KRC Opposes Approval of Revisions to Ozone Pollution Plan in Northern Kentucky

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May 18, 2005

Ms. Michele Notarianni
Air Planning Branch
U.S. Environmental Protection Agency
61 Forsyth Street SW
Atlanta GA 30303-8960

Re: Approval and Promulgation of
Implementation Plans for Kentucky:
Inspection and Maintenance Program Removal
for Northern Kentucky;Commercial Motor
Vehicle and Mobile Equipment Refinishing Operations
70 Federal Register 17029 (April 4, 2005),
As Extended, 70 Federal Register 22623 (May 2, 2005).

Dear Ms. Notarianni:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., in response to the solicitation of public comment by US EPA on the proposed approval of four related revisions to the Kentucky State Implementation Plan (SIP) submitted by the Commonwealth of Kentucky on November 12, 2004.

Specifically, EPA is proposing to approve the movement of the regulation underlying the Northern Kentucky inspection and maintenance program (I/M program) from the active portion of the Kentucky SIP to the contingency measures section of the Northern Kentucky 1-Hour Ozone Maintenance Plan. EPA is also proposing to approve revisions to a Kentucky rule which provides for the control of volatile organic compounds from new solvent metal cleaning equipment. Further EPA proposes to approve the addition of a new rule to the Kentucky SIP affecting commercial motor vehicle and mobile equipment refinishing operations in Northern Kentucky. Finally, EPA is proposing to approve update mobile source category emission projections using MOBILE 6.2, with updated, subarea motor vehicle emission budgets (MVEBs) for the year 2010.

After reviewing the text of the two state administrative regulations that have been submitted by Kentucky and are proposed for approval by US EPA to replace the current I/M program in the 1-hour maintenance plan, the Kentucky Resources Council (KRC) offers these comments:

I. Background

The proposed termination of the current I/M program through the shifting of the underlying regulations from the active portion of the Kentucky SIP to the contingency measures section of the Northern Kentucky 1-Hour Ozone Maintenance Plan, will result in the emission of an additional .78 tons per summer day of volatile organic compounds (VOCs) and .29 tons per summer day (tpsd) of Oxides of Nitrogen (NOx), as well as 12.5 tons of Carbon Monoxide (CO) per summer day in year 2005.

The proposed SIP revision submitted by the Commonwealth of Kentucky seeks EPA approval to substitute emissions reductions to be theoretically achieved through revisions to one state regulation 401 KAR 59:185 (New Solvent Metal Cleaning Equipment) and adoption of another state regulation, 401 KAR 59:760 (Commercial Motor Vehicle and Mobile Equipment Refinishing Operations), for the loss of these emission reductions attributable to the operation of the I/M program.

For the reasons stated below, KRC submits that the proposed SIP revisions cannot be approved as submitted for these adequate and independent reasons: first, because EPA regulations clearly provide that inspection and maintenance programs that are part of the maintenance plan?s applicable requirements for an area that is in attainment with the 1-hour ozone standard at the time that the area is designated as nonattainment for the 8-hour standard, must be continued until the area attains the 8-hour standard; second, because noninterference with Section 110(l) cannot be demonstrated absent an attainment demonstration for the 8-hour standard; and third, because even if the SIP could be modified to substitute equivalent, surplus, quantifiable, permanent and enforceable emissions reductions and to shift the I/M program to the contingency category, the amendment to 401 KAR 59:185 and the adoption of 401 KAR 59:760 fail to meet those thresholds and are not compensatory reductions sufficient to offset the lost reductions.

II. Comment Period Extension Request And Supplemental Comments

On April 25, KRC requested certain information from the state Division for Air Quality concerning the SIP revision, specifically:

1. A list of individual sources, by name and location (if possible) that have been identified by the Division as coming under regulation under 401 KAR 59:185 or 401 KAR 59:760 within the northern Kentucky counties of Boone, Kenton, and Campbell, and the method by which the sources were identified.

2. For any individual sources listed in response to question 1, any information in the possession of the Cabinet indicating whether that source has already installed technologies or workplace practices that would meet the requirements of 401 KAR 59:185 or 401 KAR 59:760, and when that technology or workplace practice was installed or adopted.

Apparently, through a glitch in communication within the agency, the response was not forthcoming and when the agency was again contacted on May 18, documentation was provided. In order to allow for meaningful review of that information, EPA officials in Region IV granted a one-week extension to the comment period.

KRC will supplement this letter with additional comments concerning the two proposed control measures that are intended to substitute for the lost I/M emissions reductions. The remainder of this letter will address the first two issues, which are the effect of the anti-backsliding provisions of the 8-Hour Ozone Implementation Rule on the legal ability of the EPA to approve removal of the I/M program from the Northern Kentucky 1-Hour Ozone Maintenance Plan, and whether Section 110(l) prohibits removal of the I/M program until an attainment demonstration is made for the 8-hour standard.

III. Removal of I/M Regulations From Active Component of Northern Kentucky SIP Would Violate EPA Regulations Requiring Maintenance of I/M Programs Until Compliance With 8-Hour Standard Is Achieved

Section 110(l) of the Clean Air Act prohibits approval by the Administrator of any SIP revision that “would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.” EPA has acknowledged, in the context of the belated amendment to the Jefferson County ozone SIP, that both the 1-hour ozone standard, (with which Northern Kentucky is in attainment), and the 8-hour ozone standard, (for which Northern Kentucky’s counties are designated as “nonattainment”), are “applicable requirements” under Section 110(l).

Section 110(l) is intended to prevent backsliding in progress towards maintaining or achieving attainment of healthful air quality standards. If the only “applicable” standard were the 1-hour ozone standard, in order for alternative reductions to be substituted for those obtained through a control measure in an approved SIP, those substituted reductions would need to be “equivalent emissions reductions, both locally and regionally[.]” Letter of March 19, 2004 from Beverly Bannister, Director, Air Pesticides and Toxics Management Division, Region IV EPA to Director, Louisville Metro Air Pollution Control District, p. 1. Equivalent reductions must be “surplus, quantifiable, enforceable and permanent [,]” and the revised set of controls must be shown to result in equivalent or better air quality benefits.

As the supplemental comments to be submitted within the extended comment period will demonstrate, the revisions to 401 KAR 59:185 and new 59:760 fail to satisfy the test of being contemporaneous, surplus and equivalent reductions. Even if they were adequate to offset the lost reductions, however, the 8-Hour Implementation Rule, which implements an “applicable” requirement under Section 110(l), specifically prohibits the shifting of the I/M program for Northern Kentucky into the contingency category at this time.

On April 15, 2004, EPA published the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard – Phase I. That final rule addressed several key components of the proposed implementation strategy for the 8-hour ozone standard, including the classification of areas for purposes of the 8-hour ozone NAAQS and the transition from the 1-hour to 8-hour ozone standard. Specifically with reference to this proposed SIP revision, the April 15, 2004 final rule specifically addressed how antibacksliding principles would be applied to ensure continued progress towards attainment of the 8-House Ozone NAAQS.

Since Northern Kentucky was in attainment and maintenance status with respect to the 1-hour ozone standard at the time that the area was designated by EPA as being in nonattainment with the 8-hour ozone standard, the region fell within the category of “8-Hour NAAQS Nonattainment/1-Hour NAAQS Maintenance” under 40 C.F.R. 51.905(a)(2) which provides that:

An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900 (f) to the extent such obligations are required by the approved SIP, except as provided in paragraph (b) of this section. Applicable measures in the SIP must continue to be implemented; however, if these measures were shifted to contingency measures prior to designation for the 8-hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area’s requirements under the 8-hour NAAQS. The State may not remove such measures from the SIP.

40 CFR 51.905(a)(2) (Italics added).

In determining what obligations are imposed by the final rule on the Northern Kentucky portion of the Northern Kentucky – Cincinnati/Hamilton Ohio SIP, certain threshold factual issues must be considered.

First, it is clear that 40 CFR 51.905(a)(2) applies since the status of Northern Kentucky’s counties at the time of the designation for the 8-hour NAAQS were attainment for the 1-hour ambient air quality standard for ozone, and nonattainment for the 8-hour standard.

Second, it is clear that the vehicle I/M program was a component of the approved SIP and thus constitutes an “obligation [ ] required by the approved SIP. The regulation distinguishes those measures required by the approved SIP from those required by the Act to be implemented by virtue of the applicable 8-hour classification category, making clear that even if not required to be maintained by the classification of the area under the 8-hour rule, the maintenance measures for the 1-hour plan must be continued, unless shifted to the contingency category before designation. In Northern Kentucky, the vehicle I/M program was not shifted to a contingency measure prior to the designation of the region for the 8-hour ozone NAAQS.

The only remaining threshold, then, is whether an I/M program is an “applicable requirement” since 51.905(a)(2) requires that the applicable requirements “as defined in section 51.900(f)” continue to be implemented until the 8-hour standard is attained. The referenced section, 51.900(f) lists “inspection and maintenance programs” as one of twelve “applicable requirements” that must therefore be continued.

After April 15, 2004, then, by virtue of the mandate that “1-hour maintenance, 8-hour nonattainment” areas continue the control measures in the maintenance plan, whatever flexibility EPA regulations or policies might have previously claimed to allow termination or removal of an I/M program from a 1-hour ozone maintenance area was bounded by the unambiguous requirement that such measures continue after the date of designation as nonattainment for the 8-hour ozone standard.

40 CFR 51.905(a)(2) contains one exception to the unambiguous requirement to continue the maintenance plan requirements.

An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900(f) to the extent such obligations are required by the approved SIP, “except as provided in paragraph (b) of this section.”

The exception provided in paragraph (b) of 40 CFR 51.905 allows an applicable requirement to be shifted to a contingency measure once the area attains the 8-hour standard. The clear conclusion from this language is that applicable requirements (such as the explicitly included inspection and maintenance program) may not be transferred to a contingency measure prior to that time. Because the Northern Kentucky I/M program was not transferred to a contingency measure prior to the 8-hour designations, Kentucky must continue to implement it.

KRC raised this precise question with EPA by email on January 9, 2005, and received a response from the Air Programs Branch contact for EPA’s Region IV indicating that “in the mid-90’s, the Agency published a FR that gives some leeway to areas with only a basic I/M program requirement. I think that is the subject of the May 12 memo you requested.” Correspondence from Kay Prince, EPA Region IV, January 9, 2005.

The May 12, memo in question, from Tom Helms and Leila Cook to all Air Program Managers at EPA on “1-Hour Ozone Maintenance Plans Containing Basic I/M Programs,” is flatly at odds with the unambiguous and mandatory language of 40 CFR 51.905(a)(2). The memorandum acknowledges that areas that are maintenance for the 1-hour standard and nonattainment for the 8-hour NAAQS are required to maintain I/M programs, but then creates out of whole cloth a new exemption to the 2004 regulations based on a 1995 regulation that addressed 1-hour attainment. According to the memorandum: “Specifically, you should be aware of special provisions that were published January 5, 1995 (60 FR 1735) which apply to areas required to implement basic I/M programs under the 1-hour ozone standard that are subsequently redesignated to attainment for that standard. These provisions can be found at 51.372(c) of the I/M rule, under the heading “Redesignation requests.” Under these provisions, a basic I/M area which has been redesignated to attainment for the 1-hour ozone standard can convert the I/M program to a contingency measures as part of the area’s maintenance plan. Assuming that the 1-hour maintenance area in question is subsequently designated nonattainment for the 80-hour ozone standards, but a classification that would not otherwise trigger the I/M requirement, such an area continues to have the option of converting the I/M program to a contingency measure, provided the area can demonstrate that doing so will not interfere with its ability to comply with any NAAQS or any other applicable CAA requirement [as required in compliance with section 110 of the CAA}.” Unfortunately for the agency, the 2004 regulation simply will not admit to a reading that it is subject to an additional exception beyond that provided in the rule itself. It does not pass the straight-face test that a rule stating unequivocally that maintenance plan measures must be continued unless they were shifted to contingency status prior to designation, really meant all maintenance plan measures other than those requiring basic I/M programs”. Whatever flexibility might have existed by rulemaking in 1995 was constrained in the 2004 rule, and the agency cannot read into the latter rule an implied exception for basic I/M programs.

In addition to the plain and unambiguous language of 40 CFR 51.905(a)(2) that precludes shifting of “applicable requirements” to the contingency category, and the inclusion of all I/M programs within the regulatory definition of “applicable requirements,” the regulatory history of the new rule makes clear that the agency did not contemplate an exception that would allow a shift of I/M to a contingency measure pursuant to section 51.372(c). The basis and purpose statement, or “preamble” to the April 15, 2004 rule states that “upon designation as nonattainment for the 8-hour NAAQS, a 1-hour maintenance area will not be able to shift adopted controls (i.e., those identified as ‘applicable requirements’ in the regulation) to contingency measures as those obligations are now defined as ‘applicable requirements.’” 69 Fed. Reg. at 23,979. There is no ambiguity in this language and no exception for basic I/M programs as claimed in the May 12, 2004 memo. Since 40 CFR 51.905(a)(2) specifically requires that maintenance measures such as the Northern Kentucky I/M program be continued until compliance is achieved with the 8-hour standard, the requested SIP revision must be disapproved.

IV. Removal of I/M Regulations From Active Component of Northern Kentucky SIP Would Constitute Interference With Achievement Of The 8-Hour Standard

Assuming for the moment that 40 CFR 51.905 could be construed not to mandate continuation of the I/M program, moving the program to the contingency category would yet violate the antibacksliding provision of Section 110(l) since the state has not demonstrated that removal of the provision will not interfere with attaining the 8-hour standard.

EPA indicated in a May 11, 2004 letter to the Metro Louisville Air Pollution Control District that a “strict interpretation” of Section 110(l) would delay any approval of changes to SIP control measures since 110(l) would allow EPA to approve a SIP revision removing a SIP requirement only after determining through development of appropriate demonstrations that it would not interfere with applicable requirements concerning attainment and reasonable further progress. Since that attainment demonstration was not yet made, EPA indicated a belief that such a “strict interpretation is [not] necessary or appropriate[]” and that:

“[p]rior to the time that attainment demonstrations are due for the new standards, EPA believes it is appropriate to interpret 110(l) to allow substituting equivalent emissions reductions for a control measure in the SIP. EPA believes that it would be defensible to interpret the statute as allowing such a substitution, so long as actual emissions in the air are not increased. We believe that this would represent noninterference with the obligation to demonstrate attainment of the new standards in the period prior to submission of the attainment plan. Our Office of General Counsel advises that in order to defend this interpretation, the equivalent reductions would have to represent actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated, in order to preserve the status quo level of emissions in the air. Thus, an area could not claim as substitute emissions reductions those reductions that had already occurred and achieved actual reductions in the air at a time not contemporaneous with the termination of the existing SIP control measure.”

EPA has acknowledged that a “strict” (or one might say the only plain) reading of Section 110(l) would prohibit approval of a proposed SIP revision to remove a maintenance measure adopted to maintain the 1-hour ozone SIP, until that state had undertaken the attainment demonstration for the 8-hour ozone standard and demonstrated that the elimination of the measure would not result in interference with reasonable further progress towards attainment of the standard.

KRC believes this “strict” interpretation is in fact the only interpretation of Section 110(l) that is 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 northern Kentucky airshed, is of questionable legality. Until EPA completes the guidance on what constitutes “interference” (guidance which the May 12, 2004 memo from Tom Helms to Air Program Managers indicated is under development), it is difficult to understand how the EPA could defend an ad-hoc finding of “non-interference.”

The Commonwealth’s effort to remove the I/M program prior to adopting an attainment strategy for the 8-hour standard is unwise as well. What the Commonwealth is proposing is to remove from the array of measures available to meet the new standard, a currently implemented and effective control measure, without knowing what additional reductions may be needed and what control measures are available and at what cost.

There are a limited number of available tools for reducing ozone precursors from the affected airshed. Prior to removing the I/M program from the array of available control measures, the attainment demonstration for the new standards should first be developed and the I/M program be shown to be truly surplus to those measures (either in place or to be adopted) needed to meet and maintain the new 8-hour and fine particulate standards. It would do a great disservice to the region if the I/M measure were removed in the short term, only to prove necessary (from a cost or availability standpoint) to achieve the more rigorous ozone and particulate standards, necessitating significant restart costs, a shifting of emissions control costs to other sectors, or imposition of more intrusive controls on on-road mobile sources.

Both a plain reading of Section 110(l) and SJR 3 appear to require that the Cabinet first determine whether the I/M program will be necessary for achievement of the 8-hour ozone standard prior to approval of removal of the measure from the current SIP. The designation of the northern Kentucky counties under the 8-hour ozone standard and the fine particulate designation has now occurred. The new standards are “applicable requirements” under federal law.

Additionally, under Section 4 of SJR 3, because the area served by the Northern Kentucky Emissions Check testing program has been redesignated as nonattainment under the 8-hour ozone standard, the Cabinet is required to formulate a SIP for the ozone standard “that does not rely upon a vehicle emissions testing program, unless the same is required by law or necessary for the approval of the State Implementation Plan.” The implementation strategy for the 8-hour ozone standard does not require an I/M program as one of the mandated control measures for the nonattainment category into which the northern Kentucky counties have been designated. Whether the measure is “necessary”, however, requires the Cabinet to undertake an attainment demonstration to determine both the necessity and availability of additional control measures to achieve the newer standard.

V. Assuming That The May 11, 2004 Interpretation Is Permissible and 40 CFR 51.905(a)(2) Doe Not Preclude Elimination of The Program At This Time, The Proposed SIP Revision Falls Short of Providing Equivalent, Surplus, Quantifiable, Permanent And Enforceable Emissions Reductions To Offset The Loss Of The I/M Reductions

Assuming, for the sake of argument, that the EPA interpretations of Section 110(l) and 40 CFR 51.905(a)(2) are permissible and that in the absence of the attainment demonstration for the 8-hour standard, control measures for the 1-hour ozone maintenance plan could be shifted to the contingency category and other reductions substituted as the Commonwealth is proposing with its SIP revision request, the state submittal fails to provide contemporaneous, equivalent, surplus, quantifiable and enforceable emissions reductions to offset those lost in the event of shutdown of the I/M program. This last concern will be the subject of the supplemental comments, which will be submitted prior to the close of the extended comment period once the state material is reviewed.


Tom FitzGerald

cc: John Lyons, DAQ,

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By Kentucky Resources Council on 05/18/2005 5:32 PM
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