, 1997, EPA determined

that Louisville qualified for a one-year extension of the attainment

date to November 15, 1997 (See 62 FR 55173). Table 4 shows the ozone

data for 1995-1997. During this period, two monitoring sites in the

Louisville area averaged more than one exceedance per year, and the

area's design value was greater than the ozone standard. Because there

were multiple exceedances at two monitors during the 1997 ozone season,

the Louisville area was not eligible for a second one-year extension

under Section 181(a)(5), and the states did not request an extension.

Therefore, in this notice, pursuant to section 181(b)(2)(B) of the CAA,

EPA proposes to find that the Louisville area did not attain the 1-hour

standard by its applicable attainment date.

Table 3.--Air Quality Monitoring Data for the Louisville Nonattainment Area (1994-1996)

----------------------------------------------------------------------------------------------------------------

Average number

Number of days of expected Site design

Site AIRS site ID over standard exceedance value (ppm)

(1994-1996) days per year

----------------------------------------------------------------------------------------------------------------

Kentucky Sites (County):

Buckner (Oldham)............................ 21-185-0004 0 0 0.109

WLKY-TV (Jefferson)......................... 21-111-1021 1 0.37 0.12

Watson (Jefferson).......................... 21-111-0051 3 1 0.119

Brentlinger (Jefferson)..................... 21-111-0027 1 0.33 0.109

Shepherdsville (Bullitt).................... 21-029-0006 0 0 0.115

Indiana Sites (County):

Charlestown (Clark)......................... 18-019-0003 5 a 1.67 0.132

New Albany (Floyd) b........................ 18-043-1004 1 1 0.115

----------------------------------------------------------------------------------------------------------------

a Values over 1.05 represent a violation of the 1-hour ozone standard.

b This site became operational in 1995; the data recorded is for 1995-1996 only. The design value is calculated

from two years of data rather than three years.

Table 4.--Air Quality Monitoring Data for the Louisville Nonattainment Area (1995-1997)

----------------------------------------------------------------------------------------------------------------

Average number

Number of days of expected Site design

Site AIRS site ID over standard exceedance value (ppm)

(1995-1997) days per year

----------------------------------------------------------------------------------------------------------------

Kentucky Sites (County):

Buckner (Oldham)............................ 21-185-0004 2 0.7 0.109

WLKY-TV (Jefferson)......................... 21-111-1021 1 0.37 0.12

Watson (Jefferson).......................... 21-111-0051 2 0.67 0.12

Brentlinger (Jefferson)..................... 21-111-0027 2 0.67 0.111

Shepherdsville (Bullitt).................... 21-029-0006 1 0.4 0.116

Indiana Sites (County):

Charlestown (Clark)......................... 18-019-0003 5 a 1.73 0.125

[[Page 27737]]

New Albany (Floyd).......................... 18-043-1004 4 a 1.33 0.125

----------------------------------------------------------------------------------------------------------------

a Values over 1.05 represent a violation of the 1-hour ozone standard.

A complete listing of the ozone exceedances for each monitoring

site, as well as EPA's calculations of the design values, can be found

in the docket file for this action.

Table 5 is provided to show expected exceedance days per year for

1995 through 1998. Due to measured ozone exceedances at one monitor,

the Louisville area was again unable to attain the standard for the

period 1996-1998.

Table 5.--Air Quality Monitoring Data for the Louisville Nonattainment Area (1995-1998)

--------------------------------------------------------------------------------------------------------------------------------------------------------

Expected exceedance days Site design value

------------------------------------------------ (ppm)

Site AIRS site ID -----------------------

1995 1996 1997 1998 1995-1997 1996-1998

--------------------------------------------------------------------------------------------------------------------------------------------------------

Kentucky Sites (County):

Buckner (Oldham)............................................ 21-185-0004 0 0 2.1 1 0.109 0.12

WLKY-TV (Jefferson)......................................... 21-111-1021 0 1.1 0 1 0.12 0.121

Watson (Jefferson).......................................... 21-111-0051 1 1 0 1 0.12 0.121

Brentlinger (Jefferson)..................................... 21-111-0027 1 0 1 1 0.111 0.12

Shepherdsville (Bullitt).................................... 21-029-0006 0 0 1.2 0 0.116 0.111

Indiana Sites (County):

Charlestown (Clark)......................................... 18-019-0003 2.1 0 3.1 3.2 0.125 0.13

New Albany (Floyd).......................................... 18-043-1004 1 1 2 2 0.125 0.127

--------------------------------------------------------------------------------------------------------------------------------------------------------

As discussed later in this document, because EPA has now

interpreted the CAA to allow for an extension of the attainment date

based on an understanding of transport data not available at the time

of Louisville's original attainment date and after the one year

extended attainment date, EPA believes it is fair to allow Kentucky and

Indiana an opportunity to qualify for this attainment date extension

before EPA finalizes its finding of failure to attain and reclassifies

the Louisville area to serious nonattainment.

This proposal details the following reasons which support EPA's

decision to proceed in this manner:

1. EPA has concluded that this is the best way of reconciling the

CAA's provisions with respect to ozone transport with the provisions

governing graduated attainment dates and with the reclassification

provisions. The CAA shows Congressional intent that transport be

considered when the Agency acts to reclassify an area, and a reluctance

to subject an area to greater controls than necessary to bring local

sources into compliance.

2. The Louisville area has been shown to be affected by ozone

transport from upwind areas.

3. The Louisville area is now monitoring air quality that, were the

area being newly classified, would entitle it to the classification of

a marginal nonattainment area. However, if the Louisville area is

reclassified to serious nonattainment, it will be required to impose

emission control regulations which are normally demanded only for areas

monitoring much higher levels of air pollution.

4. Kentucky and Indiana have committed to submit an attainment

demonstration by November 1999, which includes all the local control

measures required under the CAA for moderate nonattainment areas,

demonstrating attainment by the date when upwind controls are expected

to be implemented.

Furthermore, EPA's proposal for an extension date is balanced by

EPA's action in moving forward with the process of reclassification in

the event that the States do not meet the criteria for an extension.

VI. What Is EPA's New Policy Regarding Extension of Attainment

Dates for Downwind Transport Areas?

A number of areas in the country that have been classified as

``moderate'' or ``serious'' are affected by pollutants that have

traveled downwind from other areas. For these downwind areas, transport

of pollutants from upwind areas has interfered with their ability to

meet the ozone standard by the dates prescribed by the CAA. As a

result, many of these areas, such as the Louisville area, find

themselves facing the prospect of being reclassified to a higher

classification (e.g., from ``moderate'' to ``serious'') for failing to

meet the ozone standard by the specified date.

For some time, EPA has recognized that pollutant transport can

impair an area's ability to meet air quality standards. As a result, in

March 1995 a collaborative, Federal-state process to assess the ozone

transport problem was begun. Through a two-year effort known as the

Ozone Transport Assessment Group (OTAG), EPA worked in partnership with

the 37 easternmost states and the District of Columbia, industry

representatives, academia, and environmental groups to develop

recommended strategies to address transport of ozone-forming pollutants

across state boundaries.

On November 7, 1997, EPA acted on OTAG's recommendations and issued

a proposal (the proposed NOX SIP call, 62 FR 60318)

requiring 22 states and the District of Columbia to submit state

implementation plans addressing the regional transport of ozone. These

state implementation plans, or SIPs, will decrease the transport of

ozone across state boundaries in the eastern half of the United States

by reducing emissions of NOX (a precursor to ozone

formation). EPA took final action on the NOX SIP call on

October 27, 1998 (63 FR 57356). EPA expects that the final

NOX SIP call

[[Page 27738]]

will assist many areas in attaining the one-hour ozone standard.

On July 16, 1998, in consideration of these factors and the

realization that many areas are unable to meet the CAA mandated

attainment dates due to transport, EPA issued the extension policy. In

this policy the attainment date for an area may be extended provided

that the following criteria are met: (1) the area must be identified as

a downwind area affected by transport from either an upwind area in the

same state with a later attainment date or an upwind area in another

state that significantly contributes to downwind nonattainment (by

``affected by transport,'' EPA means an area whose air quality is

affected by transport from an upwind area to a degree that affects the

area's ability to attain); (2) an approvable attainment demonstration

must be submitted with any necessary, adopted local measures and with

an attainment date that shows that it will attain the one-hour standard

no later than the date that the reductions are expected from upwind

areas under the final NOX SIP call and/or the statutory

attainment date for upwind nonattainment areas, i.e., assuming the

boundary conditions reflecting those upwind reductions; (3) the area

has adopted all applicable local measures required under the area's

current classification and any additional measures necessary to

demonstrate attainment, assuming the reductions occur as required in

the upwind areas; and (4) the area must provide that it will implement

all adopted measures as expeditiously as practicable, but no later than

the date by which the upwind reductions needed for attainment will be

achieved.

EPA contemplates that when it acts to approve such an area's

attainment demonstration, it will, as necessary, extend that area's

attainment date to a date appropriate for that area in light of the

schedule for achieving the necessary upwind reductions. The area would

no longer be subject to reclassification for failure to attain by its

original attainment date under section 181(b)(2).

VII. Is the Louisville Area Eligible for an Attainment Date

Extension Under the Extension Policy?

EPA believes that the Louisville area is affected by upwind

transport. In fact, according to the final NOX SIP call, the

Louisville area is affected by transport of pollutants from upwind

areas to an extent that the area's ability to meet the one-hour ozone

standard is impaired. Therefore, EPA believes that the first of the

transport criteria is satisfied. However, before the Louisville area

can qualify for an attainment date extension under the extension

policy, the remainder of the criteria specified in the extension policy

must be met.

In October 1998, EPA notified the Governors of Kentucky and Indiana

of the availability of the extension policy. EPA also requested that,

if they wished to demonstrate their eligibility for the extension

policy, the Governors respond to EPA with a letter committing their

respective States to meet the requirements necessary to qualify for an

attainment date extension under the policy by November 15, 1999.

On December 3, 1998, Kentucky submitted a letter to EPA providing a

commitment to meet the requirements of the extension policy. Similarly,

on December 19, 1998, Indiana submitted a letter to EPA providing a

commitment to meet the requirements of the extension policy. (EPA's

letters notifying the Kentucky and Indiana Governors of the extension

policy, and their respective responses, are included in the docket for

this rulemaking.)

EPA's review of the Attainment Demonstration SIP for the Louisville

area indicates that Kentucky and Indiana must submit the following in

order to meet the requirements set forth in the extension policy:

1. A technical analysis establishing the influence of transport on

ozone levels within the Louisville area. This requirement can be met by

citing the analysis contained in EPA's aforementioned NOX

SIP call;

2. Regulations or negative declarations addressing certain CAA

requirements for the Indiana portion of the Louisville area including:

(a) Synthetic Organic Chemical Manufacturing Industry (SOCMI)

distillation; (b) SOCMI reactors; (c) Lithography; (d) Batch processes;

(e) Industrial wastewater treatment; (f) Business plastics; (g) Cleanup

solvents; and (h) Aerospace coatings;

3. Source specific reasonably available control technology

(NOX RACT) measures for the Kentucky portion of the

Louisville area; and

4. A revised attainment demonstration meeting the criteria set

forth in the extension policy.

In addition, the States must submit SIP revisions addressing any

other local control measures necessary for attainment. All measures

must also be implemented in accordance with the time frames set forth

in the extension policy.

VIII. What Progress Has Been Made by Kentucky and Indiana To Meet

the Extension Policy so That an Attainment Date Extension Can Be

Obtained?

Kentucky and Indiana have already done extensive work toward

meeting the extension policy. Several major portions of the extension

policy have already been satisfied, and Kentucky and Indiana have

already made substantial progress toward compliance with the criteria

for obtaining an attainment date extension.

Regarding the first item, EPA believes that Kentucky and Indiana

can establish the influence of transport on ozone levels within the

Louisville area by citing the analysis contained in EPA's

NOX SIP call.

Regarding the second item, Indiana is reviewing the source

inventory for Clark and Floyd Counties. Indiana has committed to either

develop RACT regulations if those source categories exist in Clark and

Floyd Counties, or make a formal declaration that no subject sources of

the category exist in the two counties. Kentucky has already met the

VOC RACT requirements.

Regarding the third item, the Air Pollution Control District of

Jefferson County, Kentucky has developed and is currently adopting a

NOX RACT regulation that requires Jefferson County area

sources to submit source specific SIP revisions consistent with

NOX RACT requirements. For the remaining part of the

Louisville area which includes portions of Bullitt and Oldham Counties

there are no existing major NOX emission sources, therefore

the Commonwealth of Kentucky is not required to implement

NOX RACT requirements for that area. Indiana has already met

the NOX RACT requirements.

Regarding the fourth item, Kentucky and Indiana are currently

working to develop an approvable attainment demonstration. They have

initiated the steps leading to a final attainment demonstration and

have committed to completing and submitting the attainment

demonstration by November 15, 1999.

IX. What Actions Have Kentucky and Indiana Taken To Improve Air

Quality in the Louisville Area?

Jefferson County, Kentucky, has implemented VOC emission reductions

as part of its 15 percent rate-of-progress plan (15 percent plan). EPA

is currently drafting rulemaking on this plan. The VOC controls

Jefferson County has implemented include: (1) VOC emission reduction

requirements and a rule effectiveness improvement plan for

[[Page 27739]]

sources subject to the requirements; (2) architectural and industrial

maintenance coatings regulations; (3) transportation control measures

including transit, rideshare, alternative fuels, and traffic signal

improvements; (4) automobile refinishing emission control regulations;

(5) Stage II vapor recovery and control regulation; (6) solid waste

landfill regulations; (7) a basic plus vehicle inspection and

maintenance (I/M) program which includes loaded idle testing, pressure

testing requirements, and tampering inspections which apply to vehicles

that regularly or routinely commute to Jefferson County; and (8) the

use of the reformulated gasoline (RFG) program for off-road and on-road

mobile sources.

Jefferson County has sought further reductions from the I/M program

by including loaded mode testing and enhanced mechanic training. EPA

recently approved Jefferson County's I/M program requirement for a

check of the On Board Diagnostic (OBD) system on model-year 1996 and

newer automobiles (refer to 64 FR 12798, March 15, 1999). Jefferson

County has maintained an innovative approach to the local I/M program,

also referred to as the Vehicle Emission Testing (VET) program, since

its inception in 1984. The program continues to be effectively

implemented and Jefferson County remains a national leader through, for

example, implementation of a vehicle repair report card which evaluates

the effectiveness of automobile repairs required under the I/M program.

The program also remains on the forefront with the requirement for the

evaluation of automobiles by a VET staff mechanic before an emission

certification waiver request is granted. The I/M program is an

important component of the emission reduction strategy in Jefferson

County.

Jefferson County has adopted RACT regulations requiring additional

emission reductions from bakery oven facilities, ferroalloy and calcium

carbide production facilities, and volatile organic loading facilities.

Jefferson County plans to submit these RACT regulations to EPA in the

near future. To provide further emission reductions, Jefferson County

is currently adopting a cold cleaning operations regulation.

The State of Indiana has also taken a number of actions to improve

air quality in the Louisville area. Indiana has adopted and fully

implemented the VOC emission reduction measures included in its 15

percent rate-of-progress plan (15 percent plan). EPA published final

approval of Indiana's 15 percent plan in May 1997 (62 FR 24815).

Indiana's 15 percent plan limits VOC emissions from local

operations such as volatile organic liquid storage tanks, automobile

refinishing, municipal solid waste landfills, ship building and ship

repair, and a local offset printing facility. The plan also includes an

upgraded vehicle inspection and maintenance program, which uses a

dynamometer to better identify polluting cars. Other measures in place

include required use of Stage II gasoline vapor recovery systems at

service stations, implementation of a gasoline with lower Reid Vapor

Pressure (RVP); a ban on residential open burning, and a ridesharing

program. Municipal solid waste landfills were required to install a gas

collection and combustion system sooner than the federal time schedule.

Indiana has also implemented RACT rules for sources of NOX.

To further improve air quality, Indiana has implemented additional

measures including a rule establishing vapor pressure limits for

solvents used in cold cleaning degreasing. Indiana has also established

a local steering committee to assist in identifying additional emission

reduction opportunities that will continue to improve and maintain air

quality. The steering committee reflects broad representation including

the public, industry, local government, health associations, and

environmental groups.

X. If EPA Finalizes Its Proposed Rulemaking Reclassifying the

Louisville Area, What Would Be the Area's New Classification?

Section 181(b)(2)(A) of the Act requires that, when an area is

reclassified for failure to attain, its reclassification will be the

higher of the next higher classification or the classification

applicable to the area's ozone design value at the time the notice of

reclassification is published in the Federal Register. The design value

of the Louisville area at the time of the proposed finding of failure

to attain is based on air quality monitoring data from 1996 through

1998. (Refer to Table 5 for 1996-1998 data.) The 1996-1998 design value

is 0.130 ppm, as derived from the Charlestown, Indiana (Clark Co.)

monitoring site, and the classification of ``marginal'' nonattainment

would be applicable to that design value. By contrast, because the

Louisville area is currently classified ``moderate,'' the next higher

classification for the area is ``serious'' nonattainment. Since

``serious'' is a higher nonattainment classification than ``marginal''

under the statutory scheme, the Louisville area would be reclassified

to serious nonattainment, if EPA finalizes its proposal to reclassify.

XI. If the Louisville Area Is Reclassified to Serious, When Would

It Be Required To Attain the Standard?

Under section 181(a)(1) of the Act, the new attainment deadline for

moderate ozone nonattainment areas reclassified to serious under

section 181(b)(2) would be ``as expeditious as practicable,'' but no

later than the date applicable to the new classification, i.e.,

November 15, 1999. However, EPA does not expect to take final action on

this proposed reclassification until after November 15, 1999. As stated

previously, EPA is proposing to allow the states adequate time to

demonstrate that an extension of the attainment date, instead of a

reclassification, would be appropriate under the extension policy. As a

practical matter, even if EPA were to reclassify the Louisville area

immediately, there would likely be insufficient time for Kentucky and

Indiana to submit new attainment demonstrations and actually attain the

one-hour ozone standard by November 15 of this year. EPA believes that

the practical impossibility of meeting the November 1999 statutory

serious area attainment deadline requires EPA to establish a new

attainment date for the area. EPA believes that it is appropriate to

propose an alternative deadline for the Louisville area that is as

expeditious as practicable. Therefore, in this document EPA is

proposing options for extending the attainment date in the event that

the area is reclassified to serious.

Section 182(i) states that the Administrator may adjust applicable

deadlines (other than attainment dates) to the extent such adjustment

is necessary or appropriate to assure consistency for submission of the

new requirements applicable to an area which has been reclassified.

Where an attainment date has already passed or is otherwise impossible

to meet, EPA believes that the Administrator may also adjust an

attainment date to assure fair and equitable treatment consistent with

the provisions in section 182(i), notwithstanding the parenthetical

clause. EPA also notes another provision of the CAA in section

110(k)(5) pertaining to findings of SIP inadequacy that allows the

Administrator to adjust attainment dates when such dates have passed.

Although this latter provision is not directly applicable to a

reclassification, EPA believes that the provision illustrates a

recognition by Congress of the limited instances in which it becomes

necessary to adjust attainment dates, particularly

[[Page 27740]]

where it is otherwise impossible to meet the statutory date.

One option is to construct a schedule consistent with recent

reclassifications of other areas. EPA has recently reclassified other

moderate ozone nonattainment areas, including Santa Barbara,

California; Phoenix, Arizona; and Dallas-Fort Worth, Texas. The

attainment date for these areas is November 15, 1999. EPA published the

notice reclassifying the Dallas-Fort Worth area on February 18, 1998,

thereby providing approximately 21 months for the area to attain the

standard. EPA concluded that 21 months was an adequate period for a

moderate attainment area to attain the standard where the CAA mandated

attainment date for the new classification had not yet lapsed, but

where there was less time remaining than the Act had contemplated. If

EPA finalizes this proposed reclassification of the Louisville area,

EPA could require the area to attain the standard on a similar time

frame. Applying this approach to the Louisville area would result in

setting a new attainment date 21 months from publication of the final

reclassification notice.

Another option would be to set an attainment date that takes into

account the impact of transport on the area, even if the area fails to

fully meet the criteria for the attainment date extension policy. As

stated previously, EPA believes that the Louisville area is affected by

transported pollutants. This attainment date would coincide with the

date set for upwind area reductions under the NOX SIP call,

or May 2003. Although the Louisville area, if reclassified, would have

to meet the requirements for a serious area, under this option it would

not be held responsible for emission reductions necessary to compensate

for transported pollution. This option would then be consistent with

EPA's approach of allocating responsibility for pollution fairly among

the states. EPA welcomes any comments on the options discussed above.

An area reclassified to serious is required to submit SIP revisions

addressing the serious area requirements for the one-hour ozone

standard in section 182(c). If the Louisville area is reclassified, EPA

must also address the schedule by which Kentucky and Indiana are

required to submit SIP revisions meeting the serious area requirements.

One option is to require that the States submit SIP revisions

containing all of the serious area requirements no later than one year

after final action on the reclassification. This submission would

include a new attainment demonstration and all additional measures

required by section 182(c) of the Act. The additional measures include,

but are not limited to, the following: (1) Attainment and reasonable

further progress demonstrations; (2) an enhanced vehicle I/M program;

(3) a clean-fuel vehicle program; (4) a 50 ton-per-year major source

threshold; (5) more stringent new source review requirements; (6) an

enhanced monitoring program; and (7) contingency provisions. If the

submission shows that the area can attain the standard sooner than the

attainment date established in a final reclassification notice, EPA

would adjust the attainment date to reflect the earlier date,

consistent with the requirement in section 181(a)(1) that the standard

be attained as expeditiously as practicable. EPA solicits comments on

the appropriate schedule for submitting these SIP revisions.

XII. When Will EPA Make a Final Decision on Whether To Reclassify

or Grant an Extension to the Louisville Area?

If Indiana and Kentucky submit the aforementioned air quality

analyses and regulations to EPA by November 15, 1999, EPA will publish

a supplemental proposal to address the approvability of the submittals.

If EPA proposes and subsequently takes final action to approve the

States' submittals, the Agency would finalize the attainment date

extension for the Louisville area to an appropriate date, and not

finalize the finding of failure to attain. However, if EPA proposes and

subsequently takes final action to disapprove the States' submittals,

the Agency would instead finalize the reclassification of the

Louisville area to serious. If EPA finalizes the reclassification,

Kentucky and Indiana would be required to submit SIPs that adopt the

serious area requirements. A schedule for submitting the SIPs would be

set at that time.

XIII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under E.O. 12875, Enhancing the Intergovernmental Partnership, EPA

may not issue a regulation that is not required by statute and that

creates a mandate upon a state, local, or tribal government, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by those governments, or EPA consults with

those governments. If EPA complies by consulting, E.O. 12875 requires

EPA to provide to the OMB a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's proposal would not create a mandate on state, local, or

tribal governments. It would not impose any enforceable duties on these

entities. The SIP submission requirements are not judicially

enforceable. Accordingly, the requirements of section 1(a) of E.O.

12875 do not apply to this proposal.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This proposal is not subject to E.O. 13045 because it is not an

economically significant regulatory action as defined by E.O. 12866,

and it does not establish a further health or risk-based standard

because it implements a previously promulgated health or safety-based

standard.

D. Executive Order 13084

Under E.O. 13084, Consultation and Coordination with Indian Tribal

Governments, EPA may not issue a regulation that is not required by

statute, that significantly or uniquely affects the communities of

Indian tribal governments, and that imposes substantial direct

compliance costs on those communities, unless the Federal government

provides the funds necessary to pay the direct compliance costs

incurred by the tribal

[[Page 27741]]

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 13084 requires EPA to provide to the OMB, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's proposal would not significantly or uniquely affect tribal

governments. Accordingly, the requirements of section 3(b) of E.O.

13084 do not apply to this proposal.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to

conduct a regulatory flexibility analysis of any rule subject to notice

and comment rulemaking requirements, unless the agency certifies that

the rule will not have a significant economic impact on a substantial

number of small entities. Small entities include small businesses,

small not-for-profit enterprises, and small governmental jurisdictions.

This proposal will not have a significant impact on a substantial

number of small entities because a finding of failure to attain under

section 181(b)(2) of the CAA, and the establishment of a SIP submittal

schedule for the reclassified area, do not, in and of themselves,

directly impose any new requirements on small entities. See Mid-Tex

Electric Cooperative, Inc. v. FEC., 773 F.2d 327 (D.C. Cir. 1985)

(agency's certification need only consider the rule's impact on

entities subject to requirements of the rule). Instead, this proposal

proposes to make a determination and to establish a schedule for states

to submit SIP revisions and does not propose to directly regulate any

entities. Therefore, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must, unless otherwise prohibited by law, prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated annual costs to state,

local, or tribal governments in the aggregate; or to private sector, of

$100 million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

Sections 202 and 205 do not apply to today's action because the

proposed determination that the Louisville area failed to reach

attainment does not, in-and-of-itself, constitute a Federal mandate

because it does not impose an enforceable duty on any entity. In

addition, the CAA does not permit EPA to consider the types of analyses

described in section 202, in determining whether an area has attained

the ozone standard or qualifies for an extension. Finally, section 203

does not apply to today's proposal because the SIP submittal schedule

would affect only the states of Kentucky and Indiana, which are not

small governments.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

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

Dated: May 4, 1999.

John H. Hankinson, Jr.,

Regional Administrator, Region 4.

Dated: May 12, 1999.

Richard C. Karl,

Acting Regional Administrator, Region 5.

[FR Doc. 99-12751 Filed 5-20-99; 8:45 am]

BILLING CODE 6560-50-P