[Federal Register: October 23, 2009 (Volume 74, Number 204)]
[
Rules and Regulations]
[Page 54755-54757]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc09-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2005-KY-0003; FRL-8972-2]
Approval and Promulgation of Implementation Plans; Kentucky:
NOX SIP Call Phase II
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve the State Implementation
Plan (SIP) revisions submitted by the Commonwealth of Kentucky on
September 12, 2005, and March 24, 2006. The first revision provides
Kentucky's response to EPA's regulations entitled, ``Finding of
Significant Contribution and Rulemaking for Certain States in Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone,'' otherwise known as the ``Nitrogen Oxides
(NOX) SIP Call Phase I.'' The second revision responds to
EPA's regulations entitled, ``Interstate Ozone Transport: Response to
Court Decisions on the NOX SIP Call, NOX SIP Call
Technical Amendments, and Section 126 Rules,'' otherwise known as the
``NOX SIP Call Phase II.'' EPA proposed to approve
Kentucky's request to revise the SIP on May 29, 2009. This action is
being taken pursuant to Section 110 of the Clean Air Act (CAA).
DATES: Effective Date: This rule will be effective November 23, 2009.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R04-OAR-2005-KY-0003. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information 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 through http://www.regulations.gov 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
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30 excluding Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Deanne Grant, 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. The telephone number is (404)
562-9291. Ms. Grant can also be reached via electronic mail at
grant.deanne@epa.gov. For information relating to the Kentucky SIP,
please contact Mr. Zuri Farngalo at (404) 562-9152. Mr. Farngalo can
also be reached via electronic mail at farngalo.zuri@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. EPA's Action
II. Background
III. Final Action
IV. Statutory and Executive Order Reviews
I. EPA's Action
EPA is taking final action to approve SIP revisions submitted by
the Commonwealth of Kentucky on September 12, 2005, and March 24, 2006.
The first revision provides Kentucky's response to EPA's regulations
entitled, ``Finding of Significant Contribution and Rulemaking for
Certain States in Ozone Transport Assessment Group Region for Purposes
of Reducing Regional Transport of Ozone,'' otherwise known as the
``Nitrogen Oxides (NOX) SIP Call Phase I.'' The second
revision responds to EPA's regulations entitled, ``Interstate Ozone
Transport: Response to Court Decisions on the NOX SIP Call,
NOX SIP Call Technical Amendments, and Section 126 Rules,''
otherwise known as the ``NOX SIP Call Phase II.''
The NOX SIP Call Phase II revision satisfies EPA's rule
that requires Kentucky to submit Phase II revisions necessary to
achieve applicable, incremental reductions of NOX. The
intended effect of the Phase II SIP revision is to reduce emissions of
NOX originating in the Commonwealth of Kentucky to help
attain and maintain the national ambient air quality standard for
ozone. The March 24, 2006, final submittal stopped the Federal
implementation plan (FIP) clock that started on February 8, 2006, when
EPA made a finding that Kentucky failed to submit the required SIP for
Phase II of the NOX SIP Call by April 1, 2005.
EPA proposed to approve Kentucky's request to amend the SIP on May
29, 2009 (74 FR 25686). In that proposal, EPA also stated its intent to
remove compliance requirements of the NOX SIP Call Phase I.
The comment period closed on June 29, 2009. No comments were received
in regard to this action. EPA is finalizing the approval as proposed
based on the rationale stated in the proposal and in this final action.
II. Background
On January 31, 2002, the Kentucky Environmental and Public
Protection Cabinet (KEPPC) submitted final revisions to its SIP that
complied with the requirements of Phase I of the NOX SIP
Call. EPA approved the revisions on April 11, 2002 (67 FR 17624), which
[[Page 54756]]
became effective on June 10, 2002. On April 21, 2004, EPA published a
final rule, addressing the remanded portion of the NOX SIP
Call Rule. This rule is entitled, ``Interstate Ozone Transport:
Response to Court Decisions on the NOX SIP Call,
NOX SIP Call Technical Amendments, and Section 126 Rules,''
and is otherwise known as the ``NOX SIP Rule Phase II'' (69
FR 21604). Phase II of the NOX SIP Call required Kentucky to
reduce the Phase I NOX emissions originating in the
Commonwealth from 165,075 tons (Phase I Budget) to 162,519 tons (Phase
II Budget) of NOX emissions. (69 FR 21604, 21629, April 21,
2004). However, EPA approved a revised Phase I Budget for Kentucky in a
revision to the NOX SIP Call submitted on April 11, 2002 (67
FR 17624). Therefore, the final Kentucky Phase II Budget in the April
21, 2004, notice is inaccurate because it is based on the previous
Phase I Budget. The current approved Kentucky Phase II Budget for
NOX emissions is 162,863 tons.
On January 23, 2004, EPA wrote a letter to KEPPC clarifying that
based on current rules and regulations, including the NOX
SIP Call Phase I rulemaking (63 FR 57356, 57416) and 40 CFR 96.2, EPA
was allowing each State with one or more carbon monoxide (CO) boiler
combusting CO from fluidized catalytic cracking units (FCCUs) to
determine whether all of the Commonwealth's FCCU-CO boilers were
covered by the NOX SIP Call trading program. There is
currently only one facility in Kentucky with FCCU-CO boilers (the
Ashland Oil facility, located in Ashland, Kentucky). Kentucky elected
to exclude all FCCU-CO boilers in the Commonwealth from the
NOX trading program. Today's action removes the requirement
from the Kentucky SIP that such units comply with the NOX
SIP Call Phase I by exempting them from the non-EGU portion of the
Kentucky NOX budget. However, Kentucky is still able to meet
the Phase II budgets through other reductions. For more information
regarding the specifics of Phase I source categories and budgets, see
67 FR 17624 (April 11, 2002).
On September 12, 2005, the KEPPC provided a submittal for parallel
processing of its SIP regulation revisions, intended to meet the
requirements of the NOX SIP Call Phase II. A public hearing
was conducted on October 21, 2005. On March 24, 2006, Kentucky
submitted the final SIP revision for approval. The March 24, 2006,
submittal stopped the FIP clock that started under the CAA following
EPA's February 8, 2006, finding that Kentucky failed to submit the
required SIP revisions for Phase II of the NOX SIP Call by
April 1, 2005 (71 FR 6347, February 8, 2006).
III. Final Action
EPA is taking final action to approve the aforementioned changes to
the SIP, including Kentucky's NOX SIP Call Phase II budget.
These revisions meet CAA requirements and are consistent with EPA
policy and regulations.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
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 action 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 22, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: October 9, 2009.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
0
40 CFR part 52 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.
[[Page 54757]]
Subpart S--Kentucky
0
2. In Sec. 52.920(c), Table 1 is amended:
0
a. Under Chapter 51, by adding an entry for ``401 KAR 51:150--
NOX requirements for stationary internal combustion
engines''; and
0
b. Under Chapter 51, by revising the entry for ``401 KAR 51:160--
NOX requirements for large utility and industrial boilers''
to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA-Approved Kentucky Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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* * * * * * *
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Chapter 51. Attainment and Maintenance of the National Ambient Air Quality Standards
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* * * * * * *
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401 KAR 51:150.................. NOX requirements 2/3/06 10/23/09 [Insert
for stationary citation of
internal publication]
combustion engines.
* * * * * * *
401 KAR 51:160.................. NOX requirements 2/3/06 10/23/09 [Insert
for large utility citation of
and industrial publication]
boilers.
* * * * * * *
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[FR Doc. E9-25456 Filed 10-22-09; 8:45 am]
BILLING CODE 6560-50-P