Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky; Prevention of Significant Deterioration and Nonattainment New Source Review Rules: Nitrogen Oxide as Precursor to Ozone, 55988-55991 [2010-22856]

Download as PDF 55988 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations EPA APPROVED REGULATIONS IN THE TEXAS SIP State citation State approval/submittal date Title/subject * * * * EPA approval date * * Explanation * Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification * * * * * * * * * Subchapter B—New Source Review Permits * * * * * Division 6—Prevention of Significant Deterioration Review Section 116.160 ........ Prevention of Significant Deterioration Requirements. * * * * * * * * [FR Doc. 2010–22672 Filed 9–14–10; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2009–1014–201026; FRL– 9201–1] Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky; Prevention of Significant Deterioration and Nonattainment New Source Review Rules: Nitrogen Oxide as Precursor to Ozone Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is taking final action to approve a revision to the Commonwealth of Kentucky’s State Implementation Plan (SIP), submitted to EPA by the Kentucky Energy and Environment Cabinet, through the Kentucky Division for Air Quality (KDAQ), on February 5, 2010. The revision modifies Kentucky’s prevention of significant deterioration (PSD) and nonattainment new source review (NNSR) permitting regulations in Kentucky’s SIP to address permit requirements promulgated in the 1997 8-Hour Ozone National Ambient Air Quality Standards (NAAQS) Implementation Rule—Phase II (hereafter referred to as the ‘‘Ozone Implementation NSR Update’’). The Ozone Implementation NSR Update revised permit requirements relating to the implementation of the 1997 8-hour mstockstill on DSKH9S0YB1PROD with RULES SUMMARY: VerDate Mar<15>2010 18:17 Sep 14, 2010 Jkt 220001 6/2/2010 * 9/15/2010 [Insert FR page number where document begins]. * ozone NAAQS, specifically, incorporating nitrogen oxides (NOX) as a precursor to ozone. EPA’s approval of Kentucky’s provisions to include NOX as an ozone precursor into the Kentucky SIP is based on EPA’s determination that Kentucky’s SIP revision related to these provisions complies with Federal requirements. EPA is also addressing the general adverse comments received on EPA’s proposal to approve NOX as an ozone precursor for permitting purposes into the Kentucky SIP. The February 5, 2010, SIP revision also included provisions to exclude facilities that produce ethanol through a natural fermentation process from the definition of ‘‘chemical process plants’’ in the NSR major source permitting program in the Kentucky SIP. EPA also received adverse comments for its proposal to approve these provisions. At this time, EPA is not taking final action on Kentucky’s provisions to exclude facilities that produce ethanol through a natural fermentation process from the definition of ‘‘chemical process plants’’ in the NSR major source permitting program. EPA will consider the comments received regarding these provisions and take any final action for these provisions in a separate rulemaking. Effective Date: This rule will be effective October 15, 2010. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR– 2009–1014. All documents in the docket are listed on the https:// www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential DATES: PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 * * 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 https:// 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: For information regarding the Kentucky SIP, contact Ms. Twunjala Bradley, 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. Ms. Bradley can be reached via telephone at (404) 562–9352 and electronic mail at bradley.twunjala@epa.gov. For information regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the same address above. Ms. Adams can be reached via telephone at (404) 562– 9214 and electronic mail at adams.yolanda@epa.gov. For information regarding 8-hour ozone NAAQS, contact Ms. Jane Spann, Regulatory Development Section, at the E:\FR\FM\15SER1.SGM 15SER1 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations same address above. Ms. Spann can be reached via telephone at (404) 562–9029 and electronic mail at spann.jane@epa.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Today’s Action III. Comments and Responses IV. Final Action V. Statutory and Executive Order Reviews I. Background mstockstill on DSKH9S0YB1PROD with RULES On February 5, 2010, the Commonwealth of Kentucky, through KDAQ, submitted a revision to the Kentucky SIP which relates to Kentucky’s Air Quality Regulations, Chapter 51—401 Kentucky Administrative Regulation (KAR) 51:001 ‘‘Definitions for 401 KAR Chapter 51,’’ 401 KAR 51:017 ‘‘Prevention of Significant Deterioration of Air Quality,’’ and 401 KAR 51:052 ‘‘Review of New Sources in or Impacting upon Nonattainment Areas.’’ The SIP revision addressed various issues.1 This final action addresses only one component of the February 5, 2010, submittal—the Ozone Implementation NSR Update requirements, as contained in 40 Code of Federal Regulations (CFR) 51.165 and 51.166, and promulgated on November 29, 2005, as part of EPA’s Ozone Implementation NSR Update. On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of 0.08 parts per million—also referred to as the 1997 8-hour ozone NAAQS. On April 30, 2004, EPA designated areas as attainment, nonattainment and unclassifiable for the 1997 8-hour ozone NAAQS. As part of the 2004 designations, EPA also promulgated an implementation rule for the 1997 8-hour ozone NAAQS in two phases. Phase I of EPA’s 1997 8-hour ozone implementation rule (Phase 1 Rule), published on April 30, 2004, and effective on June 15, 2004, provided the implementation requirements for 1 Kentucky’s February 5, 2010, SIP revision also included provisions for excluding facilities that produce ethanol through a natural fermentation process from the definition of ‘‘chemical process plants’’ in the NSR major source permitting program. In an action published on April 1, 2010 (75 FR 16388), EPA proposed to approve the aforementioned revisions into the Kentucky SIP. At this time, EPA is not taking action on the ethanol provisions. On a separate, unrelated issue, the rule revisions provided in Kentucky’s February 5, 2010, submittal also requested the removal of certain provisions for clean units (CU) and pollution control projects (PCP), which were vacated by the United States Court of Appeals for the District of Columbia Circuit. EPA has not previously taken action to approve that portion of Kentucky’s submittal (regarding the vacated rules) and EPA is not now taking action on those provisions. VerDate Mar<15>2010 18:17 Sep 14, 2010 Jkt 220001 designating areas under subpart 1 and subpart 2 of the CAA. See 69 FR 23857. On November 29, 2005, EPA promulgated the second phase for implementation provisions related to the 1997 8-hour ozone NAAQS—also known as the Phase II Rule. See 70 FR 71612. The Phase II Rule addressed control and planning requirements as they applied to areas designated nonattainment for the 1997 8-hour ozone NAAQS which included NSR requirements. Specific to this rulemaking, the Phase II Rule made changes to Federal regulations 40 CFR 51.165 and 51.166, which govern the NNSR and PSD permitting programs. The revisions to the NSR permitting requirements in the Phase II Rule are also known as the Ozone Implementation NSR Update. Specifically, the Phase II Rule requirements included, among other changes, a new provision stating that NOX is an ozone precursor. See 70 FR 71612, (page 71679) (November 29, 2005). In the Phase II Rule, EPA stated as follows: ‘‘The EPA has recognized NOX as an ozone precursor in several national rules because of its contribution to ozone transport and the ozone nonattainment problem. The EPA’s recognition of NOX as an ozone precursor is supported by scientific studies, which have long recognized the role of NOX in ozone formation and transport. Such formation and transport is not limited to nonattainment areas. Therefore, we believe NOX should be treated consistently as an ozone precursor in both our PSD and nonattainment NSR regulations. For these reasons we have promulgated final regulations providing that NOX is an ozone precursor * * *’’ In the Phase II Rule, EPA established that states must submit SIPs incorporating required changes (including the addition of NOX as a precursor for ozone) no later than June 15, 2007. See 70 FR 71612 (page 71683). On February 5, 2010, Kentucky submitted a revision to include NOX as a precursor for ozone for PSD and NNSR permitting purposes in order to comply with the Phase II Rule. II. Today’s Action EPA has determined that Kentucky’s February 5, 2010, SIP revision revising Kentucky’s PSD and NNSR permit programs is consistent with changes to the Federal NSR requirements (40 CFR 51.165 and 51.166, and the Phase II Rule) relating to the incorporation of NOX as an ozone precursor. The revision, which became state-effective on February 5, 2010, is included in Kentucky’s PSD and NNSR programs and meets the requirements of the Phase PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 55989 II Rule by identifying NOX as a precursor for ozone.2 EPA received comments on its proposal to approve the Kentucky SIP revision to incorporate NOX as a precursor for ozone, on April 29, 2010, from the Law Office of Robert Ukeiley on behalf of the Sierra Club and Valley Watch, Incorporated. The comments opposed approval of the SIP revision. EPA’s responses to these comments can be found in Section III of this rulemaking. III. Comments and Responses On April 29, 2010, EPA received a letter providing comments on EPA’s proposal to approve Kentucky’s February 5, 2010, SIP revision to include NOX as a precursor for ozone for PSD and NNSR purposes. Below is a summary of the comments and EPA’s response. Comments: 3 The comments acknowledged that ‘‘[t]his revision is long overdue;’’ however, the comments further stated that, ‘‘EPA should not approve Kentucky’s revision just because it is ‘‘line-by-line’’ consistent with the federal rules.’’ The comments expressed concerns regarding Kentucky’s implementation of modeling requirements for ozone, particularly in reference to certain coalfired utilities in Kentucky (that were specifically identified in the letter), and for those reasons, the Commenter appears to oppose the SIP revision. The Commenter explains that ‘‘[t]his proposed rulemaking is EPA’s opportunity to provide Kentucky with much-needed direction on how to ensure air quality does not further degrade.’’ One basis for the Commenter’s concerns appears to be his position on Kentucky’s attainment status for the ozone NAAQS as well as some permitting activities. The Commenter explains his position on Kentucky’s alleged noncompliance with ozone requirements particularly with regard to issuing permits for major new sources of air pollution. The concerns seemed focused on ozone related modeling and monitoring. Further, the Commenter explains his concerns regarding ozone preconstruction monitoring at certain stationary sources. The Commenter concludes by explaining that ‘‘[t]he proposed SIP 2 The Kentucky rules were formatted to conform to Kentucky rule drafting standards (KRS Chapter 13A), but in substantive content the rules are the same as the Federal rules. 3 A full text of the comments is available in the Docket for this action. Electronic docket information can be found in the ‘‘Addresses’’ portion of this notice. The comments are summarized in this document; however, EPA considered all the comments expressed in the letter. E:\FR\FM\15SER1.SGM 15SER1 55990 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations mstockstill on DSKH9S0YB1PROD with RULES revision is EPA’s opportunity to work with the state of Kentucky to design a program that will help Kentucky achieve present and future attainment with ozone standards.’’ The Commenter requests that EPA (1) not approve the SIP revision until Kentucky agrees to make serious efforts at attaining and assuring continuing attainment with the ozone standards; and (2) use its powers under CAA Section 167 to prevent construction of three major sources of ozone precursor pollution (identified in the letter). Response: EPA’s Phase II Rule required states to add NOX as a precursor for ozone to their SIPs. EPA explained the basis for that decision in the Phase II Rule, which is part of the CAA program to improve air quality and reduce ground-level ozone. The air quality benefits were the primary basis for EPA’s final action in the Phase II Rule requiring states to incorporate NOX as a precursor for ozone in their SIPs. See 68 FR 32802 (proposal); 70 FR 71612, 71674, 71679 (final Phase II Rule). The Commenter acknowledges that this action is ‘‘overdue’’ and recognizes that NOX is in fact a precursor for ozone. While the comments are adverse in the sense that they request that EPA not approve the SIP revision, the comments provide no scientific or legal basis for EPA to disapprove Kentucky’s February 5, 2010, SIP revision. The comments are focused on concerns about Kentucky’s major source air program, and include no specific information explaining why adding NOX as a precursor to ozone in Kentucky’s PSD and NNSR programs is contrary to the CAA or its implementing regulations. Notably, the Commenter has raised similar concerns in response to other actions (e.g., permit revisions and other SIP revisions), including a lawsuit against EPA seeking EPA to use Clean Air Act Section 167 at certain coal-fired utilities in Kentucky. In a letter dated April 17, 2009 (which was resubmitted on January 20, 2010), the Commenter provided adverse comments to EPA regarding a separate (and unrelated) proposed approval actions for four Kentucky 110(a)(1) maintenance plans, stating ‘‘the Kentucky PSD program only requires that sources conduct ambient monitoring and impact analysis when a source is over 100 tons per year of [volatile organic compounds]. See 401 KAR 51:017 § 7(5)(a). The Kentucky PSD program illegally leaves out major sources of NOX. Id.’’ In that separate action, the Commenter supported disapproval based on NOX not being listed as an ozone precursor in the Kentucky SIP. VerDate Mar<15>2010 18:17 Sep 14, 2010 Jkt 220001 Nonetheless, in this action to incorporate NOX as a precursor for ozone, the same Commenter is opposing the action. Commenter appears to be trying to achieve changes not directly related to the SIP revision at issue, but more specifically focused on certain major stationary sources identified in the letter. These other actions have their own independent regulatory processes wherein Commenter has other opportunities to raise concerns and seek changes. EPA’s action to approve NOX as a precursor for ozone in Kentucky supports the improvement of air quality in Kentucky, in part because of the associated modeling and monitoring requirements. EPA’s approval of this SIP revision ensures that Kentucky’s PSD and NNSR permit programs are consistent with the Federal NSR permit requirements (40 CFR 51.165 and 51.166) relating to the incorporation of NOX as an ozone precursor set forth in the Phase II Rule. IV. Final Action Pursuant to Section 110 of the CAA, EPA is taking final action to approve Kentucky’s SIP revision submitted February 5, 2010, which incorporates NOX as an ozone precursor for PSD and NNSR purposes into the Kentucky SIP. The revision included in Kentucky’s PSD and NNSR programs is equivalent to the provision in the Ozone Implementation NSR Update. EPA is approving these revisions into the Kentucky SIP because they are consistent with the CAA and its implementing regulations. 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 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.); PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 • 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 November 15, 2010. Filing a petition for reconsideration by the E:\FR\FM\15SER1.SGM 15SER1 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 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).) reference, Ozone, Volatile organic compounds. Subpart S—Kentucky Dated: September 1, 2010. Beverly H. Banister, Acting Regional Administrator, Region 4. ■ ■ 40 CFR part 52 is amended as follows: 2. Section 52.920(c) Table 1 is amended by revising the entries for ‘‘401 KAR 51:001,’’ ‘‘401 KAR 51:017,’’ and ‘‘401 KAR 51:052’’ to read as follows: § 52.920 * PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: ■ List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by 55991 Identification of plan. * * (c) * * * * * Authority: 42 U.S.C. 7401 et seq. TABLE 1—EPA-APPROVED KENTUCKY APPROVED KENTUCKY REGULATIONS State citation Title/subject * * State effective date * EPA approval date * Explanation * * * Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards 401 KAR 51:001 ......... * Definitions for 401 KAR Chapter 51. * 2/5/2010 * 9/15/2010 [Insert citation of publication]. * * * 401 KAR 51:017 ......... Prevention of significant deterioration of air quality. 2/5/2010 9/15/2010 [Insert citation of publication]. 401 KAR 51:052 ......... Review of new sources in or impacting upon nonattainment areas. 2/5/2010 9/15/2010 [Insert citation of publication]. * * * * * * * * * BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY mstockstill on DSKH9S0YB1PROD with RULES 40 CFR Part 180 [EPA–HQ–OPP–2006–0121; FRL–8839–3] Ammonium Formate; Exemption from the Requirement of a Tolerance Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: VerDate Mar<15>2010 18:17 Sep 14, 2010 This regulation establishes an exemption from the requirement of a tolerance for residues of ammonium formate (CAS Reg. No. 540–69–2) when used as an inert ingredient (complexing or fixing agent with copper compounds) in pesticide formulations for certain preharvest uses. Phyton Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of ammonium formate. Jkt 220001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 * Except the phrase ‘‘except ethanol production facilities producing ethanol by natural fermentation under the North American Industry Classification System (NAICS) codes 325193 or 312140;’’ in 401 KAR 51:017 Section 7(1)(c)20. Except the phrase ‘‘except ethanol production facilities producing ethanol by natural fermentation under the North American Industry Classification System (NAICS) codes 325193 or 312140,’’ in 401 KAR 51:052 Section 2 (3)(t). * SUMMARY: [FR Doc. 2010–22856 Filed 9–14–10; 8:45 am] Except the phrase ‘‘except ethanol production facilities producing ethanol by natural fermentation under the North American Industry Classification System (NAICS) codes 325193 or 312140,’’ in 401 KAR 51:001 Section 1 (118)(1)(b)(i) and the phrase ‘‘except ethanol production facilities producing ethanol by natural fermentation under NAICS codes 325193 or 312140,’’ in 401 KAR 51:001 Section 1(118) (2)(c)(20). * * This regulation is effective September 15, 2010. Objections and requests for hearings must be received on or before November 15, 2010, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION). ADDRESSES: EPA has established a docket for this action under docket identification (ID) number EPA–HQ– OPP–2006–0121. All documents in the docket are listed in the docket index available at https://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information DATES: E:\FR\FM\15SER1.SGM 15SER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 55988-55991]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22856]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-1014-201026; FRL-9201-1]

Approval and Promulgation of Implementation Plans; Commonwealth
of Kentucky; Prevention of Significant Deterioration and Nonattainment
New Source Review Rules: Nitrogen Oxide as Precursor to Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is taking final action to approve a revision to the
Commonwealth of Kentucky's State Implementation Plan (SIP), submitted
to EPA by the Kentucky Energy and Environment Cabinet, through the
Kentucky Division for Air Quality (KDAQ), on February 5, 2010. The
revision modifies Kentucky's prevention of significant deterioration
(PSD) and nonattainment new source review (NNSR) permitting regulations
in Kentucky's SIP to address permit requirements promulgated in the
1997 8-Hour Ozone National Ambient Air Quality Standards (NAAQS)
Implementation Rule--Phase II (hereafter referred to as the ``Ozone
Implementation NSR Update''). The Ozone Implementation NSR Update
revised permit requirements relating to the implementation of the 1997
8-hour ozone NAAQS, specifically, incorporating nitrogen oxides
(NOX) as a precursor to ozone. EPA's approval of Kentucky's
provisions to include NOX as an ozone precursor into the
Kentucky SIP is based on EPA's determination that Kentucky's SIP
revision related to these provisions complies with Federal
requirements. EPA is also addressing the general adverse comments
received on EPA's proposal to approve NOX as an ozone
precursor for permitting purposes into the Kentucky SIP.
The February 5, 2010, SIP revision also included provisions to
exclude facilities that produce ethanol through a natural fermentation
process from the definition of ``chemical process plants'' in the NSR
major source permitting program in the Kentucky SIP. EPA also received
adverse comments for its proposal to approve these provisions. At this
time, EPA is not taking final action on Kentucky's provisions to
exclude facilities that produce ethanol through a natural fermentation
process from the definition of ``chemical process plants'' in the NSR
major source permitting program. EPA will consider the comments
received regarding these provisions and take any final action for these
provisions in a separate rulemaking.

DATES: Effective Date: This rule will be effective October 15, 2010.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2009-1014. All documents in the docket
are listed on the https://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 https://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: For information regarding the Kentucky
SIP, contact Ms. Twunjala Bradley, 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. Ms. Bradley can be reached via telephone
at (404) 562-9352 and electronic mail at bradley.twunjala@epa.gov. For
information regarding NSR, contact Ms. Yolanda Adams, Air Permits
Section, at the same address above. Ms. Adams can be reached via
telephone at (404) 562-9214 and electronic mail at
adams.yolanda@epa.gov. For information regarding 8-hour ozone NAAQS,
contact Ms. Jane Spann, Regulatory Development Section, at the

[[Page 55989]]

same address above. Ms. Spann can be reached via telephone at (404)
562-9029 and electronic mail at spann.jane@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Today's Action
III. Comments and Responses
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

On February 5, 2010, the Commonwealth of Kentucky, through KDAQ,
submitted a revision to the Kentucky SIP which relates to Kentucky's
Air Quality Regulations, Chapter 51--401 Kentucky Administrative
Regulation (KAR) 51:001 ``Definitions for 401 KAR Chapter 51,'' 401 KAR
51:017 ``Prevention of Significant Deterioration of Air Quality,'' and
401 KAR 51:052 ``Review of New Sources in or Impacting upon
Nonattainment Areas.'' The SIP revision addressed various issues.\1\
This final action addresses only one component of the February 5, 2010,
submittal--the Ozone Implementation NSR Update requirements, as
contained in 40 Code of Federal Regulations (CFR) 51.165 and 51.166,
and promulgated on November 29, 2005, as part of EPA's Ozone
Implementation NSR Update.
---------------------------------------------------------------------------

\1\ Kentucky's February 5, 2010, SIP revision also included
provisions for excluding facilities that produce ethanol through a
natural fermentation process from the definition of ``chemical
process plants'' in the NSR major source permitting program. In an
action published on April 1, 2010 (75 FR 16388), EPA proposed to
approve the aforementioned revisions into the Kentucky SIP. At this
time, EPA is not taking action on the ethanol provisions. On a
separate, unrelated issue, the rule revisions provided in Kentucky's
February 5, 2010, submittal also requested the removal of certain
provisions for clean units (CU) and pollution control projects
(PCP), which were vacated by the United States Court of Appeals for
the District of Columbia Circuit. EPA has not previously taken
action to approve that portion of Kentucky's submittal (regarding
the vacated rules) and EPA is not now taking action on those
provisions.
---------------------------------------------------------------------------

On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of
0.08 parts per million--also referred to as the 1997 8-hour ozone
NAAQS. On April 30, 2004, EPA designated areas as attainment,
nonattainment and unclassifiable for the 1997 8-hour ozone NAAQS. As
part of the 2004 designations, EPA also promulgated an implementation
rule for the 1997 8-hour ozone NAAQS in two phases. Phase I of EPA's
1997 8-hour ozone implementation rule (Phase 1 Rule), published on
April 30, 2004, and effective on June 15, 2004, provided the
implementation requirements for designating areas under subpart 1 and
subpart 2 of the CAA. See 69 FR 23857.
On November 29, 2005, EPA promulgated the second phase for
implementation provisions related to the 1997 8-hour ozone NAAQS--also
known as the Phase II Rule. See 70 FR 71612. The Phase II Rule
addressed control and planning requirements as they applied to areas
designated nonattainment for the 1997 8-hour ozone NAAQS which included
NSR requirements. Specific to this rulemaking, the Phase II Rule made
changes to Federal regulations 40 CFR 51.165 and 51.166, which govern
the NNSR and PSD permitting programs. The revisions to the NSR
permitting requirements in the Phase II Rule are also known as the
Ozone Implementation NSR Update.
Specifically, the Phase II Rule requirements included, among other
changes, a new provision stating that NOX is an ozone
precursor. See 70 FR 71612, (page 71679) (November 29, 2005). In the
Phase II Rule, EPA stated as follows:

``The EPA has recognized NOX as an ozone precursor in
several national rules because of its contribution to ozone
transport and the ozone nonattainment problem. The EPA's recognition
of NOX as an ozone precursor is supported by scientific
studies, which have long recognized the role of NOX in
ozone formation and transport. Such formation and transport is not
limited to nonattainment areas. Therefore, we believe NOX
should be treated consistently as an ozone precursor in both our PSD
and nonattainment NSR regulations. For these reasons we have
promulgated final regulations providing that NOX is an
ozone precursor * * *''

In the Phase II Rule, EPA established that states must submit SIPs
incorporating required changes (including the addition of
NOX as a precursor for ozone) no later than June 15, 2007.
See 70 FR 71612 (page 71683).
On February 5, 2010, Kentucky submitted a revision to include
NOX as a precursor for ozone for PSD and NNSR permitting
purposes in order to comply with the Phase II Rule.

II. Today's Action

EPA has determined that Kentucky's February 5, 2010, SIP revision
revising Kentucky's PSD and NNSR permit programs is consistent with
changes to the Federal NSR requirements (40 CFR 51.165 and 51.166, and
the Phase II Rule) relating to the incorporation of NOX as
an ozone precursor. The revision, which became state-effective on
February 5, 2010, is included in Kentucky's PSD and NNSR programs and
meets the requirements of the Phase II Rule by identifying
NOX as a precursor for ozone.\2\
---------------------------------------------------------------------------

\2\ The Kentucky rules were formatted to conform to Kentucky
rule drafting standards (KRS Chapter 13A), but in substantive
content the rules are the same as the Federal rules.
---------------------------------------------------------------------------

EPA received comments on its proposal to approve the Kentucky SIP
revision to incorporate NOX as a precursor for ozone, on
April 29, 2010, from the Law Office of Robert Ukeiley on behalf of the
Sierra Club and Valley Watch, Incorporated. The comments opposed
approval of the SIP revision. EPA's responses to these comments can be
found in Section III of this rulemaking.

III. Comments and Responses

On April 29, 2010, EPA received a letter providing comments on
EPA's proposal to approve Kentucky's February 5, 2010, SIP revision to
include NOX as a precursor for ozone for PSD and NNSR
purposes. Below is a summary of the comments and EPA's response.
Comments: \3\ The comments acknowledged that ``[t]his revision is
long overdue;'' however, the comments further stated that, ``EPA should
not approve Kentucky's revision just because it is ``line-by-line''
consistent with the federal rules.''
---------------------------------------------------------------------------

\3\ A full text of the comments is available in the Docket for
this action. Electronic docket information can be found in the
``Addresses'' portion of this notice. The comments are summarized in
this document; however, EPA considered all the comments expressed in
the letter.
---------------------------------------------------------------------------

The comments expressed concerns regarding Kentucky's implementation
of modeling requirements for ozone, particularly in reference to
certain coal-fired utilities in Kentucky (that were specifically
identified in the letter), and for those reasons, the Commenter appears
to oppose the SIP revision. The Commenter explains that ``[t]his
proposed rulemaking is EPA's opportunity to provide Kentucky with much-
needed direction on how to ensure air quality does not further
degrade.'' One basis for the Commenter's concerns appears to be his
position on Kentucky's attainment status for the ozone NAAQS as well as
some permitting activities. The Commenter explains his position on
Kentucky's alleged noncompliance with ozone requirements particularly
with regard to issuing permits for major new sources of air pollution.
The concerns seemed focused on ozone related modeling and monitoring.
Further, the Commenter explains his concerns regarding ozone
preconstruction monitoring at certain stationary sources.
The Commenter concludes by explaining that ``[t]he proposed SIP

[[Page 55990]]

revision is EPA's opportunity to work with the state of Kentucky to
design a program that will help Kentucky achieve present and future
attainment with ozone standards.'' The Commenter requests that EPA (1)
not approve the SIP revision until Kentucky agrees to make serious
efforts at attaining and assuring continuing attainment with the ozone
standards; and (2) use its powers under CAA Section 167 to prevent
construction of three major sources of ozone precursor pollution
(identified in the letter).
Response: EPA's Phase II Rule required states to add NOX
as a precursor for ozone to their SIPs. EPA explained the basis for
that decision in the Phase II Rule, which is part of the CAA program to
improve air quality and reduce ground-level ozone. The air quality
benefits were the primary basis for EPA's final action in the Phase II
Rule requiring states to incorporate NOX as a precursor for
ozone in their SIPs. See 68 FR 32802 (proposal); 70 FR 71612, 71674,
71679 (final Phase II Rule). The Commenter acknowledges that this
action is ``overdue'' and recognizes that NOX is in fact a
precursor for ozone. While the comments are adverse in the sense that
they request that EPA not approve the SIP revision, the comments
provide no scientific or legal basis for EPA to disapprove Kentucky's
February 5, 2010, SIP revision. The comments are focused on concerns
about Kentucky's major source air program, and include no specific
information explaining why adding NOX as a precursor to
ozone in Kentucky's PSD and NNSR programs is contrary to the CAA or its
implementing regulations.
Notably, the Commenter has raised similar concerns in response to
other actions (e.g., permit revisions and other SIP revisions),
including a lawsuit against EPA seeking EPA to use Clean Air Act
Section 167 at certain coal-fired utilities in Kentucky. In a letter
dated April 17, 2009 (which was resubmitted on January 20, 2010), the
Commenter provided adverse comments to EPA regarding a separate (and
unrelated) proposed approval actions for four Kentucky 110(a)(1)
maintenance plans, stating

``the Kentucky PSD program only requires that sources conduct
ambient monitoring and impact analysis when a source is over 100
tons per year of [volatile organic compounds]. See 401 KAR 51:017
Sec. 7(5)(a). The Kentucky PSD program illegally leaves out major
sources of NOX. Id.''

In that separate action, the Commenter supported disapproval based
on NOX not being listed as an ozone precursor in the
Kentucky SIP. Nonetheless, in this action to incorporate NOX
as a precursor for ozone, the same Commenter is opposing the action.
Commenter appears to be trying to achieve changes not directly related
to the SIP revision at issue, but more specifically focused on certain
major stationary sources identified in the letter. These other actions
have their own independent regulatory processes wherein Commenter has
other opportunities to raise concerns and seek changes.
EPA's action to approve NOX as a precursor for ozone in
Kentucky supports the improvement of air quality in Kentucky, in part
because of the associated modeling and monitoring requirements. EPA's
approval of this SIP revision ensures that Kentucky's PSD and NNSR
permit programs are consistent with the Federal NSR permit requirements
(40 CFR 51.165 and 51.166) relating to the incorporation of
NOX as an ozone precursor set forth in the Phase II Rule.

IV. Final Action

Pursuant to Section 110 of the CAA, EPA is taking final action to
approve Kentucky's SIP revision submitted February 5, 2010, which
incorporates NOX as an ozone precursor for PSD and NNSR
purposes into the Kentucky SIP. The revision included in Kentucky's PSD
and NNSR programs is equivalent to the provision in the Ozone
Implementation NSR Update. EPA is approving these revisions into the
Kentucky SIP because they are consistent with the CAA and its
implementing regulations.

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
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 November 15, 2010. Filing a petition for
reconsideration by the

[[Page 55991]]

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, Incorporation by
reference, Ozone, Volatile organic compounds.

Dated: September 1, 2010.
Beverly H. Banister,
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.

Subpart S--Kentucky

0
2. Section 52.920(c) Table 1 is amended by revising the entries for
``401 KAR 51:001,'' ``401 KAR 51:017,'' and ``401 KAR 51:052'' to read
as follows:

Sec. 52.920 Identification of plan.

* * * * *
(c) * * *

Table 1--EPA-Approved Kentucky Approved Kentucky Regulations
----------------------------------------------------------------------------------------------------------------
EPA approval
State citation Title/subject State effective date date Explanation
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
----------------------------------------------------------------------------------------------------------------
401 KAR 51:001............... Definitions for 2/5/2010 9/15/2010 Except the phrase
401 KAR Chapter [Insert ``except ethanol
51. citation of production
publication]. facilities
producing ethanol
by natural
fermentation under
the North American
Industry
Classification
System (NAICS)
codes 325193 or
312140,'' in 401
KAR 51:001 Section
1 (118)(1)(b)(i)
and the phrase
``except ethanol
production
facilities
producing ethanol
by natural
fermentation under
NAICS codes 325193
or 312140,'' in 401
KAR 51:001 Section
1(118) (2)(c)(20).
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
401 KAR 51:017............... Prevention of 2/5/2010 9/15/2010 Except the phrase
significant [Insert ``except ethanol
deterioration citation of production
of air quality. publication]. facilities
producing ethanol
by natural
fermentation under
the North American
Industry
Classification
System (NAICS)
codes 325193 or
312140;'' in 401
KAR 51:017 Section
7(1)(c)20.
401 KAR 51:052............... Review of new 2/5/2010 9/15/2010 Except the phrase
sources in or [Insert ``except ethanol
impacting upon citation of production
nonattainment publication]. facilities
areas. producing ethanol
by natural
fermentation under
the North American
Industry
Classification
System (NAICS)
codes 325193 or
312140,'' in 401
KAR 51:052 Section
2 (3)(t).
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-22856 Filed 9-14-10; 8:45 am]
BILLING CODE 6560-50-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.