[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Proposed Rules]
[Pages 14626-14631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6260]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2009-0426-201030; FRL-9282-6]
Approval and Promulgation of Implementation Plans; Kentucky;
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP), submitted by the Commonwealth of Kentucky, through the Division
of Air Quality (DAQ) of the Kentucky Environmental and Public
Protection Cabinet, now called the Energy and Environment Cabinet, as
demonstrating that the Commonwealth meets the requirements of sections
110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 1997 8-hour
ozone national ambient air quality standards (NAAQS). Section 110(a) of
the CAA requires that each state adopt and submit a SIP for the
implementation, maintenance and enforcement of each NAAQS promulgated
by the EPA and is commonly referred to as an ``infrastructure'' SIP.
Kentucky certified that the Kentucky SIP contains provisions that
ensure the 1997 8-hour ozone NAAQS are implemented, enforced, and
maintained in Kentucky (hereafter referred to as ``infrastructure
submission''). Kentucky's infrastructure submission, provided to EPA on
December 13, 2007, addressed all the required infrastructure elements
for the 1997 8-hour ozone NAAQS.
DATES: Written comments must be received on or before April 18, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-0426, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (404) 562-9140.
4. Mail: ``EPA-R04-OAR-2009-0426,'' 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.
5. Hand Delivery or Courier: Lynorae Benjamin, 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. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2009-0426. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in 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: Nacosta C. Ward, 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. The telephone number
is (404) 562-9140. Ms. Ward can also be reached via electronic mail at
[email protected].
Table of Contents
I. Background
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's analysis of how Kentucky addressed the elements
of Sections 110(a)(1) and (2) ``infrastructure'' provisions?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour
[[Page 14627]]
average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (see 62 FR
38856). Pursuant to section 110(a)(1) of the CAA, states are required
to submit SIPs meeting the requirements of section 110(a)(2) within
three years after promulgation of a new or revised NAAQS. Sections
110(a)(1) and (2) require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance of the NAAQS. States were required to submit
such SIPs for the 1997 8-hour ozone NAAQS to EPA no later than June
2000. However, intervening litigation over the 1997 8-hour ozone NAAQS
created uncertainty about how to proceed and many states did not
provide the required ``infrastructure'' SIP submission for these newly
promulgated NAAQS.
On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS.
EPA entered into a consent decree with Earthjustice which required EPA,
among other things, to complete a Federal Register notice announcing
EPA's determinations pursuant to section 110(k)(1)(B) as to whether
each state had made complete submissions to meet the requirements of
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007.
Subsequently, EPA received an extension of the date to complete this
Federal Register notice until March 17, 2008, based upon agreement to
make the findings with respect to submissions made by January 7, 2008.
In accordance with the consent decree, EPA made completeness findings
for each state based upon what the Agency received from each state as
of January 7, 2008.
On March 27, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans;
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or
failed to submit a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 8-hour
ozone NAAQS. See 73 FR 16205. For those states that did receive
findings, the findings of failure to submit for all or a portion of a
state's implementation plan established a 24-month deadline for EPA to
promulgate a Federal Implementation Plan (FIP) to address the
outstanding SIP elements unless, prior to that time, the affected
states submitted, and EPA approved, the required SIPs.
The findings that all or portions of a state's submission are
complete establish a 12-month deadline for EPA to take action upon the
complete SIP elements in accordance with section 110(k). Kentucky's
infrastructure submission was received by EPA on December 13, 2007, and
was determined to be complete on March 27, 2008. Kentucky was among
other states that did not receive findings of failure to submit because
it provided a complete submission to EPA to address the infrastructure
elements for the 1997 8-hour ozone NAAQS by March 1, 2008. Today's
action is proposing to approve Kentucky's infrastructure submission for
which EPA made the completeness determination on March 27, 2008. This
action is not approving any specific rule, but rather proposing that
Alabama's already approved SIP meets certain CAA requirements.
II. What elements are required under Sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 8-hour ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous ozone
NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below \1\ and in EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards.''
---------------------------------------------------------------------------
\1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title 1 of the CAA, and (2) submissions required by
section 110(a)(2)(1) which pertain to the nonattainment planning
requirements of part D, Title 1 of the CAA. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(1) or the nonattainment planning requirements of
110(a)(2)(C).
---------------------------------------------------------------------------
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
---------------------------------------------------------------------------
\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
---------------------------------------------------------------------------
110(a)(2)(D): Interstate transport.\3\
---------------------------------------------------------------------------
\3\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone
NAAQS. Interstate transport requirements were formerly addressed by
Kentucky consistent with the Clean Air Interstate Rule (CAIR). On
December 23, 2008, CAIR was remanded by the DC Circuit Court of
Appeals, without vacatur, back to EPA. See North Carolina v. EPA,
531 F.3d 896 (DC Cir. 2008). Prior to this remand, EPA took final
action to approve Kentucky's SIP revision, which was submitted to
comply with CAIR. See 72 FR 56623 (October 4, 2007). In so doing,
Kentucky's CAIR SIP revision addressed the interstate transport
provisions in Section 110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS. In response to the remand of CAIR, EPA has since proposed a
new rule to address the interstate transport of NOX and
SOX in the eastern United States. See 75 FR 45210 (Aug.
2, 2010) (``the Transport Rule''). However, because this rule has
yet to be finalized, EPA's action on element 110(a)(2)(D)(i) will be
addressed in a separate action.
---------------------------------------------------------------------------
110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
---------------------------------------------------------------------------
\4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' but
as mentioned above is not relevant to today's proposed rulemaking.
---------------------------------------------------------------------------
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
[[Page 14628]]
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
III. What is EPA's analysis of how Kentucky addressed the elements of
Sections 110(a)(1) and (2) ``infrastructure'' provisions?
Kentucky's infrastructure submission addresses the provisions of
sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A): Emission limits and other control measures:
Kentucky's infrastructure submission provides an overview of the
provisions of the Kentucky Air Regulations relevant to air quality
control regulations. The regulations described below have been
federally approved in the Kentucky SIP and include enforceable emission
limitations and other control measures. Chapter 50--Division for Air
Quality; General Administrative Procedures of the Kentucky Air
Regulations generally authorizes the Kentucky Environmental and Public
Protection Cabinet to adopt rules for the control of air pollution,
including those necessary to obtain EPA approval under section 110 of
the CAA. The most recent federally approved revision of this chapter
was on April 21, 2010 (75 FR 20780). Chapter 51--Attainment and
Maintenance of the National Ambient Air Quality Standards also includes
references to rules adopted by Kentucky to control air pollution,
including ozone precursors. The most recent federally approved revision
of Chapter 51 was on April 21, 2010 (75 FR 20780). EPA has made the
preliminary determination that the provisions contained in these
chapters and Kentucky's practices are adequate to protect the 1997 8-
hour ozone NAAQS in the Commonwealth.
In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during
startup, shutdown, or malfunction (SSM) of operations at a facility.
EPA believes that a number of states have SSM provisions which are
contrary to the CAA and existing EPA guidance, ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup,
and Shutdown'' (September 20, 1999), and the Agency plans to address
such state regulations in the future. In the meantime, EPA encourages
any state having deficient SSM provisions to take steps to correct them
as soon as possible.
Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality monitoring/data system:
Kentucky's infrastructure submission provides information in Chapter
50:050--Monitoring, with regard to the organization and structure of
the monitoring program that includes the local air quality programs.
These entities collect air monitoring data, quality assure the results
and report the data. The most recent federally approved revision of
this chapter was on July 12, 1982 (47 FR 30059). Chapter 51:010--
Attainment status designations includes information indicating
Kentucky's ozone monitor locations. The most recent federally approved
revision of this chapter was on July 24, 1998 (63 FR 39739). Annually,
EPA approves the ambient air monitoring network plan for the state
agencies. On June 30, 2010, the Commonwealth of Kentucky submitted its
plan to EPA, which also included the Louisville-Jefferson County local
monitoring program. On October 8, 2010, EPA approved Kentucky's
monitoring network plan. Kentucky's approved monitoring network plan
can be accessed at http://www.regulations.gov using Docket ID No. EPA-
R04-OAR-2009-0426. EPA has made the preliminary determination that
Kentucky's SIP and practices are adequate for the ambient air quality
monitoring and data system related to the 1997 8-hour ozone NAAQS.
3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: In Chapter 51:052--Review of
new sources in or impacting upon nonattainment areas of Kentucky's SIP,
a description of the compliance activities of the Commonwealth's
regional field offices and the one local agency in Jefferson County is
included. The most recent federally approved revision of this chapter
was on July 11, 2006 (71 FR 38990). It also includes a description of
the Commonwealth's statutory authority to enforce regulations relating
to attainment and maintenance of the 1997 8-hour ozone NAAQS.
Additionally, Kentucky submitted a SIP revision on February 4, 2010,
which addresses the Ozone Implementation New Source Review (NSR) Update
requirements to include nitrogen oxides (NOX) as an ozone
precursor for permitting purposes for prevention of significant
deterioration (PSD) and nonattainment NSR. Specifically, the Ozone
Implementation NSR Update requirements included changes to major source
thresholds for sources in certain classes of nonattainment areas,
changes to offset ratios for marginal, moderate, serious, severe, and
extreme ozone nonattainment areas, provisions addressing offset
requirements for facilities that shut down or curtail operation, and a
requirement stating that NOX emissions are ozone precursors.
EPA published a final action approving Kentucky's revisions which
incorporate NOX as an ozone precursor on September 15, 2010
(75 FR 55988). Chapter 52:030--Federally enforceable permits for non-
major sources describes how the Commonwealth's construction permits
program reviews proposed new major and minor sources of volatile
organic compounds (VOCs) and NOX for compliance with the 8-
hour ozone NAAQS.
EPA published a final action revising Kentucky's greenhouse gas
(GHG) regulations on December 29, 2010 (75 FR 81868). The revisions
include two significant changes impacting the regulation of GHGs under
Kentucky's NSR/PSD program; (1) provides the Commonwealth with
authority to issue PSD permits governing GHGs, and (2) establishes
appropriate emission thresholds for determining which new stationary
sources and modification projects become subject to Kentucky's PSD
permitting requirements for its GHG emissions. EPA has made the
preliminary determination that Kentucky's SIP and practices are
adequate for program enforcement of control measures including review
of proposed new sources related to the 1997 8-hour ozone NAAQS.
In this action, EPA is proposing to approve Kentucky's
infrastructure SIP for the 8-hour ozone NAAQS with respect to the
general requirement in section 110(a)(2)(C) to include a program in the
SIP that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. EPA is not
proposing to approve or disapprove the state's existing minor NSR
program itself to the extent that it is inconsistent with EPA's
regulations governing this program. EPA believes that a number of
states may have minor NSR provisions that are contrary to the existing
EPA regulations for this program. EPA intends to work with states to
reconcile state minor NSR programs with EPA's regulatory provisions for
the program.
[[Page 14629]]
The statutory requirements of section 110(a)(2)(C) provide for
considerable flexibility in designing minor NSR programs, and EPA
believes it may be time to revisit the regulatory requirements for this
program to give the states an appropriate level of flexibility to
design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
EPA has made the preliminary determination that Kentucky's SIP and
practices are adequate for program enforcement of control measures
including review of proposed new sources related to the 1997 8-hour
ozone NAAQS.
4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: In Chapter 51:017--Prevention of significant deterioration
of air quality, Kentucky outlines how it will notify neighboring states
of potential impacts from new or modified sources. Kentucky does not
have any pending obligation under section 115 and 126. Additionally, it
has federally approved regulations in its SIP that satisfy the
requirements for the NOX SIP Call. See 67 FR 17624 (April
11, 2002). EPA has made the preliminary determination that Kentucky's
SIP and practices are adequate for insuring compliance with the
applicable requirements relating to interstate and international
pollution abatement for the 1997 8-hour ozone NAAQS.
5. 110(a)(2)(E) Adequate resources: The Kentucky DAQ is responsible
for adopting air quality rules, revising SIPs, developing and tracking
the budget, establishing the title V fees, and other planning needs.
Additionally, Kentucky DAQ coordinates agreements with the local air
pollution control program for Jefferson County, the Louisville Metro
Air Pollution Control District. Annually, states update these grant
commitments based on current SIP requirements, air quality planning and
applicable requirements related NAAQS, including the 1997 8-hour ozone
NAAQS. On May 6, 2010, EPA submitted a letter to the Commonwealth
outlining 105 grant commitments and current status of those commitments
for fiscal year 2009. The letter EPA submitted to Kentucky can be
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2009-0426. There were no outstanding issues, therefore the
Commonwealth's grants were finalized and closed out. EPA has made the
preliminary determination that Kentucky has adequate resources for
implementation of the 1997 8-hour ozone NAAQS.
6. 110(a)(2)(F) Stationary source monitoring system: Kentucky's
infrastructure submission describes how the major source and minor
source emission inventory programs collect emission data throughout the
Commonwealth (including Jefferson County) and ensure the quality of
data. These programs generate data for ozone precursors (VOCs and
NOX) and summarize emissions from point, area, mobile, and
biogenic (natural) sources. Kentucky DAQ uses these data to track
progress towards maintaining the NAAQS, develop control and maintenance
strategies, identify sources and general emission levels, and determine
compliance with emission regulations and additional EPA requirements.
This is outlined in Chapter 50:050--Monitoring of the Kentucky Air
Regulations.
Additionally, the National Emissions Inventory (NEI) is EPA's
central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory System
(EIS). States report emissions data for the six criteria pollutants and
the precursors that form them--nitrogen oxides, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Kentucky made its latest update to the NEI on
February 17, 2011. EPA compiles the emissions data, supplementing it
where necessary, and releases it to the general public through the Web
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the
preliminary determination that Kentucky's SIP and practices are
adequate for the stationary source monitoring systems related to the
1997 8-hour ozone NAAQS.
7. 110(a)(2)(G) Emergency power: Kentucky's infrastructure
submission provides an overview of the Kentucky Air Regulations,
specifically Chapter 55--Emergency Episodes which identifies air
pollution emergency episodes and preplanned abatement strategies. The
episode criteria specified in this chapter for ozone are based on a 1-
hour average ozone level at a monitoring site. These criteria have
previously been approved by EPA. EPA has made the preliminary
determination that these criteria are adequate to address ozone
emergency episodes for the 1997 8-hour ozone NAAQS. As a result, EPA
has made the preliminary determination that Kentucky's SIP and
practices are adequate for emergency powers related to the 1997 8-hour
ozone NAAQS.
8. 110(a)(2)(H) Future SIP revisions: As previously discussed,
Kentucky's DAQ is responsible for adopting air quality rules and
revising SIPs as needed to attain or maintain the NAAQS . Kentucky has
the ability and authority to respond to calls for SIP revisions, and
has provided a number of SIP revisions over the years for
implementation of the NAAQS. Specific to the 1997 8-hour ozone NAAQS,
Kentucky has provided the following submissions:
May 20, 2005, SIP Revision (EPA approval, see 71 FR 4047,
January 25, 2006)--Redesignation request and 175A maintenance plan for
the Clarksville-Hopkinsville, TN-KY Area;
September 29, 2006, SIP revision (EPA approval, see 72 FR
36601, July 5, 2007)--Redesignation request and 175A maintenance plan
for the Louisville Area;
September 29, 2006, SIP revision (EPA approval, see 72 FR
43172, August 3, 2007)--Redesignation request and 175A maintenance plan
for the Huntington-Ashland, WV-KY Area;
May 27, 2008, SIP revision--110(a)(1) Maintenance plans
for a portion of Greenup County, Lexington Area, Owensboro Area,
Edmonson County and the Paducah Area (EPA approval of the Paducah Area,
see 75 FR 52467, August 27, 2010);
January 29, 2010, SIP revision (EPA approval, see 75 FR
47218, August 5, 2010)--Redesignation request and 175A maintenance plan
for the Northern Kentucky portion of the Cincinnati Area; and
February 4, 2010, SIP revision (EPA approval, see 75 FR
55988, September 15, 2010) NOX as a precursor.
In all of Kentucky's 175A maintenance plans, the Commonwealth
commits to provide additional SIP revisions for the 1997 8-hour ozone
NAAQS pursuant to 175(A)(b), and also commits to provide additional SIP
revisions to implement contingency measures should one of the areas
that was redesignated to attainment violate the 1997 8-hour ozone
NAAQS. EPA has made the preliminary determination that Kentucky's SIP
and practices
[[Page 14630]]
adequately demonstrate a commitment to provide future SIP revisions
related to the 1997 8-hour ozone NAAQS when necessary.
9. 110(a)(2)(J) (121 consultation) Consultation with government
officials: Kentucky Air Regulations Chapter 50--Division for Air
Quality; General Administrative Procedures of the Kentucky Air
Regulations and Chapter 51--Attainment and Maintenance of the National
Ambient Air Quality Standards provide for consultation with government
officials whose jurisdictions might be affected by SIP development
activities. More specifically, Kentucky adopted state-wide consultation
procedures for the implementation of transportation conformity which
includes the consideration of the development of mobile inventories for
SIP development. Required partners covered by Kentucky's consultation
procedures include federal, state and local transportation and air
quality agency officials. EPA approved Kentucky's consultation
procedures on September 15, 2010 (75 FR 55988). Additionally, DAQ
submitted a regional haze plan which outlines its consultation
practices with Federal Land Managers. EPA has made the preliminary
determination that Kentucky's SIP and practices adequately demonstrate
consultation with government officials related to the 1997 8-hour ozone
NAAQS when necessary.
10. 110(a)(2)(J) (127 public notification) Public notification: The
Commonwealth's emergency episode provisions provide for notification to
the public when the NAAQS, including the ozone NAAQS, are exceeded.
This is also discussed above in 110(a)(2)(G). Additionally, the
Commonwealth reports daily air quality information on its state Web
site at: http://air.ky.gov/Pages/AirQualityIndexMonitoring.aspx to
inform the public on the existing air quality within the Commonwealth.
EPA has made the preliminary determination that Kentucky's SIP and
practices adequately demonstrate the Commonwealth's ability to provide
public notification related to the 1997 8-hour ozone NAAQS when
necessary.
11. 110(a)(2)(J) (PSD) PSD and visibility protection: Kentucky
demonstrates its authority to regulate new and modified sources of
ozone precursors (VOCs and NOX) to assist in the protection
of air quality in Kentucky Air Regulations Chapter 51:017--Prevention
of significant deterioration of air quality. Kentucky submitted a SIP
revision on February 4, 2010, which addresses the Ozone Implementation
NSR Update requirements to include NOX as an ozone precursor
for permitting purposes. Specifically, the Ozone Implementation NSR
Update requirements included changes to major source thresholds for
sources in certain classes of nonattainment areas, changes to offset
ratios for marginal, moderate, serious, severe, and extreme ozone
nonattainment areas, provisions addressing offset requirements for
facilities that shut down or curtail operation, and a requirement
stating that NOX emissions are ozone precursors. This SIP
revision incorporates changes to Chapter 51:052--Review of new sources
in or impacting upon nonattainment areas and Chapter 51:017--Prevention
of Significant Deterioration of air quality. This action was proposed
on April 1, 2010 (75 FR 16388). EPA published a final action approving
Kentucky's revisions to incorporate changes to Chapter 51:052 and
Chapter 51:017. September 15, 2010 (75 FR 55988).
With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under Part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS; however, the visibility and regional haze program
requirements under part C do not change. Thus, EPA finds that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because this NAAQS would not affect visibility requirements under part
C. Kentucky has submitted a SIP revision for approval to satisfy the
requirements of the CAA Section 169A, and the regional haze and best
available retrofit technology rules contained in 40 CFR 51.308. This
SIP revision is currently under review and will be acted on in a
separate action. EPA has made the preliminary determination that
Kentucky's SIP and practices adequately demonstrate the Commonwealth's
ability to implement PSD programs and to provide for visibility
protection related to the 1997 8-hour ozone NAAQS when necessary.
12. 110(a)(2)(K) Air quality and modeling/data: Kentucky conducts
air quality modeling and reports the results of such modeling to EPA,
as set forth in Kentucky Air Regulations Chapter 50:040--Air quality
models. This regulation shows that ambient ozone monitoring is used, in
conjunction with pre- and post-construction ambient air monitoring, to
track local and regional scale changes in ozone concentrations.
Additionally, Kentucky supports a regional effort to coordinate the
development of emissions inventories and conduct regional modeling for
several NAAQS, including the 1997 8-hour ozone NAAQS, for the
Southeastern states. Taken as a whole, the Commonwealth's air quality
regulations demonstrate that DAQ has the authority to provide relevant
data for the purpose of predicting the effect on ambient air quality of
the 8-hour ozone NAAQS. EPA has made the preliminary determination that
Kentucky's SIP and practices adequately demonstrate the Commonwealth's
ability to provide for air quality and modeling, along with analysis of
the associated data, related to the 1997 8-hour ozone NAAQS when
necessary.
13. 110(a)(2)(L) Permitting fees: Kentucky addresses the review of
construction permits as previously discussed in 110(a)(2)(C) above.
Permitting fees are collected through the Commonwealth's title V fees
program, which has been federally approved. EPA has made the
preliminary determination that Kentucky's SIP and practices adequately
provide for permitting fees related to the 1997 8-hour ozone NAAQS when
necessary.
14. 110(a)(2)(M) Consultation/participation by affected local
entities: The Kentucky DAQ coordinates with local governments affected
by the SIP. More specifically, Kentucky adopted state-wide consultation
procedures for the implementation of transportation conformity which
includes the consideration of the development of mobile inventories for
SIP development and the requirements that link transportation planning
and air quality planning in nonattainment and maintenance areas. EPA
approved these procedures in Chapter 50:066 Conformity of
transportation plans, programs, and projects (Amendment) on April 21,
2010 (75 FR 20180). Required partners covered by Kentucky's
consultation procedures include federal, state and local transportation
and air quality agency officials. The state and local transportation
agency officials are most directly impacted by transportation
conformity requirements and are required to provide public involvement
for their activities including the analysis of how the Commonwealth
meets transportation conformity requirements. Additionally, Chapter
65--Mobile Source-Related Emissions also discusses consultation related
activities specifically related to mobile sources. EPA has made the
preliminary determination that Kentucky's SIP and practices adequately
demonstrate consultation by affected
[[Page 14631]]
local entities related to the 1997 8-hour ozone NAAQS when necessary.
IV. Proposed Action
As described above, the Commonwealth of Kentucky has addressed the
elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to
EPA's October 2, 2007, guidance to ensure that the 1997 8-hour ozone
NAAQS are implemented, enforced, and maintained in Kentucky. EPA is
proposing to approve Kentucky's infrastructure submission for the 1997
8-hour ozone NAAQS because this submission is consistent with section
110 of the CAA.
V. 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
proposed 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 proposed 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 proposed 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 Commonwealth, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 7, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-6260 Filed 3-16-11; 8:45 am]
BILLING CODE 6560-50-P