Approval and Promulgation of Implementation Plans; Kentucky; Approval of Revisions to the Jefferson County Portion of the Kentucky SIP; New Source Review; Prevention of Significant Deterioration, 33363-33372 [2012-13694]
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Federal Register / Vol. 77, No. 109 / Wednesday, June 6, 2012 / Proposed Rules
data substitution was conducted. The
24-hour mean was recalculated, and the
resulting 2009–2011 PM2.5 24-hour
design value with data substitution is 27
mg/m3. The Air Lab monitor has a
preliminary 2009–2011 PM2.5 24-hour
design value of 24 mg/m3. The monitor
had one incomplete quarter during the
first quarter of 2010, and PM10 data
substitution was conducted. The 24hour mean was recalculated, and the
resulting 2009–2011 PM2.5 24-hour
design value with data substitution is 29
mg/m3. Because the design values with
data substitution are below the 35 mg/m3
standard, both monitors are considered
to be attaining the 2006 24-hour
NAAQS. The official design values of
the monitors are 24 mg/m3 and 24 mg/m3,
respectively. On the basis of this review,
EPA is proposing to determine that the
Knoxville Area has attained the 2006
24-hour PM2.5 NAAQS.
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C. Has the Knoxville Area met the 2006
24-hour PM2.5 air quality standard?
EPA has reviewed the ambient air
monitoring data for PM2.5, consistent
with the requirements contained in 40
CFR part 50 and recorded the data in the
EPA AQS database, for the Knoxville
Area. Based on EPA’s review of the data
for 2009–2011, EPA proposes to
determine that the Area attained the
2006 24-hour PM2.5 NAAQS.
V. What is the effect of these actions?
If these proposed determinations of
attaining data are made final, the
requirements for the Knoxville Area to
submit attainment demonstrations and
associated RACM, RFP plans,
contingency measures, and any other
planning SIPs related to attainment of
either the 1997 annual or the 2006 24hour PM2.5 NAAQS would be
suspended for so long as the Area
continues to attain the applicable PM2.5
NAAQS. See 40 CFR 51.1004(c).
Notably, as described below, any such
determination would not be equivalent
to the redesignation of the Area to
attainment for the 1997 annual or 2006
24-hour PM2.5 NAAQS.
If these proposed rulemakings are
finalized and EPA subsequently
determines, after notice-and-comment
rulemaking in the Federal Register, that
the Area has violated either the 1997
annual or 2006 24-hour PM2.5 NAAQS,
the basis for the suspension of the
specific requirements would no longer
exist for the Knoxville Area for the
NAAQS (i.e, the 1997 annual or the
2006 24-hour NAAQS) which was
violated, and the Area would thereafter
have to address the applicable
requirements for that particular
NAAQS. See 40 CFR 51.1004(c).
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Finalizing these proposed actions
would not constitute a redesignation of
the Area to attainment of the 1997
annual or 2006 24-hour PM2.5 NAAQS
under section 107(d)(3) of the CAA.
Further, finalizing these proposed
actions does not involve approving a
maintenance plan for the Area as
required under section 175A of the
CAA, nor would it find that the Area
has met all other requirements for
redesignation. Even if EPA finalizes the
proposed actions, the designation status
of the Knoxville Area would remain
nonattainment for the 1997 annual and
2006 24-hour PM2.5 NAAQS until such
time as EPA determines that the Area
meets the CAA requirements for
redesignation to attainment and takes
action to redesignate the Area.
If the Knoxville Area continues to
monitor attainment of the 1997 annual
PM2.5 NAAQS, the requirements for the
Knoxville Area to submit an attainment
demonstration and associated RACM,
RFP plan, contingency measures, and
any other planning SIPs related to
attainment of the 1997 annual PM2.5
NAAQS will remain suspended.
Further, if the Knoxville Area continues
to monitor attainment of the 2006 24hour PM2.5 NAAQS, the requirements
for the Knoxville Area to submit an
attainment demonstration and
associated RACM, RFP plan,
contingency measures, and any other
planning SIPs related to attainment of
the 2006 24-hour PM2.5 NAAQS will
remain suspended.
VI. Statutory and Executive Order
Reviews
These actions propose to make
determinations of attaining data based
on air quality, and would, if finalized,
result in the suspension of certain
federal requirements, and it would not
impose additional requirements beyond
those imposed by state law. For that
reason, these proposed actions:
• Are not ‘‘significant regulatory
actions’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are 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.);
• Do 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);
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• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are 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
• Do 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, these proposed 1997 annual
and 2006 24-hour PM2.5 NAAQS
determinations for the Knoxville Area
do 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.
For purposes of judicial review, the two
determinations proposed by today’s
action are severable from one another.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Particulate matter,
Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 17, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–13715 Filed 6–5–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2011–0227; FRL–9681–7]
Approval and Promulgation of
Implementation Plans; Kentucky;
Approval of Revisions to the Jefferson
County Portion of the Kentucky SIP;
New Source Review; Prevention of
Significant Deterioration
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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Federal Register / Vol. 77, No. 109 / Wednesday, June 6, 2012 / Proposed Rules
EPA is proposing to approve
multiple revisions to the Jefferson
County portion of the Kentucky State
Implementation Plan (SIP), submitted
by the Commonwealth of Kentucky,
through the Kentucky Division for Air
Quality (KDAQ), to EPA in two
submittals dated June 1, 2009, and
February 8, 2011. These proposed
revisions were submitted by KDAQ on
behalf of the Louisville Metro Air
Pollution Control District (LMAPCD),
(also referred to as Jefferson County) and
modifies the LMAPCD New Source
Review (NSR) Prevention of Significant
Deterioration (PSD) permitting
regulations. The proposed revisions
incorporate by reference (IBR) federal
NSR PSD requirements promulgated in
the Greenhouse Gas (GHG) Tailoring
Rule (hereafter referred to as the ‘‘GHG
Tailoring Rule’’), requirements for the
fine particulate matter (also known as
PM2.5) national ambient air quality
standards (NAAQS) as amended in
EPA’s 2008 NSR PM2.5 Implementation
Rule (hereafter referred to as the ‘‘NSR
PM2.5 Rule’’), the 1997 8-Hour Ozone
NAAQS Implementation Rule NSR
Update Phase II (hereafter referred to as
the ‘‘Phase II Rule’’), and the 2002 NSR
Reform Rule, into the Jefferson County
portion of the Kentucky SIP. EPA is
proposing approval of Jefferson
County’s June 1, 2009, and February 8,
2011, SIP revisions because the Agency
has determined that these SIP revisions
are in accordance with the Clean Air
Act (CAA or Act) and EPA regulations
regarding the PSD permitting program.
DATES: Comments must be received on
or before July 6, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2011–0227 by one of the following
methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: EPA–R04–OAR–2011–0227,
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, Chief, 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
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SUMMARY:
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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–2011–
0227.’’ EPA’s policy is that all
comments received will be included in
the public docket without change and
may be made available online at
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
www.regulations.gov or email,
information that you consider to be CBI
or otherwise protected. The
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 email comment directly
to EPA without going through
www.regulations.gov, your email
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 https://
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 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
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contact the person listed in the FOR
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 Jefferson
County portion of 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’s telephone number is (404)
562–9352; email address:
bradley.twunjala@epa.gov. For
information regarding the GHG
Tailoring Rule, 2002 NSR Reform and
NSR PM2.5 Rule, contact Yolanda
Adams, Air Permits Section, at the same
address above. Ms. Adams’ telephone
number is (404) 562–9214; email
address: adams.yolanda@epa.gov. For
information regarding the Phase II Rule
and ozone NAAQS, contact Jane Spann,
Regulatory Development Section, at the
same address above. Ms. Spann’s
telephone number is (404) 562–9029;
email address: spann.jane@epa.gov. For
information regarding the PM2.5
NAAQS, contact Mr. Joel Huey,
Regulatory Development Section, at the
same address above. Mr. Huey’s
telephone number is (404) 562–9104;
email address: huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
FURTHER INFORMATION CONTACT
Table of Contents
I. What actions are proposed in this notice?
II. What is EPA’s proposed action for GHGemitting sources?
III. What is EPA’s proposed action for the
NSR PM2.5 Rule?
IV. What is EPA’s proposed action for the
Phase II Rule?
V. What are EPA’s proposed actions for
NSR Reform and Reasonable Possibility?
VI. What is EPA’s proposed action for the
automatic rescission clause?
VII. Proposed Actions
VIII. Statutory and Executive Order
Reviews
I. What actions are proposed in this
notice?
On June 1, 2009, and February 8,
2011, the Commonwealth of Kentucky
through the KDAQ (and on behalf of
LMAPCD) submitted two SIP revisions
to EPA for approval into the Jefferson
County portion of the Kentucky SIP to
adopt federal NSR PSD permitting
requirements. The SIP revisions consist
of changes to the LMAPCD Air Quality
Regulations, Regulation 2 Permit
Requirements: Regulation 2.05—
Prevention of Significant Deterioration
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Federal Register / Vol. 77, No. 109 / Wednesday, June 6, 2012 / Proposed Rules
of Air Quality and address several NSR
PSD permitting requirements
promulgated at 40 CFR 52.21.
Specifically, the June 1, 2009, SIP
revision: (1) Incorporates provisions for
implementing the PSD program for the
PM2.5 NAAQS as promulgated in the
NSR PM2.5 Rule,1 73 FR 28321 (May 16,
2008); (2) adopts PSD provisions related
to the implementation of the 1997 8hour ozone Phase II Rule including
nitrogen oxides (NOX) as a precursor to
ozone, 70 FR 71612 (November 29,
2005); and (3) adopts federal PSD
regulations established in the 2002 NSR
Reform Rules, 67 FR 80186 (December
31, 2002) and the NSR Reasonable
Possibility Rule, 72 FR 72607 (December
21, 2007). These PSD permitting
provisions became effective in Jefferson
County on May 20, 2009. The February
8, 2011, SIP revision provides Jefferson
County with the authority to regulate
GHG under its PSD program and
establishes appropriate emission
thresholds for determining which new
stationary sources and modification
projects become subject to LMAPCD’s
PSD permitting requirements for their
GHG emissions as promulgated in the
GHG Tailoring Rule, 75 FR 31514 (June
3, 2010). These GHG PSD applicability
provisions became effective in Jefferson
County on November 17, 2010. In
addition, the February 8, 2011,
submittal adopts a provision that would
automatically render Jefferson County’s
Regulation 2.05 or a portion thereof
invalid in the wake of certain court
decisions or other events (the
‘‘automatic rescission clause’’).
Approval of Jefferson County’s GHG
permitting regulations also includes a
proposal to simultaneously rescind the
federal implementation plan (FIP) that
EPA promulgated on January 14, 2011.
See 76 FR 2581. For more information
on the Jefferson County FIP see Section
II of this rulemaking. Pursuant to
section 110 of the CAA, EPA is
proposing to approve these changes into
the Jefferson County portion of the
Kentucky SIP.
In addition to incorporating the
changes discussed above, Jefferson
County’s SIP revisions also include PSD
permitting provisions that: (1) Exclude
facilities that produce ethanol through a
natural fermentation process from the
definition of ‘‘chemical process plants’’
in the major NSR source permitting
program as amended in the Ethanol
1 With respect to the NSR PM
2.5 Rule, Phase II
Rule and NSR Reform, Jefferson County’s SIP
revisions only address PSD requirements at
Regulation 2.05. The nonattainment NSR (NNSR)
provisions for Jefferson County (Regulation 2.04) for
these provisions are still under development by
LMAPCD.
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Rule, 72 FR 24060 (May 1, 2007); and
(2) IBR changes pursuant to EPA’s
Fugitive Emissions Rule, 73 FR 77882
(December 19, 2008).2 In today’s
proposed rulemaking, EPA is not
proposing to take action on LMAPCD’s
changes to its PSD regulations to adopt
provisions promulgated in the Ethanol
Rule nor is EPA proposing to take action
on LMAPCD’s changes to incorporate
the provisions of the Fugitive Emission
Rule.
LMAPCD IBR the federal PSD
permitting requirements found at 40
CFR 52.21 to update its permitting
program at Regulation 2.05. Jefferson
County’s practice for revising its PSD
regulations is to IBR into its SIP the
version of the Code of Federal
Regulations (at 40 CFR 52.21) that is in
effect as of a specified date. LMAPCD’s
Regulation 2.05 contains the
preconstruction review program that
provides for the prevention of
significant deterioration of ambient air
quality as required under part C of title
I of the CAA (the PSD program).
Jefferson County’s June 1, 2009, SIP
revision, which provided version 9 of
LMAPCD’s Regulation 2.05, IBR the
federal PSD regulations as set forth at 40
CFR 52.21, and as amended as of July
1, 2008. Subsequently, the February 8,
2011, SIP revision, which provided
version 10 of LMAPCD’s Regulation
2.05, IBR federal PSD regulations as set
forth at 40 CFR 52.21, and as amended
as of July 1, 2010, thereby superseding
version 9 of Regulation 2.05.
Throughout this rulemaking, EPA will
refer to the June 1, 2009, and February
8, 2011, SIP revisions as the ‘‘Jefferson
County’s SIP revisions.’’
II. What is EPA’s proposed action for
GHG-emitting sources?
On February 8, 2011, KDAQ
submitted a request to EPA to approve
changes to the Jefferson County portion
of the Kentucky SIP to incorporate
federal requirements for NSR PSD
2 On March 31, 2010, EPA stayed the Fugitive
Emissions Rule (73 FR 77882) for 18 months to
October 3, 2011, to allow the Agency time to
propose, take comment and issue a final action
regarding the inclusion of fugitive emissions in NSR
applicability determinations. This stay was
established as a result of EPA granting the Natural
Resource Defense Council’s petition for
reconsideration on the original Fugitive Emissions
Rule. See 73 FR 77882 (December 19, 2008). On
March 30, 2011 (76 FR 17548), EPA proposed an
interim rule which superseded the March 31, 2010,
stay and clarified and extended the stay of the
Fugitive Emission Rule until EPA completes its
reconsideration. The interim rule simply reverts the
CFR text back to the language that existed prior to
the Fugitive Emissions Rule changes in the
December 19, 2008, rulemaking. EPA plans to issue
a final rule affirming the interim rule as final. The
final rule will remain in effect until EPA completes
its reconsideration.
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permitting. These adopted rules became
effective in Jefferson County on
November 17, 2010. These amendments
provide Jefferson County with the
authority to regulate GHG under its PSD
program and establish PSD applicability
thresholds for GHG emissions in
LMAPCD’s PSD regulations at the same
emissions thresholds and in the same
timeframes as those specified by EPA in
the GHG Tailoring Rule. By
incorporating the GHG Tailoring Rule
thresholds into the Jefferson County
portion of the Kentucky SIP, KDAQ is
ensuring that smaller GHG sources
emitting less than these thresholds will
not be subject to PSD permitting
requirements for their GHG emissions.
In today’s action, pursuant to section
110 of the CAA, EPA is proposing to
approve these changes into the Jefferson
County portion of the Kentucky SIP.3
Approval of Jefferson County’s GHG
permitting regulations also includes a
proposal to simultaneously rescind the
FIP that EPA promulgated on January
14, 2011. See 76 FR 2581. More
information regarding Jefferson County’s
FIP is summarized below. This section
briefly summarizes EPA’s GHG-related
actions that provide the background for
today’s proposed action. More detailed
discussion of the background is found
in the preambles for those actions cited
herein.
A. Background
EPA has recently undertaken a series
of actions pertaining to the regulation of
GHGs that, although for the most part
are distinct from one another, establish
the overall framework for today’s final
action on the Jefferson County portion
of the Kentucky SIP. Four of these
actions include, as they are commonly
called, the ‘‘Endangerment Finding’’
and ‘‘Cause or Contribute Finding,’’ 4
which EPA issued in a single final
action; the ‘‘Johnson Memo
Reconsideration;’’ 5 the ‘‘Light-Duty
Vehicle Rule;’’ 6 and the ‘‘Tailoring
Rule.’’ Taken together and in
conjunction with the CAA, these actions
established regulatory requirements for
GHGs emitted from new motor vehicles
and new motor vehicle engines;
3 The GHG Tailoring Rule also applies to the title
V program, which requires operating permits for
existing sources. However, today’s action does not
affect LMAPCD’s title V program.
4 ‘‘Endangerment and Cause or Contribute
Finding for Greenhouse Gases Under Section 202(a)
of the Clean Air Act.’’ 74 FR 66496 (December 15,
2009).
5 ‘‘Interpretation of Regulations that Determine
Pollutants Covered by Clean Air Act Permitting
Programs.’’ 75 FR 17004 (April 2, 2010).
6 ‘‘Light-Duty Vehicle Greenhouse Gas Emission
Standards and Corporate Average Fuel Economy
Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010).
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determined that such regulations, when
they took effect on January 2, 2011,
subjected GHGs emitted from stationary
sources to PSD requirements; and
limited the applicability of PSD
requirements to GHG sources on a
phased-in basis. EPA took this last
action in the GHG Tailoring Rule,
which, more specifically, established
appropriate GHG emission thresholds
for determining the applicability of PSD
requirements to GHG-emitting sources.
In the GHG Tailoring Rule, EPA tailored
the applicability criteria that determine
which GHG emission sources become
subject to the PSD program of the CAA
to relieve overwhelming permitting
burdens that would, in the absence of
the rule, fall on permitting authorities
and sources. See 75 FR 31514, (June 3,
2010). As EPA explained in the GHG
Tailoring Rule, the threshold limitations
are necessary because without them
PSD would apply to all stationary
sources that emit or have the potential
to emit more than 100 or 250 tons of
GHG per year as of January 2, 2011.
January 2, 2011, was the date when
EPA’s Light-Duty Vehicle Rule took
effect, imposing control requirements
for the first time on carbon dioxide and
other GHGs. EPA asked permitting
authorities to confirm that they would
follow this implementation approach for
their programs, and if they could not, to
notify EPA so that the Agency could
take appropriate follow-up action to
narrow 7 federal approval of their
programs before GHGs became subject
to PSD permitting on January 2, 2011.
See 75 FR at 31518.
Recognizing that some states had SIPapproved PSD programs that did not
apply PSD to GHGs, EPA issued a SIP
call and, for some of these states, a FIP.
On December 13, 2010, EPA finalized
the rulemaking entitled ‘‘Action to
Ensure Authority to Issue Permits Under
the Prevention of Significant
Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of
7 On December 30, 2010, (75 FR 82536) EPA
promulgated the rule entitled ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule;
(the ‘‘Narrowing Rule’’). In the Narrowing Rule,
EPA explained that by ‘‘narrowing’’ its prior
approval of a SIP-approved PSD program, EPA
could ensure that for federal purposes, GHG sources
below the Tailoring Rule’s thresholds would not be
obligated to hold PSD permits until the state
develops and submits a revised PSD program that
EPA approves, either because the state adopts the
Tailoring Rule thresholds or because the state
demonstrates that it has adequate resources to
administer a program covering GHGs at lower
applicability thresholds. See 75 FR at 31518.
However, as discussed later in this section, EPA
issued a SIP call and FIP for the Jefferson County
jurisdiction, and therefore did not narrow federal
approval of LMAPCD’s PSD program.
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Substantial Inadequacy and SIP Call,’’
Final Rule (hereafter referred to as the
‘‘SIP call’’). See 75 FR 77698. The rule
finalized findings of substantial
inadequacy and SIP call for 15 state and
local permitting authorities (including
Jefferson County) where the existing
SIP-approved PSD program did not
provide authority to regulate GHGs. EPA
explained that if a state identified in the
SIP call failed to submit the required
corrective SIP revision by the applicable
deadline, EPA would promulgate a FIP
under CAA section 110(c)(1)(A) for that
state to govern PSD permitting for
GHGs. LMAPCD requested a SIP call
deadline of January 1, 2011, to provide
its corrective SIP with the
understanding that EPA would put a FIP
in place for Jefferson County soon after
that date if a SIP revision was not
provided. On January 14, 2011, EPA
finalized a FIP for Jefferson County in
the rulemaking ‘‘Action to Ensure
Authority to Issue Permits Under the
Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan
for Jefferson County, KY,’’ Final Rule
(hereafter referred to as ‘‘Jefferson
County GHG FIP’’). See 76 FR 2581.
This rulemaking established a FIP for
Jefferson County because LMAPCD,
through KDAQ, was unable to submit,
by its January 1, 2011, deadline, the
corrective SIP revision to apply its PSD
program to sources of GHG.8 The FIP
was put in place to ensure that a
permitting authority (i.e., EPA) would
be available to issue preconstruction
PSD permits to GHG-emitting sources in
Jefferson County, if necessary.
B. Jefferson County’s Actions
In response to EPA’s request in the
GHG Tailoring Rule that permitting
authorities confirm whether their SIPs
provide authority to implement the
GHG Tailoring Rule thresholds,
LMAPCD provided a letter (commonly
referred to as the 60-day letter) to EPA
on August 2, 2010, explaining that
LMAPCD * * * ‘‘[i]s authorized in its
existing SIP to apply the meaning of the
term ‘‘subject to regulation’’ established
by EPA in the GHG Tailoring Rule in
both the PSD and title V permitting
programs.’’ LMAPCD further explained
that it would need to amend its SIP for
Jefferson County to enable it to
8 EPA’s action on January 14, 2011, to put a FIP
in place for Jefferson County, Kentucky does not
relate to the rest of Kentucky, as the
Commonwealth, through KDAQ submitted a
corrective SIP revision to address the remainder of
Kentucky on December 13, 2010. KDAQ’s SIP
revision to adopt the GHG Tailoring Rule thresholds
for all portions of Kentucky, except Jefferson
County, was approved by EPA on December 29,
2010 (75 FR 81868).
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implement the GHG Tailoring Rule
thresholds. See the docket for this
proposed rulemaking for a copy of
LMAPCD’s 60-day letter.
However, on October 4, 2010, in
response to EPA’s request in the
September 2, 2010, proposed SIP call
Rule, LMAPCD submitted a letter to
EPA changing its view of whether
Jefferson County’s SIP-approved PSD
regulations provided authority to
regulate GHGs (referred to as the 30-day
letter). Jefferson County’s 30-day letter
acknowledged that while its existing SIP
could be interpreted as providing the
Agency authority to issue PSD permits
to GHG-emitting sources, this
interpretation would be a departure
from its past practice of utilizing
rulemaking procedures to update the
SIP to incorporate revised EPA
regulations.’’ See Docket ID: EPA–R04–
OAR–2011–0227 for LMAPCD’s October
4, 2010, 30-day letter. In a follow-up
letter dated October 19, 2010, LMAPCD
reiterated its position that it did not
have the authority, under its existing
SIP, to issue PSD permits to regulate
GHG-emitting sources without going
through rulemaking. See DOCKET ID:
EPA–R04–OAR–2011–0227 for
LMAPCD’s October 19, 2010, follow-up
letter.
With the final GHG SIP call (75 FR
77698) and the Jefferson County GHG
FIP rulemaking (76 FR 2581), EPA took
steps to ensure that LMAPCD, which
did not interpret its exiting SIPapproved PSD program to provide
authority to issue PSD permits to GHGemitting sources, would not be at risk
for permitting interruptions related to
GHG by either having EPA issue permits
for GHG through a FIP or be in a
position for EPA to use delegation to
allow LMAPCD to issue permits related
to GHGs. More detail regarding EPA’s
analysis of the proposed changes to the
Jefferson County portion of the
Kentucky SIP (as provided in the
February 8, 2011, revision) is provided
below.
C. EPA’s Analysis of Jefferson County’s
SIP Revision To Adopt the GHG
Tailoring Rule
On February 8, 2011, KDAQ, on
behalf of LMAPCD, submitted to EPA a
revision to the Jefferson County portion
of Kentucky’s SIP to IBR NSR PSD
requirements for GHG. Specifically, the
February 8, 2011, SIP revision includes
changes to LMAPCD’s Regulation 2.05—
Prevention of Significant Deterioration
of Air Quality (version 10) to provide
authority to LMAPCD to regulate GHG
under the PSD program; and establish
appropriate PSD applicability
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thresholds for GHGs, consistent with
EPA’s Tailoring Rule.
LMAPCD is currently the SIPapproved permitting authority for the
PSD program in Jefferson County,
Kentucky. As mentioned above,
LMAPCD does not interpret the current
SIP-approved version of its PSD
regulations at Regulation 2.05 (i.e.,
version 9), which IBR the federal PSD
regulations, to be applicable to GHG. In
correspondences dated October 4, 2010,
and October 19, 2010, LMAPCD notified
EPA that it did not have the authority
to regulate GHG under the PSD program,
and thus was in the process of revising
its regulations (the subject of this
proposed action) to provide LMAPCD
with this authority. The February 8,
2011 SIP revision IBR the federal PSD
regulations at 40 CFR 52.21 as of July
2010 into Jefferson County Regulation
2.05 to include the relevant federal GHG
Tailoring Rule revisions that provide
LMAPCD with the authority to regulate
GHG under the PSD program and
establish the thresholds for GHG
permitting applicability. The GHG
Tailoring Rule changes that this
proposed action would incorporate into
the Jefferson County portion of
Kentucky’s SIP define the term ‘‘subject
to regulation’’ for the PSD program and
define ‘‘greenhouse gases’’ and ‘‘tons
per year (tpy) carbon dioxide equivalent
emissions’’ (CO2e). Additionally, the
changes specify the methodology for
calculating an emissions increase for
GHG, the applicable thresholds for GHG
emissions subject to PSD, and the
schedule for when the applicability
thresholds take effect. See 75 FR at
31606–31607. EPA has preliminarily
determined that these provisions, which
provide LMAPCD with the authority to
regulate GHG under the PSD program
and establish the thresholds for GHG
permitting applicability, are consistent
with EPA’s PSD regulations for GHG
emitting sources as promulgated in the
GHG Tailoring Rule and section 110 of
the CAA. Therefore, EPA is proposing to
approve the GHG PSD permitting
revision into the Jefferson County
portion of Kentucky’s SIP. See GHG
Tailoring Rule, 75 FR at 31561. In
addition, EPA is proposing to rescind
the FIP promulgated January 14, 2011,
codified in 40 CFR 52.37(b)(7), that
ensures the availability of a PSDpermitting authority for GHG-emitting
sources in Jefferson County, Kentucky.
This FIP will no longer be required once
the proposed GHG PSD permitting
revision has been approved into the
Jefferson County portion of Kentucky’s
SIP.
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III. What is EPA’s proposed action for
the NSR PM2.5 Rule?
A. Background on Fine Particulate
Matter
Today’s proposed action to revise the
Jefferson County portion of the
Kentucky SIP also regards EPA’s
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5),’’ Final Rule (NSR PM2.5 Rule),
73 FR 28321 (May 16, 2008). In the NSR
PM2.5 Rule, EPA finalized regulations to
implement the NSR program for the
PM2.5 NAAQS. As a result of EPA’s final
NSR PM2.5 Rule, states were required to
provide SIP revisions no later than May
16, 2011, to address these requirements
for both the PSD and NNSR programs.
Jefferson County’s June 1, 2009, and
February 8, 2011, SIP revisions both
address the PSD requirements for the
PM2.5 NAAQS. More detail on the NSR
PM2.5 Rule can be found in EPA’s May
16, 2008, final rule and is summarized
below.
Fine particles in the atmosphere are
made up of a complex mixture of
components. Common constituents
include sulfate (SO4); nitrate (NO3);
ammonium; elemental carbon; a great
variety of organic compounds; and
inorganic material (including metals,
dust, sea salt, and other trace elements)
generally referred to as ‘‘crustal’’
material, although it may contain
material from other sources. Airborne
particulate matter (PM) with a nominal
aerodynamic diameter of 2.5
micrometers or less (a micrometer is
one-millionth of a meter, and 2.5
micrometers is less than one-seventh the
average width of a human hair) are
considered to be ‘‘fine particles’’ and are
also known as PM2.5. ‘‘Primary’’
particles are emitted directly into the air
as a solid or liquid particle (e.g.,
elemental carbon from diesel engines or
fire activities, or condensable organic
particles from gasoline engines).
‘‘Secondary’’ particles (e.g., SO4 and
NO3) form in the atmosphere as a result
of various chemical reactions.
The health effects associated with
exposure to PM2.5 include potential
aggravation of respiratory and
cardiovascular disease (i.e., lung
disease, decreased lung function,
asthma attacks and certain
cardiovascular issues). Epidemiological
studies have indicated a correlation
between elevated PM2.5 levels and
premature mortality. Groups considered
especially sensitive to PM2.5 exposure
include older adults, children, and
individuals with heart and lung
diseases. For more details regarding
health effects and PM2.5 see EPA’s Web
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site at https://www.epa.gov/air/urbanair/
pm/ (See heading ‘‘Health’’).
On July 18, 1997, EPA revised the
NAAQS for PM to add new standards
for fine particles, using PM2.5 as the
indicator. Previously, EPA used PM10
(inhalable particles smaller than or
equal to 10 micrometers in diameter) as
the indicator for the PM NAAQS. EPA
established health-based (primary)
annual and 24-hour standards for PM2.5,
setting an annual standard at a level of
15.0 micrograms per cubic meter
(mg/m3) and a 24-hour standard at a
level of 65 mg/m3. See 62 FR 38652. At
the time the 1997 primary standards
were established, EPA also established
welfare-based (secondary) standards
identical to the primary standards. The
secondary standards are designed to
protect against major environmental
effects of PM2.5, such as visibility
impairment, soiling, and materials
damage. On October 17, 2006, EPA
revised the primary and secondary 24hour NAAQS for PM2.5 to 35 mg/m3 and
retained the existing annual PM2.5
NAAQS of 15.0 mg/m3. See 71 FR 61236.
B. Implementation of NSR for the PM2.5
NAAQS
After EPA promulgated the NAAQS
for PM2.5 in 1997, the Agency issued a
guidance document entitled ‘‘Interim
Implementation of New Source Review
Requirements for PM2.5.’’ John S. Seitz,
EPA, October 23, 1997 (the ‘‘Seitz
memo’’). The Seitz memo was designed
to help states implement NSR
requirements pertaining to the new
PM2.5 NAAQS in light of technical
difficulties posed by PM2.5 at that time.
Specifically, the Seitz memo stated:
‘‘PM–10 may properly be used as a
surrogate for PM–2.5 in meeting NSR
requirements until these difficulties are
resolved’’ (the PM10 Surrogate Policy).
EPA also issued a guidance document
entitled ‘‘Implementation of New
Source Review Requirements in PM2.5
Nonattainment Areas’’ (the ‘‘2005 PM2.5
Nonattainment NSR Guidance’’), on
April 5, 2005, the date that EPA’s PM2.5
nonattainment area designations became
effective for the 1997 NAAQS. This
memorandum provided guidance on the
implementation of the nonattainment
major NSR provisions in PM2.5
nonattainment areas in the interim
period between the effective date of the
PM2.5 nonattainment area designations
(April 5, 2005) and EPA’s promulgation
of final PM2.5 NNSR regulations. Besides
re-affirming the continuation of the
PM10 Surrogate Policy for PM2.5
attainment areas set forth in the Seitz
memo, the 2005 PM2.5 Nonattainment
NSR Guidance recommended that until
EPA promulgated the PM2.5 major NSR
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regulations, ‘‘[s]tates should use a PM10
nonattainment major NSR program as a
surrogate to address the requirements of
nonattainment major NSR for the PM2.5
NAAQS.’’
On May 16, 2008, EPA finalized a rule
to implement the 1997 PM2.5 NAAQS,
including changes to the NSR program.
See 73 FR 28321. The 2008 NSR PM2.5
Rule revised the NSR program
requirements to establish the framework
for implementing preconstruction
permit review for the PM2.5 NAAQS in
both attainment and nonattainment
areas. The 2008 NSR PM2.5 Rule requires
that major stationary sources seeking
permits must begin directly satisfying
the PM2.5 requirements, as of the
effective date of the rule, rather than
relying on PM10 as a surrogate, with two
exceptions. The first exception is a
‘‘grandfathering’’ provision in the
federal PSD program at 40 CFR
52.21(i)(1)(xi). This grandfathering
provision applied to sources that had
applied for, but had not yet received, a
final and effective PSD permit before the
July 15, 2008, effective date of the May
2008 final rule. The second exception
was that states with SIP-approved PSD
programs could continue to implement
the Seitz Memo’s PM10 Surrogate Policy
for up to three years (until May 2011)
or until the individual revised state PSD
programs for PM2.5 are approved by
EPA, whichever comes first. For
additional information on the NSR
PM2.5 Rule, see 73 FR 28321.9
On February 11, 2010, EPA proposed
to repeal the grandfathering provision
for PM2.5 contained in the federal PSD
program at 40 CFR 52.21(i)(1)(xi) and to
end early the PM10 Surrogate Policy
applicable in states that have a SIPapproved PSD program. See 75 FR 6827.
In support of this proposal, EPA
explained that the PM2.5
implementation issues that led to the
adoption of the PM10 Surrogate Policy in
1997 had been largely resolved to a
degree sufficient for sources and
permitting authorities to conduct
meaningful permit-related PM2.5
analyses. On May 18, 2011, EPA took
final action to repeal the PM2.5
grandfathering provision at 40 CFR
52.21(i)(1)(xi). See 76 FR 28646. This
final action ended the use of the 1997
PM10 Surrogate Policy for PSD permits
under the federal PSD program at 40
CFR 52.21. In effect, any PSD permit
9 Additional information on this issue can also be
found in an August 12, 2009, final order on a title
V petition describing the use of PM10 as a surrogate
for PM2.5. In the Matter of Louisville Gas & Electric
Company, Petition No. IV–2008–3, Order on
Petition (August 12, 2009) (available at https://
www.epa.gov/region07/air/title5/petitiondb/
petitions/lg_e_2nddecision2006.pdf).
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applicant previously covered by the
grandfathering provision (for sources
that completed and submitted a permit
application before July 15, 2008) 10 that
did not have a final and effective PSD
permit before the effective date of the
repeal will not be able to rely on the
1997 PM10 Surrogate Policy to satisfy
the PSD requirements for PM2.5 unless
the application includes a valid
surrogacy demonstration. See 76 FR
28646. In the February 8, 2011, SIP
revision, LMAPCD elected to IBR the
grandfathering provision at 40 CFR
52.21(i)(1)(xi) in its PSD regulations at
Regulation 2.05. However, since the rule
is repealed, EPA is not taking action to
approve this provision into the Jefferson
County portion of the Kentucky SIP.
The NSR PM2.5 Rule also established
the following NSR requirements to
implement the PM2.5 NAAQS: (1)
Require NSR permits to address directly
emitted PM2.5 and precursor pollutants;
(2) establish significant emission rates
for direct PM2.5 and precursor pollutants
(including sulfur dioxide (SO2) and
NOX); (3) establish PM2.5 emission
offsets; and (4) require states to account
for gases that condense to form particles
(‘‘condensables’’) in PM2.5 and PM10
emission limits in PSD or
nonattainment NSR permits. In
addition, the NNSR PM2.5 Rule gives
states the option of allowing
interpollutant trading for the purpose of
precursor offsets under the PM2.5 NNSR
program.11 Jefferson County’s June 1,
2009, and February 8, 2011, SIP
revisions address only the PSD
requirements related to EPA’s May 16,
2008, NSR PM2.5 Rule.
In the NSR PM2.5 Rule, EPA also
revised the definition of ‘‘regulated NSR
pollutant’’ for PSD and NNSR to add a
paragraph providing that ‘‘particulate
matter (PM) emissions, PM2.5 emissions
and PM10 emissions’’ shall include
gaseous emissions from a source or
activity which condense to form
10 Sources that applied for a PSD permit under
the federal PSD program on or after July 15, 2008,
are already excluded from using the 1997 PM10
Surrogate Policy as a means of satisfying the PSD
requirements for PM2.5. See 73 FR 28321.
11 On July 21, 2011, as a result of reconsidering
the interpollutant (IPT) policy, EPA issued a
memorandum indicating that the existing preferred
precursor offset ratios associated with the IPT
policy and promulgated in the NSR PM2.5 Rule were
no longer considered approvable. The
memorandum stated that any PM2.5 precursor offset
ratio submitted as part of the NSR SIP for PM2.5
nonattainment areas would need to be accompanied
by a technical demonstration exhibiting how the
ratios are suitable for that particular nonattainment
area. See Memorandum from Gina McCarthy to
Regional Air Division Directors, ‘‘Revised Policy to
Address Reconsideration of Interpollutant Trading
Provisions for Fine Particles (PM2.5)’’ (July 21, 2011)
(available at https://www.epa.gov/nsr/documents/
20110721PM25InterpollutantTradingPolicy.pdf.
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particulate matter at ambient
temperatures and that on or after
January 1, 2011, such condensable
particulate matter shall be accounted for
in applicability determinations and in
establishing emissions limitations for
PM, PM2.5 and PM10 in permits issued.
See 40 CFR 51.166(b)(49)(vi),
52.21(b)(50)(vi) and ‘‘Emissions Offset
Interpretative Ruling’’ (40 CFR Part 51,
Appendix S). A similar paragraph added
to the NNSR rule does not include
‘‘particulate matter (PM) emissions.’’
See 40 CFR 51.165(a)(1)(xxxvii)(D).
On March 12, 2012, EPA proposed a
rulemaking to amend the definition of
‘‘regulated NSR pollutant’’ promulgated
in the 2008 NSR PM2.5 Rule regarding
the PM condensable provision at 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(i) and
EPA’s Emissions Offset Interpretative
Ruling. See 77 FR 15656. The
rulemaking proposes to remove the
inadvertent requirement in the NSR
PM2.5 Rule that the measurement of
condensable ‘‘particulate matter
emissions’’ be included as part of the
measurement and regulation of
‘‘particulate matter emissions.’’ The
term ‘‘particulate matter emissions’’
includes particles that are larger than
PM2.5 and PM10 and is an indicator
measured under various New Source
Performance Standards (NSPS) (40 CFR
part 60).12 Jefferson County’s February
11, 2011, SIP revision IBR EPA’s
definition for regulated NSR pollutant
for condensables (at 40 CFR
52.21(b)(50)(vi)), including the term
‘‘particulate matter emissions’’, as
promulgated in the NSR PM2.5 Rule.
EPA’s review of Jefferson County’s
February 11, 2011, SIP revision with
regards to the NSR PM2.5 Rule
condensable provision is provided
below in Section III.
C. EPA’s Analysis of Jefferson County’s
SIP Revision To Adopt the NSR PM2.5
PSD Permitting Requirements
Jefferson County’s Regulation 2.05—
Prevention of Significant Deterioration
of Air Quality IBR the provisions at 40
CFR 52.21, as amended in the NSR
PM2.5 Rule for PSD. Specifically,
Jefferson County’s June 1, 2009, and
February 8, 2011, proposed SIP
revisions IBR the following NSR PM2.5
provisions for PSD: (1) Requirement for
NSR permits to address directly emitted
PM2.5 and precursor pollutants; (2)
significant emission rates for direct
12 In addition to the NSPS for PM, it is noted that
states regulated ‘‘particulate matter emissions’’ for
many years in their SIPs for PM, and the same
indicator has been used as a surrogate for
determining compliance with certain standards
contained in 40 CFR part 63, regarding National
Emission Standards for Hazardous Air Pollutants.
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PM2.5 and precursor pollutants (SO2 and
NOX); (3) PSD and NNSR requirement of
states to address condensable PM in
establishing enforceable emission limits
for PM10 or PM2.5; and (4) PM2.5
emission offsets Regarding the PM10
‘‘grandfathering’’ provision, Jefferson
County’s SIP revisions include the
provision at 40 CFR 52.21(i)(1)(ix)
promulgated in the NSR PM2.5 Rule. As
mentioned in Section III.B, EPA took
final action to repeal the PM10
grandfathering provision on May 18,
2011. See 76 FR 28646. Therefore, EPA
is not taking action to approve this
provision into the Jefferson County
portion of the Kentucky SIP. Jefferson
County will need to update its PSD
provisions to reflect the repeal of the
PM10 grandfathering provision in federal
regulations at 40 CFR 52.21. At this time
Jefferson County’s PSD regulations are
approvable because they are at least as
stringent as the current federal
regulations, and are consistent with
section 110 of the CAA.
Jefferson County’s February 11, 2011
SIP revision also IBR, into the Jefferson
County portion of the Kentucky SIP,
PSD regulations regarding the
requirement to address condensable PM
in applicability determinations and in
establishing enforceable emission limits
in PSD and NNSR permits, as
established in the NSR PM2.5 Rule. As
discussed above in Section III.B, under
a separate action, EPA has proposed to
correct the inadvertent inclusion of
‘‘particulate matter emissions’’ in the
definition of ‘‘regulated NSR pollutant’’
as an indicator for which condensable
emissions must be addressed. See 77 FR
75656 (March 16, 2012). Further, on
May 14, 2012, the State of Kentucky, on
behalf of LMAPCD, provided a letter to
EPA with clarification of Jefferson
County’s intent in light of EPA’s March
12, 2012, proposed rulemaking.
Specifically, in the letter, the State of
Kentucky requested that EPA not
approve (into the Jefferson County
portion of the SIP) the term ‘‘particulate
matter emissions’’ (at Regulation 2.05)
as part of the definition for ‘‘regulated
NSR pollutant’’ that condensable
emissions be accounted for in
applicability determinations and in
establishing emissions limitations for
PM. Therefore given the state’s and
LMAPCD’s request and EPA’s intention
to amend the definition of ‘‘regulated
NSR pollutant,’’ EPA is not proposing
action to approve the terminology
‘‘particulate matter emissions’’ into the
Jefferson County portion of the
Kentucky SIP (at Regulation 2.05) for
the condensable provision at the
definition of ‘‘regulated NSR pollutant.’’
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EPA is, however, proposing to approve
into the SIP at Regulation 2.05 the
remaining condensable requirement at
40 CFR 51.166(b)(49)(vi) that
condensable emissions be accounted for
in applicability determinations and in
establishing emissions limitations for
PM2.5 and PM10. EPA has preliminarily
determined that Jefferson County’s June
1, 2009, and February 8, 2011, SIP
revisions are consistent with the NSR
PM2.5 Rule for PSD and with section 110
of the CAA. See NSR PM2.5 Rule, 75 FR
31514.
IV. What is EPA’s proposed action for
the Phase II Rule?
A. Background
Today’s proposed action on Jefferson
County’s portion of the Kentucky SIP
also relates to EPA’s November 29,
2005, Phase II Rule. See 70 FR 71612.
In the Phase II Rule, EPA made a
number of changes to the NSR rules
including: recognizing NOX as an ozone
precursor for PSD purposes; changing
the NNSR rules that establish major
stationary thresholds (marginal,
moderate, serious, severe, and extreme
nonattainment area classifications) and
significant emission rates for the 8-hour
ozone, PM10 and carbon monoxide
NAAQS; revising the criteria for
crediting emission reductions credits
from operation shutdowns and
curtailments as offsets, and changing
offset ratios for marginal, moderate,
serious, severe, and extreme ozone
nonattainment areas. The following
provides the background for the Phase
II Rule requirements for NOX as an
ozone precursor.
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. In addition, as part of the
framework to implement the 1997 8hour ozone NAAQS, EPA promulgated
an implementation rule in two phases
(Phase I and II). The Phase I Rule
(effective on June 15, 2004) provided the
implementation requirements for
designating areas under subpart 1 and
subpart 2 of the CAA. See 69 FR 23951
(April 30, 2004).
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
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ozone NAAQS, such as reasonably
available control technology, reasonably
available control measures, reasonable
further progress, modeling and
attainment demonstrations, NSR, and
the impact to reformulated gas for the
1997 8-hour ozone NAAQS transition.
The Phase II Rule NSR requirements
include, among other changes, a
provision stating that NOX is an ozone
precursor. See 70 FR at 71679. 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 attainment
areas.
The Phase II Rule made changes to
federal regulations 40 CFR 51.165,
51.166 and 52.21 (which governs the
NNSR and PSD permitting programs
respectively). Pursuant to these
requirements, states were required to
submit SIP revisions adopting the
federal requirements of the Phase II Rule
(at 40 CFR 51.165, 51.166 and 52.21)
into their SIP no later than June 15,
2007. Jefferson County’s June 1, 2009,
and February 8, 2011, SIP revisions both
address the federal PSD-only provisions
requirements promulgated in the Phase
II rule recognizing NOX as an ozone
precursor (at 40 CFR 52.21).13
B. EPA’s Analysis of Jefferson County’s
SIP Revisions To Adopt the Phase II
Rule
Jefferson County’s June 1, 2009, SIP
revision updated LMAPCD’s PSD
program to include NOX as an ozone
precursor for PSD permitting, consistent
with changes to the federal regulations
set forth in the Phase II Rule at 40 CFR
52.21. Subsequently, on February 8,
2011, KDAQ, submitted a SIP revision
which included the June 1, 2009,
changes in addition to other federal PSD
permitting updates to the Jefferson
County portion of the Kentucky SIP.
Jefferson County’s SIP revisions IBR the
federal PSD regulations (at 40 CFR
52.21) to include the NOX as a precursor
PSD-only permitting provisions
13 Jefferson County’s SIP submittals proposed for
approval in this rulemaking do not include NNSR
provisions for the Phase II Rule. These permitting
requirements (at Regulation 2.04) are still under
development by LMAPCD.
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promulgated in the Phase II Rule into
the Jefferson County portion of the
Kentucky SIP at Regulation 2.05—
Prevention of Significant Deterioration
of Air Quality (version 10) as of July 1,
2010. EPA has preliminarily determined
that Jefferson County’s SIP revisions are
consistent with the PSD Phase II Rule
permitting requirements and section 110
of the CAA.
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V. What are EPA’s Proposed Actions for
NSR Reform and Reasonable
Possibility?
A. Background
On December 31, 2002 (67 FR 80186),
EPA published final rule changes to 40
CFR parts 51 and 52 regarding the
CAA’s PSD and NNSR programs. On
November 7, 2003 (68 FR 63021), EPA
published a notice of final action on the
reconsideration of the December 31,
2002, final rule changes. The December
31, 2002, and the November 7, 2003,
final actions are collectively referred to
as the ‘‘2002 NSR Reform Rules.’’ The
2002 NSR Reform Rules are part of
EPA’s implementation of parts C and D
of title I of the CAA, 42 U.S.C. 7470–
7515. Part C of title I of the CAA, 42
U.S.C. 7470–7492, consists of the PSD
program and applies to attainment and
unclassifiable areas. Part D of title I of
the CAA, 42 U.S.C. 7501–7515, includes
the NNSR program and applies in
nonattainment areas. Collectively, the
PSD and NNSR programs are referred to
as the ‘‘New Source Review’’ or NSR
programs.
The 2002 NSR Reform Rules made
changes to five areas of the NSR
programs. In summary, the 2002 NSR
Reform Rules: (1) Provide a new method
for determining baseline actual
emissions; (2) adopt an actual-toprojected-actual methodology for
determining whether a major
modification has occurred; (3) allow
major stationary sources to comply with
plant-wide applicability limits (PALs) to
avoid having a significant emissions
increase that triggers the requirements
of the major NSR program; (4) provide
a new applicability provision for
emissions units that are designated
clean units; and (5) exclude pollution
control projects (PCPs) from the
definition of ‘‘physical change or change
in the method of operation.’’ On
November 7, 2003 (68 FR 63021), EPA
published a notice of final action on its
reconsideration of the 2002 NSR Reform
Rules, which added a definition for
‘‘replacement unit’’ and clarified an
issue regarding PALs. For additional
information on the 2002 NSR Reform
Rules, see 67 FR 80186 (December 31,
2002) and https://www.epa.gov/nsr.
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After the 2002 NSR Reform Rules
were finalized and effective (March 3,
2003), industry, state, and
environmental petitioners challenged
numerous aspects of the 2002 NSR
Reform Rules, along with portions of
EPA’s 1980 NSR Rules, 45 FR 52676
(August 7, 1980). On June 24, 2005, the
United States Court of Appeals for the
District of Columbia (D.C. Circuit Court)
issued a decision on the challenges to
the 2002 NSR Reform Rules. New York
v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005).
In summary, the D.C. Circuit Court
vacated portions of the rules pertaining
to clean units and PCPs, remanded a
portion of the rules regarding
recordkeeping and the term ‘‘reasonable
possibility’’ found in 40 CFR 52.21(r)(6)
and 40 CFR 51.165(a)(6) and
51.166(r)(6), and either upheld or did
not comment on the other provisions
included as part of the 2002 NSR
Reform Rules. On June 13, 2007 (72 FR
32526), EPA took final action to revise
the 2002 NSR Reform Rules to remove
from federal law all provisions
pertaining to clean units and the PCPs
exemption that were vacated by the D.C.
Circuit Court.
The 2002 NSR Reform Rules required
that state agencies adopt and submit
revisions to their SIP permitting
programs implementing the minimum
program elements of the 2002 NSR
Reform Rules no later than January 2,
2006. State agencies may meet the
requirements of 40 CFR 51 and the 2002
NSR Reform Rules with different but
equivalent regulations.
With regard to the remanded portions
of the 2002 NSR Reform Rules related to
recordkeeping, the U.S. Court of
Appeals remanded to EPA either to
provide an acceptable explanation for
its ‘‘reasonable possibility’’ standard or
devise an appropriate alternative. To
satisfy the courts, on December 21,
2007, EPA took final action to clarify
that a ‘‘reasonable possibility’’ applies
where source emissions equal or exceed
50 percent of the CAA NSR significance
levels for any pollutant. See ‘‘Prevention
of Significant Deterioration and
Nonattainment New Source Review:
Reasonable Possibility in
Recordkeeping:’’ Final Rule, 72 FR
72607 (December 21, 2007) (the
Reasonable Possibility Rule). The
‘‘reasonable possibility’’ provision
identifies for sources and reviewing
authorities the circumstances under
which a major stationary source
undergoing a modification that does not
trigger major NSR must keep records.
EPA’s December 21, 2007, final rule on
the recordkeeping and reporting
provisions also explains state
obligations with regard to the reasonable
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possibility related rule changes.14 See 72
FR at 72613–72614. The final rule gave
states and local permitting authorities
three years from publication to submit
revisions to incorporate the reasonable
possibility provisions or to submit
notice to EPA that their regulations
fulfill these requirements.
On June 1, 2009, and February 8,
2011, KDAQ, on behalf of LMAPCD,
submitted to EPA revisions to the
Jefferson County portion of Kentucky’s
SIP to IBR the federal PSD permitting
regulations promulgated in the 2002
NSR Reform Rule and the Reasonable
Possibility Rule. EPA is now proposing
to approve these SIP revisions
consistent with section 110 of the CAA.
B. EPA’s Analysis of Jefferson County’s
SIP Revision To Adopt the NSR Reform
and Reasonable Possibility
As mentioned in Section I, LMAPCD’s
PSD Program at Regulation 2.05—
Prevention of Significant Deterioration
for Air Quality establishes the
preconstruction review program as
required under part C of title I of the
CAA. The changes to LMAPCD’s PSD
rules, which EPA is now proposing to
approve into the Jefferson County
portion of the Kentucky SIP, were
established to update the existing PSD
Program to meet the requirements of the
2002 NSR Reform Rules. Jefferson
County’s SIP revisions IBR the 2002
NSR Reform PSD changes regarding
baseline actual emissions, actual-toprojected-actual applicability tests, and
PAL provisions. Jefferson County’s June
1, 2009, and February 8, 2011, SIP
revisions both address the federal PSD
requirements promulgated in the 2002
NSR Reform rules. The proposed
revisions explicitly exclude the PCPs
and clean unit portions of the 2002 NSR
Reform Rules that were vacated as part
of the DC Circuit Court’s June 2005
decision.
With regard to the remanded portions
of the 2002 NSR Reform Rules related to
recordkeeping and EPA’s December 21,
2007, clarifications of the term
‘‘reasonable possibility’’ (72 FR 72607),
Jefferson County’s SIP revisions IBR the
federal revised ‘‘reasonable possibility’’
provisions at 40 CFR 52.21(r)(6). Thus,
LMAPCD’s recordkeeping and reporting
provisions are the same as the federal
14 On January 14, 2009, EPA denied a petition by
the State of New Jersey (submitted February 8,
2008) for reconsideration and stay of the December
21, 2007, final rule for ‘‘reasonable possibility.’’
However, on March 11, 2009, New Jersey reiterated
its request for reconsideration, which EPA granted
on April 24, 2009. EPA has not taken action on the
reconsideration therefore, the current recordkeeping
rules established in the December 21, 2007, final
rule are approvable.
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requirements promulgated in EPA’s
December 21, 2007, final action.
In addition to incorporating the
federal PSD regulations, Jefferson
County’s February 8, 2011, SIP revision
includes a technical support document
(TSD), which assesses the impact of
adopting the 2002 NSR Reform
provisions into Jefferson County’s PSD
permitting program and the air quality
impacts. As mentioned above, LMAPCD
has a SIP-approved PSD program.
However, due to the limited number of
sources in Jefferson County, the
permitting program does not assess
many major PSD permits. In fact, in
nearly ten years, LMAPCD has only
analyzed two projects under PSD. Most
sources in Jefferson County are
permitted through LMAPCD’s minor
source program, which allows sources
to take emission limits to avoid PSD
permitting. Additionally, regarding
criteria pollutants, the TSD explains
that sources typically subject to PSD
permitting (i.e. point sources) have not
been the primary driver for past or
current nonattainment NAAQS
designations in Jefferson County. See
the TSD in the Docket ID No. EPA–R04–
OAR–2011–0227.
LMAPCD’s TSD concluded that
adoption of the 2002 NSR Reform
improvements would not impede the
LMAPCD’s ability to comply with the
NAAQS or any reasonable progress
towards continued maintenance. After
evaluating Jefferson County’s SIP
revision, and the TSD provided with the
February 8, 2011, SIP revision, EPA has
determined that the proposed SIP
revisions to adopt NSR Reform and
reasonable possibility provisions are
consistent with the federal program
requirements for the preparation,
adoption and submittal of
implementation plans for the PSD of air
quality, set forth at 40 CFR 52.21, and
the 2002 NSR Reform Rule.
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VI. What is EPA’s proposed action for
the automatic rescission clause?
A. Jefferson County’s Proposed
Automatic Rescission Clause
Jefferson County’s February 8, 2011,
proposed SIP revision adds a new
section to Regulation 2.05, Section 2—
Effect of Stay, Vacatur, or Withdrawal,
also known as an automatic rescission
clause. This clause provides that in the
event that EPA or a federal court stays,
vacates, or withdraws any section or
subsection of 40 CFR 52.21, that section
or subsection shall automatically be
deemed stayed, vacated or withdrawn
from Jefferson County’s SIP-approved
PSD program at Regulation 2.05. The
period of delay resulting from a stay
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would begin and end for purposes of
Jefferson County’s SIP on the date
specified by EPA in a Federal Register
notice announcing the stay. Likewise,
any provision that is vacated or
withdrawn shall be null and void for
purposes of Jefferson County’s SIP as of
the date specified in the notice of
vacatur or withdrawal published by
EPA in a Federal Register notice.
B. EPA’s analysis of the approvability of
Jefferson County’s automatic rescission
clause
EPA has preliminarily concluded that
Jefferson County’s automatic rescission
clause is approvable. In assessing the
approvability of this provision, EPA
considered two key factors: (1) Whether
the public will be given reasonable
notice of any change to the SIP that
occurs as a result of the automatic
rescission clause, and (2) whether any
future change to the SIP that occurs as
a result of the automatic rescission
clause would be consistent with EPA’s
interpretation of the effect of the
triggering EPA or federal court action
(e.g., the extent of an administrative or
judicial stay). These criteria are derived
from the SIP revision procedures set
forth in the CAA and federal
regulations.
Regarding public notice, CAA section
110(l) provides that any revision to a
SIP submitted by a state to EPA for
approval ‘‘shall be adopted by such
State after reasonable notice and public
hearing.’’ In accordance with CAA
section 110(l), the LMAPCD followed
applicable notice-and-comment
procedures prior to adopting the
automatic rescission clause. Thus, the
public is on notice that the Jefferson
County portion of the Kentucky SIP will
automatically update to reflect any EPA
or federal action that stays, withdraws,
or vacates any portion of 40 CFR 52.21.
In addition, the automatic rescission
clause provides that no change to the
SIP will occur until EPA publishes a
Federal Register notice announcing that
a portion of 40 CFR 52.21 has been
stayed, vacated, or withdrawn. Thus,
the timing and extent of any future SIP
change resulting from the automatic
rescission clause will be clear to both
the regulated community and the
general public.
EPA’s consideration of whether any
SIP change resulting from the proposed
automatic rescission clause would be
consistent with EPA’s interpretation of
the effect of the triggering action on
federal regulations is based on 40 CFR
51.105. Under 40 CFR 51.105,
‘‘[r]evisions of a plan, or any portion
thereof, will not be considered part of
an applicable plan until such revisions
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Fmt 4702
Sfmt 4702
33371
have been approved by the
Administrator in accordance with this
part.’’ See 40 CFR 51.105. While EPA is
approving the automatic updating of the
Jefferson County portion of the
Kentucky SIP to reflect the stay,
withdrawal or vacatur of any section or
subsection of 40 CFR 52.21, there could
be varying interpretations of the timing
and extent of changes to 40 CFR 52.21
resulting from a given EPA or federal
court action. By tying the automatic
updating of the SIP to EPA’s publication
of a Federal Register notice announcing
the change to 40 CFR 52.21, the
proposed automatic rescission clause
ensures that any change to the SIP will
be consistent with EPA’s interpretation
of the triggering action.
VII. Proposed Actions
EPA is proposing to approve Jefferson
County’s June 1, 2009, and February 8,
2011, SIP revisions which adopt federal
requirements for NSR PSD permitting.
Jefferson County’s SIP revisions consist
of changes to the LMAPCD Air Quality
Regulation 2.05—Prevention of
Significant Deterioration of Air Quality
and address several NSR PSD permitting
requirements promulgated at 40 CFR
52.21. Specifically, Jefferson County’s
June 1, 2009, SIP revision adopts federal
regulations relating to PSD requirements
for the NSR PM2.5 Rule, the Phase II
Rule, the 2002 NSR Reform Rule, and
the NSR Reasonable Possibility Rule
into the Jefferson County portion of the
Kentucky SIP. Jefferson County’s
February 8, 2011, proposed SIP revision
includes all of the aforementioned
updates to LMAPCD’s PSD regulations
but also provides Jefferson County with
the authority to regulate GHGs under its
PSD program, establishes appropriate
emissions thresholds for determining
PSD applicability with respect to new
and modified GHG-emitting sources (in
accordance with EPA’s Tailoring Rule),
and incorporates an automatic
rescission clause for 40 CFR 52.21
regulations. EPA has preliminarily
determined that these SIP revisions are
approvable because they are in
accordance with the CAA and EPA
regulations regarding PSD permitting. In
addition, EPA is proposing to rescind
the FIP promulgated on January 14,
2011 at 40 CFR 52.37(b)(7) once the
proposed GHG PSD permitting revision
has been approved into the Jefferson
County portion of the Kentucky SIP.
VIII. 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.
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Federal Register / Vol. 77, No. 109 / Wednesday, June 6, 2012 / Proposed Rules
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, these proposed
actions merely approve state law as
meeting federal requirements and do not
impose additional requirements beyond
those imposed by state law. For that
reason, these proposed actions:
• Are 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);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are 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.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory
action subject to Executive Order 13211
(66 FR 28355, May 22, 2001);
• Are 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
• Do 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 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, Greenhouse Gas,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
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requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 24, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–13694 Filed 6–5–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0238; FRL–9681–8]
Approval and Promulgation of
Implementation Plans; South Carolina;
110(a)(1) and (2) Infrastructure
Requirements for the 1997 and 2006
Fine Particulate Matter National
Ambient Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the State Implementation Plans (SIP),
submitted by the State of South
Carolina, through the Department of
Health and Environmental Control
(DHEC), as demonstrating that the State
meets the requirements of sections
110(a)(1) and (2) of the Clean Air Act
(CAA or the Act) for the 1997 annual
and 2006 24-hour fine particulate matter
(PM2.5) 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, which is
commonly referred to as an
‘‘infrastructure’’ SIP. South Carolina
certified that the South Carolina SIP
contains provisions that ensure the 1997
annual and 2006 24-hour PM2.5 NAAQS
is implemented, enforced, and
maintained in South Carolina (hereafter
referred to as ‘‘infrastructure
submission’’). South Carolina’s
infrastructure submissions, provided to
EPA on March 14, 2008, and on
September 18, 2009, addressed all the
required infrastructure elements for the
1997 annual and 2006 24-hour PM2.5
NAAQS with the exception of section
110(a)(2)(E)(ii) and 110(a)(2)(G) which
were submitted by South Carolina on
April 3, 2012. South Carolina’s April 3,
2012, submittal is being addressed in a
separate action.
DATES: Written comments must be
received on or before July 6, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
SUMMARY:
PO 00000
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Fmt 4702
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OAR–2012–0238, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2012–
0238,’’ 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, Chief, 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–2012–
0238. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at 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 www.regulations.gov
or email, information that you consider
to be CBI or otherwise protected. The
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 email comment directly
to EPA without going through www.
regulations.gov, your email 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
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]]>Agencies
[Federal Register Volume 77, Number 109 (Wednesday, June 6, 2012)]
[Proposed Rules]
[Pages 33363-33372]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13694]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2011-0227; FRL-9681-7]
Approval and Promulgation of Implementation Plans; Kentucky;
Approval of Revisions to the Jefferson County Portion of the Kentucky
SIP; New Source Review; Prevention of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 33364]]
SUMMARY: EPA is proposing to approve multiple revisions to the
Jefferson County portion of the Kentucky State Implementation Plan
(SIP), submitted by the Commonwealth of Kentucky, through the Kentucky
Division for Air Quality (KDAQ), to EPA in two submittals dated June 1,
2009, and February 8, 2011. These proposed revisions were submitted by
KDAQ on behalf of the Louisville Metro Air Pollution Control District
(LMAPCD), (also referred to as Jefferson County) and modifies the
LMAPCD New Source Review (NSR) Prevention of Significant Deterioration
(PSD) permitting regulations. The proposed revisions incorporate by
reference (IBR) federal NSR PSD requirements promulgated in the
Greenhouse Gas (GHG) Tailoring Rule (hereafter referred to as the ``GHG
Tailoring Rule''), requirements for the fine particulate matter (also
known as PM2.5) national ambient air quality standards
(NAAQS) as amended in EPA's 2008 NSR PM2.5 Implementation
Rule (hereafter referred to as the ``NSR PM2.5 Rule''), the
1997 8-Hour Ozone NAAQS Implementation Rule NSR Update Phase II
(hereafter referred to as the ``Phase II Rule''), and the 2002 NSR
Reform Rule, into the Jefferson County portion of the Kentucky SIP. EPA
is proposing approval of Jefferson County's June 1, 2009, and February
8, 2011, SIP revisions because the Agency has determined that these SIP
revisions are in accordance with the Clean Air Act (CAA or Act) and EPA
regulations regarding the PSD permitting program.
DATES: Comments must be received on or before July 6, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0227 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562-9019.
4. Mail: EPA-R04-OAR-2011-0227, 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, Chief, 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-
2011-0227.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at 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
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The 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 email comment directly to EPA without
going through www.regulations.gov, your email 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 https://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 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
Jefferson County portion of 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's telephone number is (404) 562-9352; email
address: bradley.twunjala@epa.gov. For information regarding the GHG
Tailoring Rule, 2002 NSR Reform and NSR PM2.5 Rule, contact
Yolanda Adams, Air Permits Section, at the same address above. Ms.
Adams' telephone number is (404) 562-9214; email address:
adams.yolanda@epa.gov. For information regarding the Phase II Rule and
ozone NAAQS, contact Jane Spann, Regulatory Development Section, at the
same address above. Ms. Spann's telephone number is (404) 562-9029;
email address: spann.jane@epa.gov. For information regarding the
PM2.5 NAAQS, contact Mr. Joel Huey, Regulatory Development
Section, at the same address above. Mr. Huey's telephone number is
(404) 562-9104; email address: huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What actions are proposed in this notice?
II. What is EPA's proposed action for GHG-emitting sources?
III. What is EPA's proposed action for the NSR PM2.5
Rule?
IV. What is EPA's proposed action for the Phase II Rule?
V. What are EPA's proposed actions for NSR Reform and Reasonable
Possibility?
VI. What is EPA's proposed action for the automatic rescission
clause?
VII. Proposed Actions
VIII. Statutory and Executive Order Reviews
I. What actions are proposed in this notice?
On June 1, 2009, and February 8, 2011, the Commonwealth of Kentucky
through the KDAQ (and on behalf of LMAPCD) submitted two SIP revisions
to EPA for approval into the Jefferson County portion of the Kentucky
SIP to adopt federal NSR PSD permitting requirements. The SIP revisions
consist of changes to the LMAPCD Air Quality Regulations, Regulation 2
Permit Requirements: Regulation 2.05--Prevention of Significant
Deterioration
[[Page 33365]]
of Air Quality and address several NSR PSD permitting requirements
promulgated at 40 CFR 52.21. Specifically, the June 1, 2009, SIP
revision: (1) Incorporates provisions for implementing the PSD program
for the PM2.5 NAAQS as promulgated in the NSR
PM2.5 Rule,\1\ 73 FR 28321 (May 16, 2008); (2) adopts PSD
provisions related to the implementation of the 1997 8-hour ozone Phase
II Rule including nitrogen oxides (NOX) as a precursor to
ozone, 70 FR 71612 (November 29, 2005); and (3) adopts federal PSD
regulations established in the 2002 NSR Reform Rules, 67 FR 80186
(December 31, 2002) and the NSR Reasonable Possibility Rule, 72 FR
72607 (December 21, 2007). These PSD permitting provisions became
effective in Jefferson County on May 20, 2009. The February 8, 2011,
SIP revision provides Jefferson County with the authority to regulate
GHG under its PSD program and establishes appropriate emission
thresholds for determining which new stationary sources and
modification projects become subject to LMAPCD's PSD permitting
requirements for their GHG emissions as promulgated in the GHG
Tailoring Rule, 75 FR 31514 (June 3, 2010). These GHG PSD applicability
provisions became effective in Jefferson County on November 17, 2010.
In addition, the February 8, 2011, submittal adopts a provision that
would automatically render Jefferson County's Regulation 2.05 or a
portion thereof invalid in the wake of certain court decisions or other
events (the ``automatic rescission clause''). Approval of Jefferson
County's GHG permitting regulations also includes a proposal to
simultaneously rescind the federal implementation plan (FIP) that EPA
promulgated on January 14, 2011. See 76 FR 2581. For more information
on the Jefferson County FIP see Section II of this rulemaking. Pursuant
to section 110 of the CAA, EPA is proposing to approve these changes
into the Jefferson County portion of the Kentucky SIP.
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\1\ With respect to the NSR PM2.5 Rule, Phase II Rule
and NSR Reform, Jefferson County's SIP revisions only address PSD
requirements at Regulation 2.05. The nonattainment NSR (NNSR)
provisions for Jefferson County (Regulation 2.04) for these
provisions are still under development by LMAPCD.
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In addition to incorporating the changes discussed above, Jefferson
County's SIP revisions also include PSD permitting provisions that: (1)
Exclude facilities that produce ethanol through a natural fermentation
process from the definition of ``chemical process plants'' in the major
NSR source permitting program as amended in the Ethanol Rule, 72 FR
24060 (May 1, 2007); and (2) IBR changes pursuant to EPA's Fugitive
Emissions Rule, 73 FR 77882 (December 19, 2008).\2\ In today's proposed
rulemaking, EPA is not proposing to take action on LMAPCD's changes to
its PSD regulations to adopt provisions promulgated in the Ethanol Rule
nor is EPA proposing to take action on LMAPCD's changes to incorporate
the provisions of the Fugitive Emission Rule.
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\2\ On March 31, 2010, EPA stayed the Fugitive Emissions Rule
(73 FR 77882) for 18 months to October 3, 2011, to allow the Agency
time to propose, take comment and issue a final action regarding the
inclusion of fugitive emissions in NSR applicability determinations.
This stay was established as a result of EPA granting the Natural
Resource Defense Council's petition for reconsideration on the
original Fugitive Emissions Rule. See 73 FR 77882 (December 19,
2008). On March 30, 2011 (76 FR 17548), EPA proposed an interim rule
which superseded the March 31, 2010, stay and clarified and extended
the stay of the Fugitive Emission Rule until EPA completes its
reconsideration. The interim rule simply reverts the CFR text back
to the language that existed prior to the Fugitive Emissions Rule
changes in the December 19, 2008, rulemaking. EPA plans to issue a
final rule affirming the interim rule as final. The final rule will
remain in effect until EPA completes its reconsideration.
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LMAPCD IBR the federal PSD permitting requirements found at 40 CFR
52.21 to update its permitting program at Regulation 2.05. Jefferson
County's practice for revising its PSD regulations is to IBR into its
SIP the version of the Code of Federal Regulations (at 40 CFR 52.21)
that is in effect as of a specified date. LMAPCD's Regulation 2.05
contains the preconstruction review program that provides for the
prevention of significant deterioration of ambient air quality as
required under part C of title I of the CAA (the PSD program).
Jefferson County's June 1, 2009, SIP revision, which provided version 9
of LMAPCD's Regulation 2.05, IBR the federal PSD regulations as set
forth at 40 CFR 52.21, and as amended as of July 1, 2008. Subsequently,
the February 8, 2011, SIP revision, which provided version 10 of
LMAPCD's Regulation 2.05, IBR federal PSD regulations as set forth at
40 CFR 52.21, and as amended as of July 1, 2010, thereby superseding
version 9 of Regulation 2.05. Throughout this rulemaking, EPA will
refer to the June 1, 2009, and February 8, 2011, SIP revisions as the
``Jefferson County's SIP revisions.''
II. What is EPA's proposed action for GHG-emitting sources?
On February 8, 2011, KDAQ submitted a request to EPA to approve
changes to the Jefferson County portion of the Kentucky SIP to
incorporate federal requirements for NSR PSD permitting. These adopted
rules became effective in Jefferson County on November 17, 2010. These
amendments provide Jefferson County with the authority to regulate GHG
under its PSD program and establish PSD applicability thresholds for
GHG emissions in LMAPCD's PSD regulations at the same emissions
thresholds and in the same timeframes as those specified by EPA in the
GHG Tailoring Rule. By incorporating the GHG Tailoring Rule thresholds
into the Jefferson County portion of the Kentucky SIP, KDAQ is ensuring
that smaller GHG sources emitting less than these thresholds will not
be subject to PSD permitting requirements for their GHG emissions. In
today's action, pursuant to section 110 of the CAA, EPA is proposing to
approve these changes into the Jefferson County portion of the Kentucky
SIP.\3\ Approval of Jefferson County's GHG permitting regulations also
includes a proposal to simultaneously rescind the FIP that EPA
promulgated on January 14, 2011. See 76 FR 2581. More information
regarding Jefferson County's FIP is summarized below. This section
briefly summarizes EPA's GHG-related actions that provide the
background for today's proposed action. More detailed discussion of the
background is found in the preambles for those actions cited herein.
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\3\ The GHG Tailoring Rule also applies to the title V program,
which requires operating permits for existing sources. However,
today's action does not affect LMAPCD's title V program.
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A. Background
EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part are distinct from
one another, establish the overall framework for today's final action
on the Jefferson County portion of the Kentucky SIP. Four of these
actions include, as they are commonly called, the ``Endangerment
Finding'' and ``Cause or Contribute Finding,'' \4\ which EPA issued in
a single final action; the ``Johnson Memo Reconsideration;'' \5\ the
``Light-Duty Vehicle Rule;'' \6\ and the ``Tailoring Rule.'' Taken
together and in conjunction with the CAA, these actions established
regulatory requirements for GHGs emitted from new motor vehicles and
new motor vehicle engines;
[[Page 33366]]
determined that such regulations, when they took effect on January 2,
2011, subjected GHGs emitted from stationary sources to PSD
requirements; and limited the applicability of PSD requirements to GHG
sources on a phased-in basis. EPA took this last action in the GHG
Tailoring Rule, which, more specifically, established appropriate GHG
emission thresholds for determining the applicability of PSD
requirements to GHG-emitting sources. In the GHG Tailoring Rule, EPA
tailored the applicability criteria that determine which GHG emission
sources become subject to the PSD program of the CAA to relieve
overwhelming permitting burdens that would, in the absence of the rule,
fall on permitting authorities and sources. See 75 FR 31514, (June 3,
2010). As EPA explained in the GHG Tailoring Rule, the threshold
limitations are necessary because without them PSD would apply to all
stationary sources that emit or have the potential to emit more than
100 or 250 tons of GHG per year as of January 2, 2011. January 2, 2011,
was the date when EPA's Light-Duty Vehicle Rule took effect, imposing
control requirements for the first time on carbon dioxide and other
GHGs. EPA asked permitting authorities to confirm that they would
follow this implementation approach for their programs, and if they
could not, to notify EPA so that the Agency could take appropriate
follow-up action to narrow \7\ federal approval of their programs
before GHGs became subject to PSD permitting on January 2, 2011. See 75
FR at 31518.
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\4\ ``Endangerment and Cause or Contribute Finding for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\5\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
\6\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\7\ On December 30, 2010, (75 FR 82536) EPA promulgated the rule
entitled ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans; Final Rule; (the ``Narrowing Rule'').
In the Narrowing Rule, EPA explained that by ``narrowing'' its prior
approval of a SIP-approved PSD program, EPA could ensure that for
federal purposes, GHG sources below the Tailoring Rule's thresholds
would not be obligated to hold PSD permits until the state develops
and submits a revised PSD program that EPA approves, either because
the state adopts the Tailoring Rule thresholds or because the state
demonstrates that it has adequate resources to administer a program
covering GHGs at lower applicability thresholds. See 75 FR at 31518.
However, as discussed later in this section, EPA issued a SIP call
and FIP for the Jefferson County jurisdiction, and therefore did not
narrow federal approval of LMAPCD's PSD program.
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Recognizing that some states had SIP-approved PSD programs that did
not apply PSD to GHGs, EPA issued a SIP call and, for some of these
states, a FIP. On December 13, 2010, EPA finalized the rulemaking
entitled ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call,'' Final Rule (hereafter referred to as the ``SIP call''). See 75
FR 77698. The rule finalized findings of substantial inadequacy and SIP
call for 15 state and local permitting authorities (including Jefferson
County) where the existing SIP-approved PSD program did not provide
authority to regulate GHGs. EPA explained that if a state identified in
the SIP call failed to submit the required corrective SIP revision by
the applicable deadline, EPA would promulgate a FIP under CAA section
110(c)(1)(A) for that state to govern PSD permitting for GHGs. LMAPCD
requested a SIP call deadline of January 1, 2011, to provide its
corrective SIP with the understanding that EPA would put a FIP in place
for Jefferson County soon after that date if a SIP revision was not
provided. On January 14, 2011, EPA finalized a FIP for Jefferson County
in the rulemaking ``Action to Ensure Authority to Issue Permits Under
the Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan for Jefferson
County, KY,'' Final Rule (hereafter referred to as ``Jefferson County
GHG FIP''). See 76 FR 2581. This rulemaking established a FIP for
Jefferson County because LMAPCD, through KDAQ, was unable to submit, by
its January 1, 2011, deadline, the corrective SIP revision to apply its
PSD program to sources of GHG.\8\ The FIP was put in place to ensure
that a permitting authority (i.e., EPA) would be available to issue
preconstruction PSD permits to GHG-emitting sources in Jefferson
County, if necessary.
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\8\ EPA's action on January 14, 2011, to put a FIP in place for
Jefferson County, Kentucky does not relate to the rest of Kentucky,
as the Commonwealth, through KDAQ submitted a corrective SIP
revision to address the remainder of Kentucky on December 13, 2010.
KDAQ's SIP revision to adopt the GHG Tailoring Rule thresholds for
all portions of Kentucky, except Jefferson County, was approved by
EPA on December 29, 2010 (75 FR 81868).
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B. Jefferson County's Actions
In response to EPA's request in the GHG Tailoring Rule that
permitting authorities confirm whether their SIPs provide authority to
implement the GHG Tailoring Rule thresholds, LMAPCD provided a letter
(commonly referred to as the 60-day letter) to EPA on August 2, 2010,
explaining that LMAPCD * * * ``[i]s authorized in its existing SIP to
apply the meaning of the term ``subject to regulation'' established by
EPA in the GHG Tailoring Rule in both the PSD and title V permitting
programs.'' LMAPCD further explained that it would need to amend its
SIP for Jefferson County to enable it to implement the GHG Tailoring
Rule thresholds. See the docket for this proposed rulemaking for a copy
of LMAPCD's 60-day letter.
However, on October 4, 2010, in response to EPA's request in the
September 2, 2010, proposed SIP call Rule, LMAPCD submitted a letter to
EPA changing its view of whether Jefferson County's SIP-approved PSD
regulations provided authority to regulate GHGs (referred to as the 30-
day letter). Jefferson County's 30-day letter acknowledged that while
its existing SIP could be interpreted as providing the Agency authority
to issue PSD permits to GHG-emitting sources, this interpretation would
be a departure from its past practice of utilizing rulemaking
procedures to update the SIP to incorporate revised EPA regulations.''
See Docket ID: EPA-R04-OAR-2011-0227 for LMAPCD's October 4, 2010, 30-
day letter. In a follow-up letter dated October 19, 2010, LMAPCD
reiterated its position that it did not have the authority, under its
existing SIP, to issue PSD permits to regulate GHG-emitting sources
without going through rulemaking. See DOCKET ID: EPA-R04-OAR-2011-0227
for LMAPCD's October 19, 2010, follow-up letter.
With the final GHG SIP call (75 FR 77698) and the Jefferson County
GHG FIP rulemaking (76 FR 2581), EPA took steps to ensure that LMAPCD,
which did not interpret its exiting SIP-approved PSD program to provide
authority to issue PSD permits to GHG-emitting sources, would not be at
risk for permitting interruptions related to GHG by either having EPA
issue permits for GHG through a FIP or be in a position for EPA to use
delegation to allow LMAPCD to issue permits related to GHGs. More
detail regarding EPA's analysis of the proposed changes to the
Jefferson County portion of the Kentucky SIP (as provided in the
February 8, 2011, revision) is provided below.
C. EPA's Analysis of Jefferson County's SIP Revision To Adopt the GHG
Tailoring Rule
On February 8, 2011, KDAQ, on behalf of LMAPCD, submitted to EPA a
revision to the Jefferson County portion of Kentucky's SIP to IBR NSR
PSD requirements for GHG. Specifically, the February 8, 2011, SIP
revision includes changes to LMAPCD's Regulation 2.05--Prevention of
Significant Deterioration of Air Quality (version 10) to provide
authority to LMAPCD to regulate GHG under the PSD program; and
establish appropriate PSD applicability
[[Page 33367]]
thresholds for GHGs, consistent with EPA's Tailoring Rule.
LMAPCD is currently the SIP-approved permitting authority for the
PSD program in Jefferson County, Kentucky. As mentioned above, LMAPCD
does not interpret the current SIP-approved version of its PSD
regulations at Regulation 2.05 (i.e., version 9), which IBR the federal
PSD regulations, to be applicable to GHG. In correspondences dated
October 4, 2010, and October 19, 2010, LMAPCD notified EPA that it did
not have the authority to regulate GHG under the PSD program, and thus
was in the process of revising its regulations (the subject of this
proposed action) to provide LMAPCD with this authority. The February 8,
2011 SIP revision IBR the federal PSD regulations at 40 CFR 52.21 as of
July 2010 into Jefferson County Regulation 2.05 to include the relevant
federal GHG Tailoring Rule revisions that provide LMAPCD with the
authority to regulate GHG under the PSD program and establish the
thresholds for GHG permitting applicability. The GHG Tailoring Rule
changes that this proposed action would incorporate into the Jefferson
County portion of Kentucky's SIP define the term ``subject to
regulation'' for the PSD program and define ``greenhouse gases'' and
``tons per year (tpy) carbon dioxide equivalent emissions''
(CO2e). Additionally, the changes specify the methodology
for calculating an emissions increase for GHG, the applicable
thresholds for GHG emissions subject to PSD, and the schedule for when
the applicability thresholds take effect. See 75 FR at 31606-31607. EPA
has preliminarily determined that these provisions, which provide
LMAPCD with the authority to regulate GHG under the PSD program and
establish the thresholds for GHG permitting applicability, are
consistent with EPA's PSD regulations for GHG emitting sources as
promulgated in the GHG Tailoring Rule and section 110 of the CAA.
Therefore, EPA is proposing to approve the GHG PSD permitting revision
into the Jefferson County portion of Kentucky's SIP. See GHG Tailoring
Rule, 75 FR at 31561. In addition, EPA is proposing to rescind the FIP
promulgated January 14, 2011, codified in 40 CFR 52.37(b)(7), that
ensures the availability of a PSD-permitting authority for GHG-emitting
sources in Jefferson County, Kentucky. This FIP will no longer be
required once the proposed GHG PSD permitting revision has been
approved into the Jefferson County portion of Kentucky's SIP.
III. What is EPA's proposed action for the NSR PM2.5 Rule?
A. Background on Fine Particulate Matter
Today's proposed action to revise the Jefferson County portion of
the Kentucky SIP also regards EPA's ``Implementation of the New Source
Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers
(PM2.5),'' Final Rule (NSR PM2.5 Rule), 73 FR
28321 (May 16, 2008). In the NSR PM2.5 Rule, EPA finalized
regulations to implement the NSR program for the PM2.5
NAAQS. As a result of EPA's final NSR PM2.5 Rule, states
were required to provide SIP revisions no later than May 16, 2011, to
address these requirements for both the PSD and NNSR programs.
Jefferson County's June 1, 2009, and February 8, 2011, SIP revisions
both address the PSD requirements for the PM2.5 NAAQS. More
detail on the NSR PM2.5 Rule can be found in EPA's May 16,
2008, final rule and is summarized below.
Fine particles in the atmosphere are made up of a complex mixture
of components. Common constituents include sulfate (SO4);
nitrate (NO3); ammonium; elemental carbon; a great variety
of organic compounds; and inorganic material (including metals, dust,
sea salt, and other trace elements) generally referred to as
``crustal'' material, although it may contain material from other
sources. Airborne particulate matter (PM) with a nominal aerodynamic
diameter of 2.5 micrometers or less (a micrometer is one-millionth of a
meter, and 2.5 micrometers is less than one-seventh the average width
of a human hair) are considered to be ``fine particles'' and are also
known as PM2.5. ``Primary'' particles are emitted directly
into the air as a solid or liquid particle (e.g., elemental carbon from
diesel engines or fire activities, or condensable organic particles
from gasoline engines). ``Secondary'' particles (e.g., SO4
and NO3) form in the atmosphere as a result of various
chemical reactions.
The health effects associated with exposure to PM2.5
include potential aggravation of respiratory and cardiovascular disease
(i.e., lung disease, decreased lung function, asthma attacks and
certain cardiovascular issues). Epidemiological studies have indicated
a correlation between elevated PM2.5 levels and premature
mortality. Groups considered especially sensitive to PM2.5
exposure include older adults, children, and individuals with heart and
lung diseases. For more details regarding health effects and
PM2.5 see EPA's Web site at https://www.epa.gov/air/urbanair/pm/ (See heading ``Health'').
On July 18, 1997, EPA revised the NAAQS for PM to add new standards
for fine particles, using PM2.5 as the indicator.
Previously, EPA used PM10 (inhalable particles smaller than
or equal to 10 micrometers in diameter) as the indicator for the PM
NAAQS. EPA established health-based (primary) annual and 24-hour
standards for PM2.5, setting an annual standard at a level
of 15.0 micrograms per cubic meter ([mu]g/m\3\) and a 24-hour standard
at a level of 65 [mu]g/m\3\. See 62 FR 38652. At the time the 1997
primary standards were established, EPA also established welfare-based
(secondary) standards identical to the primary standards. The secondary
standards are designed to protect against major environmental effects
of PM2.5, such as visibility impairment, soiling, and
materials damage. On October 17, 2006, EPA revised the primary and
secondary 24-hour NAAQS for PM2.5 to 35 [mu]g/m\3\ and
retained the existing annual PM2.5 NAAQS of 15.0 [mu]g/m\3\.
See 71 FR 61236.
B. Implementation of NSR for the PM2.5 NAAQS
After EPA promulgated the NAAQS for PM2.5 in 1997, the
Agency issued a guidance document entitled ``Interim Implementation of
New Source Review Requirements for PM2.5.'' John S. Seitz,
EPA, October 23, 1997 (the ``Seitz memo''). The Seitz memo was designed
to help states implement NSR requirements pertaining to the new
PM2.5 NAAQS in light of technical difficulties posed by
PM2.5 at that time. Specifically, the Seitz memo stated:
``PM-10 may properly be used as a surrogate for PM-2.5 in meeting NSR
requirements until these difficulties are resolved'' (the
PM10 Surrogate Policy).
EPA also issued a guidance document entitled ``Implementation of
New Source Review Requirements in PM2.5 Nonattainment
Areas'' (the ``2005 PM2.5 Nonattainment NSR Guidance''), on
April 5, 2005, the date that EPA's PM2.5 nonattainment area
designations became effective for the 1997 NAAQS. This memorandum
provided guidance on the implementation of the nonattainment major NSR
provisions in PM2.5 nonattainment areas in the interim
period between the effective date of the PM2.5 nonattainment
area designations (April 5, 2005) and EPA's promulgation of final
PM2.5 NNSR regulations. Besides re-affirming the
continuation of the PM10 Surrogate Policy for
PM2.5 attainment areas set forth in the Seitz memo, the 2005
PM2.5 Nonattainment NSR Guidance recommended that until EPA
promulgated the PM2.5 major NSR
[[Page 33368]]
regulations, ``[s]tates should use a PM10 nonattainment
major NSR program as a surrogate to address the requirements of
nonattainment major NSR for the PM2.5 NAAQS.''
On May 16, 2008, EPA finalized a rule to implement the 1997
PM2.5 NAAQS, including changes to the NSR program. See 73 FR
28321. The 2008 NSR PM2.5 Rule revised the NSR program
requirements to establish the framework for implementing
preconstruction permit review for the PM2.5 NAAQS in both
attainment and nonattainment areas. The 2008 NSR PM2.5 Rule
requires that major stationary sources seeking permits must begin
directly satisfying the PM2.5 requirements, as of the
effective date of the rule, rather than relying on PM10 as a
surrogate, with two exceptions. The first exception is a
``grandfathering'' provision in the federal PSD program at 40 CFR
52.21(i)(1)(xi). This grandfathering provision applied to sources that
had applied for, but had not yet received, a final and effective PSD
permit before the July 15, 2008, effective date of the May 2008 final
rule. The second exception was that states with SIP-approved PSD
programs could continue to implement the Seitz Memo's PM10
Surrogate Policy for up to three years (until May 2011) or until the
individual revised state PSD programs for PM2.5 are approved
by EPA, whichever comes first. For additional information on the NSR
PM2.5 Rule, see 73 FR 28321.\9\
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\9\ Additional information on this issue can also be found in an
August 12, 2009, final order on a title V petition describing the
use of PM10 as a surrogate for PM2.5. In the
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3,
Order on Petition (August 12, 2009) (available at https://www.epa.gov/region07/air/title5/petitiondb/petitions/lg_e_2nddecision2006.pdf).
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On February 11, 2010, EPA proposed to repeal the grandfathering
provision for PM2.5 contained in the federal PSD program at
40 CFR 52.21(i)(1)(xi) and to end early the PM10 Surrogate
Policy applicable in states that have a SIP-approved PSD program. See
75 FR 6827. In support of this proposal, EPA explained that the
PM2.5 implementation issues that led to the adoption of the
PM10 Surrogate Policy in 1997 had been largely resolved to a
degree sufficient for sources and permitting authorities to conduct
meaningful permit-related PM2.5 analyses. On May 18, 2011,
EPA took final action to repeal the PM2.5 grandfathering
provision at 40 CFR 52.21(i)(1)(xi). See 76 FR 28646. This final action
ended the use of the 1997 PM10 Surrogate Policy for PSD
permits under the federal PSD program at 40 CFR 52.21. In effect, any
PSD permit applicant previously covered by the grandfathering provision
(for sources that completed and submitted a permit application before
July 15, 2008) \10\ that did not have a final and effective PSD permit
before the effective date of the repeal will not be able to rely on the
1997 PM10 Surrogate Policy to satisfy the PSD requirements
for PM2.5 unless the application includes a valid surrogacy
demonstration. See 76 FR 28646. In the February 8, 2011, SIP revision,
LMAPCD elected to IBR the grandfathering provision at 40 CFR
52.21(i)(1)(xi) in its PSD regulations at Regulation 2.05. However,
since the rule is repealed, EPA is not taking action to approve this
provision into the Jefferson County portion of the Kentucky SIP.
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\10\ Sources that applied for a PSD permit under the federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 PM10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 73 FR 28321.
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The NSR PM2.5 Rule also established the following NSR
requirements to implement the PM2.5 NAAQS: (1) Require NSR
permits to address directly emitted PM2.5 and precursor
pollutants; (2) establish significant emission rates for direct
PM2.5 and precursor pollutants (including sulfur dioxide
(SO2) and NOX); (3) establish PM2.5
emission offsets; and (4) require states to account for gases that
condense to form particles (``condensables'') in PM2.5 and
PM10 emission limits in PSD or nonattainment NSR permits. In
addition, the NNSR PM2.5 Rule gives states the option of
allowing interpollutant trading for the purpose of precursor offsets
under the PM2.5 NNSR program.\11\ Jefferson County's June 1,
2009, and February 8, 2011, SIP revisions address only the PSD
requirements related to EPA's May 16, 2008, NSR PM2.5 Rule.
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\11\ On July 21, 2011, as a result of reconsidering the
interpollutant (IPT) policy, EPA issued a memorandum indicating that
the existing preferred precursor offset ratios associated with the
IPT policy and promulgated in the NSR PM2.5 Rule were no
longer considered approvable. The memorandum stated that any
PM2.5 precursor offset ratio submitted as part of the NSR
SIP for PM2.5 nonattainment areas would need to be
accompanied by a technical demonstration exhibiting how the ratios
are suitable for that particular nonattainment area. See Memorandum
from Gina McCarthy to Regional Air Division Directors, ``Revised
Policy to Address Reconsideration of Interpollutant Trading
Provisions for Fine Particles (PM2.5)'' (July 21, 2011)
(available at https://www.epa.gov/nsr/documents/20110721PM25InterpollutantTradingPolicy.pdf.
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In the NSR PM2.5 Rule, EPA also revised the definition
of ``regulated NSR pollutant'' for PSD and NNSR to add a paragraph
providing that ``particulate matter (PM) emissions, PM2.5
emissions and PM10 emissions'' shall include gaseous
emissions from a source or activity which condense to form particulate
matter at ambient temperatures and that on or after January 1, 2011,
such condensable particulate matter shall be accounted for in
applicability determinations and in establishing emissions limitations
for PM, PM2.5 and PM10 in permits issued. See 40
CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset
Interpretative Ruling'' (40 CFR Part 51, Appendix S). A similar
paragraph added to the NNSR rule does not include ``particulate matter
(PM) emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
On March 12, 2012, EPA proposed a rulemaking to amend the
definition of ``regulated NSR pollutant'' promulgated in the 2008 NSR
PM2.5 Rule regarding the PM condensable provision at 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset
Interpretative Ruling. See 77 FR 15656. The rulemaking proposes to
remove the inadvertent requirement in the NSR PM2.5 Rule
that the measurement of condensable ``particulate matter emissions'' be
included as part of the measurement and regulation of ``particulate
matter emissions.'' The term ``particulate matter emissions'' includes
particles that are larger than PM2.5 and PM10 and
is an indicator measured under various New Source Performance Standards
(NSPS) (40 CFR part 60).\12\ Jefferson County's February 11, 2011, SIP
revision IBR EPA's definition for regulated NSR pollutant for
condensables (at 40 CFR 52.21(b)(50)(vi)), including the term
``particulate matter emissions'', as promulgated in the NSR
PM2.5 Rule. EPA's review of Jefferson County's February 11,
2011, SIP revision with regards to the NSR PM2.5 Rule
condensable provision is provided below in Section III.
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\12\ In addition to the NSPS for PM, it is noted that states
regulated ``particulate matter emissions'' for many years in their
SIPs for PM, and the same indicator has been used as a surrogate for
determining compliance with certain standards contained in 40 CFR
part 63, regarding National Emission Standards for Hazardous Air
Pollutants.
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C. EPA's Analysis of Jefferson County's SIP Revision To Adopt the NSR
PM2.5 PSD Permitting Requirements
Jefferson County's Regulation 2.05--Prevention of Significant
Deterioration of Air Quality IBR the provisions at 40 CFR 52.21, as
amended in the NSR PM2.5 Rule for PSD. Specifically,
Jefferson County's June 1, 2009, and February 8, 2011, proposed SIP
revisions IBR the following NSR PM2.5 provisions for PSD:
(1) Requirement for NSR permits to address directly emitted
PM2.5 and precursor pollutants; (2) significant emission
rates for direct
[[Page 33369]]
PM2.5 and precursor pollutants (SO2 and
NOX); (3) PSD and NNSR requirement of states to address
condensable PM in establishing enforceable emission limits for
PM10 or PM2.5; and (4) PM2.5 emission
offsets Regarding the PM10 ``grandfathering'' provision,
Jefferson County's SIP revisions include the provision at 40 CFR
52.21(i)(1)(ix) promulgated in the NSR PM2.5 Rule. As
mentioned in Section III.B, EPA took final action to repeal the
PM10 grandfathering provision on May 18, 2011. See 76 FR
28646. Therefore, EPA is not taking action to approve this provision
into the Jefferson County portion of the Kentucky SIP. Jefferson County
will need to update its PSD provisions to reflect the repeal of the
PM10 grandfathering provision in federal regulations at 40
CFR 52.21. At this time Jefferson County's PSD regulations are
approvable because they are at least as stringent as the current
federal regulations, and are consistent with section 110 of the CAA.
Jefferson County's February 11, 2011 SIP revision also IBR, into
the Jefferson County portion of the Kentucky SIP, PSD regulations
regarding the requirement to address condensable PM in applicability
determinations and in establishing enforceable emission limits in PSD
and NNSR permits, as established in the NSR PM2.5 Rule. As
discussed above in Section III.B, under a separate action, EPA has
proposed to correct the inadvertent inclusion of ``particulate matter
emissions'' in the definition of ``regulated NSR pollutant'' as an
indicator for which condensable emissions must be addressed. See 77 FR
75656 (March 16, 2012). Further, on May 14, 2012, the State of
Kentucky, on behalf of LMAPCD, provided a letter to EPA with
clarification of Jefferson County's intent in light of EPA's March 12,
2012, proposed rulemaking. Specifically, in the letter, the State of
Kentucky requested that EPA not approve (into the Jefferson County
portion of the SIP) the term ``particulate matter emissions'' (at
Regulation 2.05) as part of the definition for ``regulated NSR
pollutant'' that condensable emissions be accounted for in
applicability determinations and in establishing emissions limitations
for PM. Therefore given the state's and LMAPCD's request and EPA's
intention to amend the definition of ``regulated NSR pollutant,'' EPA
is not proposing action to approve the terminology ``particulate matter
emissions'' into the Jefferson County portion of the Kentucky SIP (at
Regulation 2.05) for the condensable provision at the definition of
``regulated NSR pollutant.'' EPA is, however, proposing to approve into
the SIP at Regulation 2.05 the remaining condensable requirement at 40
CFR 51.166(b)(49)(vi) that condensable emissions be accounted for in
applicability determinations and in establishing emissions limitations
for PM2.5 and PM10. EPA has preliminarily
determined that Jefferson County's June 1, 2009, and February 8, 2011,
SIP revisions are consistent with the NSR PM2.5 Rule for PSD
and with section 110 of the CAA. See NSR PM2.5 Rule, 75 FR
31514.
IV. What is EPA's proposed action for the Phase II Rule?
A. Background
Today's proposed action on Jefferson County's portion of the
Kentucky SIP also relates to EPA's November 29, 2005, Phase II Rule.
See 70 FR 71612. In the Phase II Rule, EPA made a number of changes to
the NSR rules including: recognizing NOX as an ozone
precursor for PSD purposes; changing the NNSR rules that establish
major stationary thresholds (marginal, moderate, serious, severe, and
extreme nonattainment area classifications) and significant emission
rates for the 8-hour ozone, PM10 and carbon monoxide NAAQS;
revising the criteria for crediting emission reductions credits from
operation shutdowns and curtailments as offsets, and changing offset
ratios for marginal, moderate, serious, severe, and extreme ozone
nonattainment areas. The following provides the background for the
Phase II Rule requirements for NOX as an ozone precursor.
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. In
addition, as part of the framework to implement the 1997 8-hour ozone
NAAQS, EPA promulgated an implementation rule in two phases (Phase I
and II). The Phase I Rule (effective on June 15, 2004) provided the
implementation requirements for designating areas under subpart 1 and
subpart 2 of the CAA. See 69 FR 23951 (April 30, 2004).
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, such as
reasonably available control technology, reasonably available control
measures, reasonable further progress, modeling and attainment
demonstrations, NSR, and the impact to reformulated gas for the 1997 8-
hour ozone NAAQS transition. The Phase II Rule NSR requirements
include, among other changes, a provision stating that NOX
is an ozone precursor. See 70 FR at 71679. 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 attainment areas.
The Phase II Rule made changes to federal regulations 40 CFR
51.165, 51.166 and 52.21 (which governs the NNSR and PSD permitting
programs respectively). Pursuant to these requirements, states were
required to submit SIP revisions adopting the federal requirements of
the Phase II Rule (at 40 CFR 51.165, 51.166 and 52.21) into their SIP
no later than June 15, 2007. Jefferson County's June 1, 2009, and
February 8, 2011, SIP revisions both address the federal PSD-only
provisions requirements promulgated in the Phase II rule recognizing
NOX as an ozone precursor (at 40 CFR 52.21).\13\
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\13\ Jefferson County's SIP submittals proposed for approval in
this rulemaking do not include NNSR provisions for the Phase II
Rule. These permitting requirements (at Regulation 2.04) are still
under development by LMAPCD.
---------------------------------------------------------------------------
B. EPA's Analysis of Jefferson County's SIP Revisions To Adopt the
Phase II Rule
Jefferson County's June 1, 2009, SIP revision updated LMAPCD's PSD
program to include NOX as an ozone precursor for PSD
permitting, consistent with changes to the federal regulations set
forth in the Phase II Rule at 40 CFR 52.21. Subsequently, on February
8, 2011, KDAQ, submitted a SIP revision which included the June 1,
2009, changes in addition to other federal PSD permitting updates to
the Jefferson County portion of the Kentucky SIP. Jefferson County's
SIP revisions IBR the federal PSD regulations (at 40 CFR 52.21) to
include the NOX as a precursor PSD-only permitting
provisions
[[Page 33370]]
promulgated in the Phase II Rule into the Jefferson County portion of
the Kentucky SIP at Regulation 2.05--Prevention of Significant
Deterioration of Air Quality (version 10) as of July 1, 2010. EPA has
preliminarily determined that Jefferson County's SIP revisions are
consistent with the PSD Phase II Rule permitting requirements and
section 110 of the CAA.
V. What are EPA's Proposed Actions for NSR Reform and Reasonable
Possibility?
A. Background
On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 CFR parts 51 and 52 regarding the CAA's PSD and NNSR
programs. On November 7, 2003 (68 FR 63021), EPA published a notice of
final action on the reconsideration of the December 31, 2002, final
rule changes. The December 31, 2002, and the November 7, 2003, final
actions are collectively referred to as the ``2002 NSR Reform Rules.''
The 2002 NSR Reform Rules are part of EPA's implementation of parts C
and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I of
the CAA, 42 U.S.C. 7470-7492, consists of the PSD program and applies
to attainment and unclassifiable areas. Part D of title I of the CAA,
42 U.S.C. 7501-7515, includes the NNSR program and applies in
nonattainment areas. Collectively, the PSD and NNSR programs are
referred to as the ``New Source Review'' or NSR programs.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 NSR Reform Rules: (1) Provide a new
method for determining baseline actual emissions; (2) adopt an actual-
to-projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with plant-wide applicability limits (PALs) to avoid having a
significant emissions increase that triggers the requirements of the
major NSR program; (4) provide a new applicability provision for
emissions units that are designated clean units; and (5) exclude
pollution control projects (PCPs) from the definition of ``physical
change or change in the method of operation.'' On November 7, 2003 (68
FR 63021), EPA published a notice of final action on its
reconsideration of the 2002 NSR Reform Rules, which added a definition
for ``replacement unit'' and clarified an issue regarding PALs. For
additional information on the 2002 NSR Reform Rules, see 67 FR 80186
(December 31, 2002) and https://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), industry, state, and environmental petitioners challenged
numerous aspects of the 2002 NSR Reform Rules, along with portions of
EPA's 1980 NSR Rules, 45 FR 52676 (August 7, 1980). On June 24, 2005,
the United States Court of Appeals for the District of Columbia (D.C.
Circuit Court) issued a decision on the challenges to the 2002 NSR
Reform Rules. New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005). In
summary, the D.C. Circuit Court vacated portions of the rules
pertaining to clean units and PCPs, remanded a portion of the rules
regarding recordkeeping and the term ``reasonable possibility'' found
in 40 CFR 52.21(r)(6) and 40 CFR 51.165(a)(6) and 51.166(r)(6), and
either upheld or did not comment on the other provisions included as
part of the 2002 NSR Reform Rules. On June 13, 2007 (72 FR 32526), EPA
took final action to revise the 2002 NSR Reform Rules to remove from
federal law all provisions pertaining to clean units and the PCPs
exemption that were vacated by the D.C. Circuit Court.
The 2002 NSR Reform Rules required that state agencies adopt and
submit revisions to their SIP permitting programs implementing the
minimum program elements of the 2002 NSR Reform Rules no later than
January 2, 2006. State agencies may meet the requirements of 40 CFR 51
and the 2002 NSR Reform Rules with different but equivalent
regulations.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping, the U.S. Court of Appeals remanded to EPA
either to provide an acceptable explanation for its ``reasonable
possibility'' standard or devise an appropriate alternative. To satisfy
the courts, on December 21, 2007, EPA took final action to clarify that
a ``reasonable possibility'' applies where source emissions equal or
exceed 50 percent of the CAA NSR significance levels for any pollutant.
See ``Prevention of Significant Deterioration and Nonattainment New
Source Review: Reasonable Possibility in Recordkeeping:'' Final Rule,
72 FR 72607 (December 21, 2007) (the Reasonable Possibility Rule). The
``reasonable possibility'' provision identifies for sources and
reviewing authorities the circumstances under which a major stationary
source undergoing a modification that does not trigger major NSR must
keep records. EPA's December 21, 2007, final rule on the recordkeeping
and reporting provisions also explains state obligations with regard to
the reasonable possibility related rule changes.\14\ See 72 FR at
72613-72614. The final rule gave states and local permitting
authorities three years from publication to submit revisions to
incorporate the reasonable possibility provisions or to submit notice
to EPA that their regulations fulfill these requirements.
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\14\ On January 14, 2009, EPA denied a petition by the State of
New Jersey (submitted February 8, 2008) for reconsideration and stay
of the December 21, 2007, final rule for ``reasonable possibility.''
However, on March 11, 2009, New Jersey reiterated its request for
reconsideration, which EPA granted on April 24, 2009. EPA has not
taken action on the reconsideration therefore, the current
recordkeeping rules established in the December 21, 2007, final rule
are approvable.
---------------------------------------------------------------------------
On June 1, 2009, and February 8, 2011, KDAQ, on behalf of LMAPCD,
submitted to EPA revisions to the Jefferson County portion of
Kentucky's SIP to IBR the federal PSD permitting regulations
promulgated in the 2002 NSR Reform Rule and the Reasonable Possibility
Rule. EPA is now proposing to approve these SIP revisions consistent
with section 110 of the CAA.
B. EPA's Analysis of Jefferson County's SIP Revision To Adopt the NSR
Reform and Reasonable Possibility
As mentioned in Section I, LMAPCD's PSD Program at Regulation
2.05--Prevention of Significant Deterioration for Air Quality
establishes the preconstruction review program as required under part C
of title I of the CAA. The changes to LMAPCD's PSD rules, which EPA is
now proposing to approve into the Jefferson County portion of the
Kentucky SIP, were established to update the existing PSD Program to
meet the requirements of the 2002 NSR Reform Rules. Jefferson County's
SIP revisions IBR the 2002 NSR Reform PSD changes regarding baseline
actual emissions, actual-to-projected-actual applicability tests, and
PAL provisions. Jefferson County's June 1, 2009, and February 8, 2011,
SIP revisions both address the federal PSD requirements promulgated in
the 2002 NSR Reform rules. The proposed revisions explicitly exclude
the PCPs and clean unit portions of the 2002 NSR Reform Rules that were
vacated as part of the DC Circuit Court's June 2005 decision.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping and EPA's December 21, 2007, clarifications of
the term ``reasonable possibility'' (72 FR 72607), Jefferson County's
SIP revisions IBR the federal revised ``reasonable possibility''
provisions at 40 CFR 52.21(r)(6). Thus, LMAPCD's recordkeeping and
reporting provisions are the same as the federal
[[Page 33371]]
requirements promulgated in EPA's December 21, 2007, final action.
In addition to incorporating the federal PSD regulations, Jefferson
County's February 8, 2011, SIP revision includes a technical support
document (TSD), which assesses the impact of adopting the 2002 NSR
Reform provisions into Jefferson County's PSD permitting program and
the air quality impacts. As mentioned above, LMAPCD has a SIP-approved
PSD program. However, due to the limited number of sources in Jefferson
County, the permitting program does not assess many major PSD permits.
In fact, in nearly ten years, LMAPCD has only analyzed two projects
under PSD. Most sources in Jefferson County are permitted through
LMAPCD's minor source program, which allows sources to take emission
limits to avoid PSD permitting. Additionally, regarding criteria
pollutants, the TSD explains that sources typically subject to PSD
permitting (i.e. point sources) have not been the primary driver for
past or current nonattainment NAAQS designations in Jefferson County.
See the TSD in the Docket ID No. EPA-R04-OAR-2011-0227.
LMAPCD's TSD concluded that adoption of the 2002 NSR Reform
improvements would not impede the LMAPCD's ability to comply with the
NAAQS or any reasonable progress towards continued maintenance. After
evaluating Jefferson County's SIP revision, and the TSD provided with
the February 8, 2011, SIP revision, EPA has determined that the
proposed SIP revisions to adopt NSR Reform and reasonable possibility
provisions are consistent with the federal program requirements for the
preparation, adoption and submittal of implementation plans for the PSD
of air quality, set forth at 40 CFR 52.21, and the 2002 NSR Reform
Rule.
VI. What is EPA's proposed action for the automatic rescission clause?
A. Jefferson County's Proposed Automatic Rescission Clause
Jefferson County's February 8, 2011, proposed SIP revision adds a
new section to Regulation 2.05, Section 2--Effect of Stay, Vacatur, or
Withdrawal, also known as an automatic rescission clause. This clause
provides that in the event that EPA or a federal court stays, vacates,
or withdraws any section or subsection of 40 CFR 52.21, that section or
subsection shall automatically be deemed stayed, vacated or withdrawn
from Jefferson County's SIP-approved PSD program at Regulation 2.05.
The period of delay resulting from a stay would begin and end for
purposes of Jefferson County's SIP on the date specified by EPA in a
Federal Register notice announcing the stay. Likewise, any provision
that is vacated or withdrawn shall be null and void for purposes of
Jefferson County's SIP as of the date specified in the notice of
vacatur or withdrawal published by EPA in a Federal Register notice.
B. EPA's analysis of the approvability of Jefferson County's automatic
rescission clause
EPA has preliminarily concluded that Jefferson County's automatic
rescission clause is approvable. In assessing the approvability of this
provision, EPA considered two key factors: (1) Whether the public will
be given reasonable notice of any change to the SIP that occurs as a
result of the automatic rescission clause, and (2) whether any future
change to the SIP that occurs as a result of the automatic rescission
clause would be consistent with EPA's interpretation of the effect of
the triggering EPA or federal court action (e.g., the extent of an
administrative or judicial stay). These criteria are derived from the
SIP revision procedures set forth in the CAA and federal regulations.
Regarding public notice, CAA section 110(l) provides that any
revision to a SIP submitted by a state to EPA for approval ``shall be
adopted by such State after reasonable notice and public hearing.'' In
accordance with CAA section 110(l), the LMAPCD followed applicable
notice-and-comment procedures prior to adopting the automatic
rescission clause. Thus, the public is on notice that the Jefferson
County portion of the Kentucky SIP will automatically update to reflect
any EPA or federal action that stays, withdraws, or vacates any portion
of 40 CFR 52.21. In addition, the automatic rescission clause provides
that no change to the SIP will occur until EPA publishes a Federal
Register notice announcing that a portion of 40 CFR 52.21 has been
stayed, vacated, or withdrawn. Thus, the timing and extent of any
future SIP change resulting from the automatic rescission clause will
be clear to both the regulated community and the general public.
EPA's consideration of whether any SIP change resulting from the
proposed automatic rescission clause would be consistent with EPA's
interpretation of the effect of the triggering action on federal
regulations is based on 40 CFR 51.105. Under 40 CFR 51.105,
``[r]evisions of a plan, or any portion thereof, will not be considered
part of an applicable plan until such revisions have been approved by
the Administrator in accordance with this part.'' See 40 CFR 51.105.
While EPA is approving the automatic updating of the Jefferson County
portion of the Kentucky SIP to reflect the stay, withdrawal or vacatur
of any section or subsection of 40 CFR 52.21, there could be varying
interpretations of the timing and extent of changes to 40 CFR 52.21
resulting from a given EPA or federal court action. By tying the
automatic updating of the SIP to EPA's publication of a Federal
Register notice announcing the change to 40 CFR 52.21, the proposed
automatic rescission clause ensures that any change to the SIP will be
consistent with EPA's interpretation of the triggering action.
VII. Proposed Actions
EPA is proposing to approve Jefferson County's June 1, 2009, and
February 8, 2011, SIP revisions which adopt federal requirements for
NSR PSD permitting. Jefferson County's SIP revisions consist of changes
to the LMAPCD Air Quality Regulation 2.05--Prevention of Significant
Deterioration of Air Quality and address several NSR PSD permitting
requirements promulgated at 40 CFR 52.21. Specifically, Jefferson
County's June 1, 2009, SIP revision adopts federal regulations relating
to PSD requirements for the NSR PM2.5 Rule, the Phase II
Rule, the 2002 NSR Reform Rule, and the NSR Reasonable Possibility Rule
into the Jefferson County portion of the Kentucky SIP. Jefferson
County's February 8, 2011, proposed SIP revision includes all of the
aforementioned updates to LMAPCD's PSD regulations but also provides
Jefferson County with the authority to regulate GHGs under its PSD
program, establishes appropriate emissions thresholds for determining
PSD applicability with respect to new and modified GHG-emitting sources
(in accordance with EPA's Tailoring Rule), and incorporates an
automatic rescission clause for 40 CFR 52.21 regulations. EPA has
preliminarily determined that these SIP revisions are approvable
because they are in accordance with the CAA and EPA regulations
regarding PSD permitting. In addition, EPA is proposing to rescind the
FIP promulgated on January 14, 2011 at 40 CFR 52.37(b)(7) once the
proposed GHG PSD permitting revision has been approved into the
Jefferson County portion of the Kentucky SIP.
VIII. 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.
[[Page 33372]]
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, these proposed actions merely approve
state law as meeting federal requirements and do not impose additional
requirements beyond those imposed by state law. For that reason, these
proposed actions:
Are 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);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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
Do 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 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, Greenhouse Gas,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 24, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-13694 Filed 6-5-12; 8:45 am]
BILLING CODE 6560-50-P
