Approval and Promulgation of Implementation Plans; Kentucky; 110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient Air Quality Standards, 14681-14689 [2013-05352]
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Dated: January 25, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2013–05249 Filed 3–6–13; 8:45 am]
BILLING CODE 4312–EJ–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0700; FRL–9788–6]
Approval and Promulgation of
Implementation Plans; Kentucky;
110(a)(1) and (2) Infrastructure
Requirements for the 2008 8-Hour
Ozone National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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AGENCY:
SUMMARY: EPA is taking final action to
approve in part, conditionally approve
in part, and disapprove in part, the July
17, 2012, State Implementation Plan
(SIP) submission provided by the
Commonwealth of Kentucky, through
the Division of Air Quality (DAQ) of the
Kentucky Energy and Environment
Cabinet. Kentucky DAQ submitted the
July 17, 2012, SIP submission as a
replacement to its original September 8,
2009, SIP submission. Specifically, this
final rulemaking pertains to the Clean
Air Act (CAA or Act) requirements for
the 2008 8-hour ozone national ambient
air quality standards (NAAQS)
infrastructure SIP. The CAA requires
that each state adopt and submit a SIP
for the implementation, maintenance,
and enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. Kentucky DAQ
made a SIP submission demonstrating
that the Kentucky SIP contains
provisions that ensure the 2008 8-hour
ozone NAAQS are implemented,
enforced, and maintained in the
Commonwealth (hereafter referred to as
‘‘infrastructure submission’’). EPA is
now taking final action on three related
actions on Kentucky DAQ’s
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infrastructure SIP submission. First,
EPA is taking action to approve
Kentucky DAQ’s infrastructure
submission provided to EPA on July 17,
2012, as meeting certain required
infrastructure elements for the 2008 8hour ozone NAAQS. Second, with
respect to the infrastructure elements
related to specific prevention of
significant deterioration (PSD)
requirements, EPA is taking final action
to approve, in part and conditionally
approve in part, the infrastructure SIP
submission based on a December 19,
2012, commitment from Kentucky DAQ
to submit specific enforceable measures
for approval into the SIP to address
specific PSD program deficiencies.
Third, EPA is taking final action to
disapprove Kentucky DAQ’s
infrastructure SIP submission with
respect to certain interstate transport
requirements for the 2008 8-hour ozone
NAAQS because the submission does
not address the statutory provisions
with respect to the relevant NAAQS and
thus does not satisfy the criteria for
approval. The CAA requires EPA to act
on this portion of the SIP submission
even though under a recent court
decision, Kentucky DAQ was not yet
required to submit a SIP submission to
address these interstate transport
requirements. Moreover, under that
same court decision, this disapproval
does not trigger an obligation for EPA to
promulgate a Federal Implementation
Plan (FIP) to address these interstate
transport requirements.
DATES: This rule will be effective April
8, 2013.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2012–0700. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
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
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14681
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m. excluding federal holidays.
FOR FURTHER INFORMATION CONTACT:
Nacosta C. Ward, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9140.
Ms. Ward can be reached via electronic
mail at ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Response to Comments
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or
revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address
basic structural SIP requirements,
including emissions inventories,
monitoring, and modeling to assure
attainment and maintenance for that
new NAAQS.
Section 110(a) of the CAA generally
requires states to make a SIP submission
to meet applicable requirements in
order to provide for the implementation,
maintenance, and enforcement of a new
or revised NAAQS within three years
following the promulgation of such
NAAQS, or within such shorter period
as EPA may prescribe. These SIP
submissions are commonly referred to
as ‘‘infrastructure’’ SIP submissions.
Section 110(a) imposes the obligation
upon states to make an infrastructure
SIP submission to EPA for a new or
revised NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the infrastructure SIP for a
new or revised NAAQS affect the
content of the submission. The contents
of such infrastructure SIP submissions
may also vary depending upon what
provisions the state’s existing SIP
already contains. In the case of the 2008
8-hour ozone NAAQS, states typically
have met the basic program elements
required in section 110(a)(2) through
earlier SIP submissions in connection
with previous ozone NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
requirements related to a newly
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established or revised NAAQS. As
mentioned above, these requirements
include basic structural SIP
requirements such as modeling,
monitoring, and emissions inventories
that are designed to assure attainment
and maintenance of the NAAQS. The
applicable infrastructure SIP
requirements that are the subject of this
rulemaking are listed below.1
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.2
• 110(a)(2)(D)(i): Interstate transport.3
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source
monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated
nonattainment and meet the applicable
requirements of part D.4
• 110(a)(2)(J): Consultation with
government officials; public
notification; and PSD and visibility
protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
1 Two elements identified in section 110(a)(2) are
not governed by the three year submission deadline
of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
pursuant to other provisions of the CAA for
submission of SIP revisions specifically applicable
for attainment planning purposes. These
requirements are: (1) Submissions required by
section 110(a)(2)(C) to the extent that subsection
refers to a permit program as required in part D
Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the
nonattainment planning requirements of part D,
Title I of the CAA. Today’s final rulemaking does
not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning
requirements of 110(a)(2)(C).
2 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
3 Section 110(a)(2)(D)(i) includes four
requirements referred to as prongs 1 through 4.
Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at
section 110(a)(2)(D)(i)(II). At this time, pursuant to
a recent decision of the U.S. Court of Appeals for
the DC Circuit, the SIP submission from Kentucky
DAQ to meet section 110(a)(2)(D)(i)(I) is not a
required SIP submission. The portions of the SIP
submission relating to 110(a)(2)(D)(i)(II) and
110(a)(2)(D)(ii), in contrast, are required. Although
prongs 1 and 2 are not required, EPA is acting today
to disapprove Kentucky’s submittal related to these
prongs for the reasons described in the proposed
rule associated with this rulemaking. See 78 FR
3867. Further information regarding EPA’s
disapproval of prongs 1 and 2 is also provided
below in section II.
4 This requirement as mentioned above is not
relevant to today’s final rulemaking.
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On January 17, 2013, EPA proposed to
approve Kentucky’s July 17, 2012,
infrastructure SIP submission and
proposed to conditionally approve in
part sections 110(a)(2)(C), prong 3 of
(D)(i), and (J), and disapprove in part
section 110(a)(2)(D)(i) for the 2008 8hour ozone NAAQS. See 78 FR 3867.
EPA proposed conditional approval in
part for sections 110(a)(2)(C), prong 3 of
(D)(i),5 and (J) because, while the
Commonwealth’s SIP does not currently
contain provisions to address the
structural PSD requirements of the PSD
and Nonattainment New Source Review
(NNSR) requirements related to the
implementation of the NSR PM2.5 Rule
and the PM2.5 PSD Increment-SILs-SMC
Rule (only as it relates to PM2.5
Increments), Kentucky DAQ committed
in a letter dated December 19, 2012, to
submit, within one year, specific
enforceable measures to EPA for
incorporation into the SIP to address
these requirements. See 78 FR 3867.
This commitment letter meets the
requirements of section 110(k)(4) of the
CAA. Kentucky DAQ’s December 19,
2012, letter can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2012–0700.
With respect to section
110(a)(2)(D)(i)(I),6 for the 2008 8-hour
ozone NAAQS, EPA published a
proposal to disapprove Kentucky DAQ’s
July 17, 2012, SIP revision. EPA
proposed disapproval of these elements
because the infrastructure SIP
submission asserted that the
requirements of 110(a)(2)(D)(i)(I) with
respect to the 2008 8-hour ozone
NAAQS were satisfied by the
Commonwealth’s approved regulations
to meet the Clean Air Interstate Rule
(CAIR) requirements. CAIR, however,
was promulgated before the 2008 8-hour
ozone NAAQS were promulgated, and
CAIR did not, in any way, address
interstate transport requirements related
to the 2008 8-hour ozone NAAQS. See
78 FR 3867.
Finally, EPA notes that this final
action on Kentucky’s infrastructure SIP
submission for the 2008 8-hour ozone
NAAQS is required not only by section
5 Section 110(a)(2)(D)(i) includes four
requirements referred to as prongs 1 through 4.
Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at
section 110(a)(2)(D)(i)(II). Today’s conditional
approval only relates to the structural PSD
requirements of section 110(a)(2)(D)(i)(II), also
known as prong 3 as noted above in footnote 3.
6 Section 110(a)(2)(D)(i)(I) includes two distinct
requirements referred to as prongs 1 and 2. Prong
1 requires states to prohibit emissions that
significantly contribute to nonattainment of the
NAAQS in another state and prong 2 request states
to prohibit emissions that interfere with
maintenance of the NAAQS in another state.
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110(k), but also by order issued by the
U.S. District Court for the Northern
District of California in WildEarth
Guardians v. Jackson, Case No. 11–CV–
5651 YGR. In an October 17, 2012, order
granting partial summary judgment in
the case, as modified in a December 7,
2012, order granting in part EPA’s
motion for an amended order, that court
directed EPA to take final action upon
the infrastructure SIP at issue in this
action by March 4, 2013. With respect
to Kentucky, the court specifically
ordered EPA to act upon the
infrastructure SIP submission made by
the Commonwealth on September 8,
2009, as revised on July 17, 2012. As
explained in more detail in response to
relevant comments, EPA is addressing
the requirements of section
110(a)(2)(D)(i)(I) consistent with the
opinion of the DC Circuit Court’s
opinion in EPA Homer City Generation
v. EPA, 696 F.3d 7 (DC Cir. 2012).
II. Response to Comments
EPA received five sets of comments
on the January 17, 2013, proposed
rulemaking to approve in part,
conditionally approve in part, and
disapprove in part, Kentucky DAQ’s
infrastructure SIP submission intended
to meet the CAA requirements for the
2008 8-hour ozone NAAQS. A summary
of the comments and EPA’s responses
are provided below.
Comment 1: One commenter contends
that EPA cannot approve the section
110(a)(2)(A) portion of Kentucky DAQ’s
infrastructure SIP submission because
certain counties in the Commonwealth
have air quality monitors with data that
suggest such areas are not attaining the
2008 8-hour ozone NAAQS.
Specifically, the Commenter cites air
monitoring reports for Jefferson and
Oldham counties indicating violations
of the NAAQS based on 2009–2011
design values. The Commenter further
contends that, based on available data
for 2010–2012, 10 Kentucky counties
will violate the 2008 8-hour ozone
NAAQS based on 2010–2012 design
values. According to the Commenter, if
a designated attainment area violates the
NAAQS, then this means that the state
must necessarily lack adequate
emissions limits in its infrastructure SIP
submission to attain and maintain that
NAAQS.
Response 1: EPA disagrees with the
Commenter’s contention that Kentucky
DAQ’s 2008 8-hour ozone infrastructure
SIP submission is not approvable with
respect to section 110(a)(2)(A) because
of the monitor design values noted by
the Commenter. While EPA shares the
Commenter’s concern regarding
counties monitoring exceedances of the
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2008 8-hour ozone NAAQS based upon
2009–2011 design values, such concerns
are outside the scope of what is germane
to an evaluation of section 110(a)(2)(A)
of an infrastructure SIP.7
Pursuant to section 110(a)(2)(A), an
infrastructure SIP submission must
include enforceable emission
limitations and other control measures,
means, or techniques (including
economic incentives such as fees,
marketable permits, and auctions of
emissions rights), as well as schedules
and timetables for compliance, as may
be necessary or appropriate to meet the
applicable requirements of the Act. The
Commenter, however, seems to believe
that in the context of an infrastructure
SIP submission, section 110(a)(2)(A)
requires that a state must monitor
attainment of the NAAQS at all
monitors throughout the state in order
to demonstrate that the SIP contains the
requisite emissions limitations and
other control measures, means or
techniques prescribed by the Act. EPA
does not believe that this is a reasonable
interpretation of the provision with
respect to infrastructure SIP
submissions. Rather, EPA believes that
the proper inquiry at this juncture is
whether the state has met the basic
structural SIP requirements appropriate
at the point in time EPA is acting upon
it. The Act provides states and EPA with
other tools to address concerns that
arise with respect to violations of the
NAAQS in a designated attainment area,
such as the authority to redesignate
areas pursuant to section 107(d)(3), the
authority to issue a ‘‘SIP Call’’ pursuant
to section 110(k)(5), or the general
authority to approve SIP revisions that
can address such violations of the
NAAQS through other appropriate
measures. As stated in EPA’s proposed
approval for this rule, to meet section
110(a)(2)(A), Kentucky submitted a list
of existing emission reduction measures
in the SIP that control emissions of
volatile organic compounds and
nitrogen oxides (NOx) in order to
address ambient ozone levels. EPA
believes that this is sufficient for
purposes of infrastructure SIP
submission.
Comment 2: The Commenter contends
that EPA must disapprove Kentucky’s
infrastructure SIP submission as it
7 EPA also notes that the Commenter relies upon
preliminary data to suggest that certain areas are
violating the 2008 8-hour ozone NAAQS based
upon 2010–2012 data. This data has not yet been
certified, and as such, is not yet finalized.
Regardless, for the reasons discussed in Response
1, EPA does not believe that such data, were it
certified and final, would provide an appropriate
basis upon which to disapprove Kentucky’s
infrastructure SIP as it relates to section
110(a)(2)(A) requirements.
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relates to section 110(a)(2)(A) because
the submittal fails to contain
enforceable ozone precursor limits and
schedules/timetables for compliance to
ensure attainment and maintenance of
the NAAQS. Specifically, the
Commenter contends that Kentucky has
failed to identify how it will address the
violations for those counties monitoring
violations of the NAAQS.
Response 2: EPA disagrees with the
Commenter’s contention that Kentucky
should be required to submit the
emissions limitations and other control
measures associated with a
nonattainment plan in order to satisfy
section 110(a)(2)(A) requirements. This
would be beyond the scope of what is
required per section 110(a)(2)(A) in the
context of an infrastructure SIP
submission. Nonattainment area plans
are due on a different schedule from the
section 110 infrastructure elements, and
such plans, if required, are reviewed
and acted upon through a separate
process. Here, the most of the counties
cited by the Commenter are not
designated nonattainment,8 and as such,
the nonattainment plan requirements
referenced by the Commenter are not
currently due. As noted above, EPA
shares the Commenter’s concern
regarding areas that are monitoring
exceedances of the 2008 8-hour ozone
NAAQS and will work appropriately
with state and local agencies to address
such exceedances. Further, in approving
Kentucky’s infrastructure SIP, EPA is
affirming that Kentucky has sufficient
authority to take the types of actions
required by the CAA in order to bring
such areas back into attainment.
Comment 3: A number of Commenters
disagreed with EPA’s position that
disapproval of the Kentucky’s
infrastructure SIP, as it relates to section
110(a)(2)(D)(i)(I) requirements, would
not trigger a mandatory duty for EPA to
promulgate a FIP to address these
requirements. Specifically, the
Commenters contend that the plain
language of the CAA requires EPA to
issue a FIP within two years of a
disapproval action. In addition, the
Commenters contend that the decision
in EME Homer City Generation v. EPA,
696 F.3d 7 (DC Cir. 2012) (EME Homer
City), was incorrectly decided and is
inconsistent with previous decisions by
the DC Circuit Court of Appeals. The
Commenters suggest that EPA should
not voluntarily follow the incorrectly
decided EME Homer City opinion,
particularly in the context of an
8 As
noted below, a portion of Campbell County,
Kentucky is designated nonattainment for the 2008
8-hour ozone NAAQS in association with the
Cincinnati-Hamilton nonattainment area.
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infrastructure action that only impacts
sources in Kentucky, a state under the
jurisdiction of the Sixth Circuit Court of
Appeals rather than the DC Circuit
Court of Appeals.
Response 3: EPA has historically
adopted the interpretation suggested by
the Commenters that disapproval of
section 110(a)(2)(D)(i)(I) would trigger
an obligation for the Agency to
promulgate a FIP within two years if the
state did not correct the SIP deficiency
within that time. EPA continues to agree
that the plain language of the statute
establishes these obligations, and for
those reasons, we asked the U.S. Court
of Appeals for the DC Circuit to grant
rehearing en banc of the decision in
EME Homer City. That petition,
however, was denied on January 24,
2012, and the mandate was issued to
EPA on February 4, 2012. The deadline
for any party to file a petition for
certiorari with the Supreme Court has
not passed 9 and the United States has
not yet decided whether to pursue
further appeals. In the meantime, EPA
intends to act in accordance with the
EME Homer City opinion in which the
court concluded that states have no
obligation to make a SIP submission to
address section 110(a)(2)(D)(i)(I) for a
new or revised NAAQS until EPA has
first defined a state’s obligations
pursuant to that section. As described in
the proposed rulemaking for today’s
action, Kentucky did make such a
submittal, and consistent with section
110(k) of the CAA, EPA is required to
act upon that submittal. Because CAIR
does not, in any way, address transport
with respect to the 2008 8-hour ozone
NAAQS, it cannot be relied upon to
satisfy the requirements of
110(a)(2)(D)(i)(I) for that NAAQS. For
this reason, the Agency proposed to
disapprove this portion of the
infrastructure SIP submission. However,
because this portion of the
infrastructure SIP submission is not
currently required for the 2008 8-hour
ozone NAAQS per the EME Homer City
opinion, EPA’s disapproval action today
does not presently trigger a FIP
obligation.
EPA also disagrees with the
Commenters’ suggestion that the Agency
need not follow the DC Circuit’s
decision in EME Homer City in the
context of an infrastructure action for
Kentucky. The EPA rule reviewed by
the court in EME Homer City—‘‘Federal
Implementation Plans: Interstate
Transport of Fine Particulate Matter and
9 Pursuant to Rule 13 of the Supreme Court Rules,
a petition for certiorari must be filed within 90 days
of the date of denial of rehearing. The court may
extend this deadline for good cause by up to 60
days.
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Ozone and Correction of SIP
Approvals,’’ 76 FR 48207 (August 8,
2011) also known as the Cross State Air
Pollution Rule (CSAPR)—was
designated by EPA as a ‘‘nationally
applicable’’ rule within the meaning of
section 307(b)(1) of the CAA. See id. at
48352. Accordingly, all petitions for
review of the CSAPR had to be filed in
the U.S. Court Appeals for the DC
Circuit and could not be filed in any
other federal court. 42 U.S.C. 7607(b)(1).
Accordingly, EPA believes the DC
Circuit’s decision in EME Homer City
vacating this rule is also nationally
applicable. As such, EPA does not
intend to take any actions, even if they
are only reviewable in another federal
Circuit Court of Appeals, that are
inconsistent with the decision of the DC
Circuit.
Comment 4: A number of states
commented that Kentucky contributes
significantly to ozone nonattainment in
other states. Specifically, the Maryland
Department of the Environment
commented that it has performed
modeling to demonstrate that Maryland
will continue to violate the 2008 8-hour
ozone NAAQS even if all anthropogenic
emissions in Maryland are eliminated. It
contends that corrective actions in states
like Kentucky that contribute to
Maryland’s nonattainment are necessary
in order for the state to meet the
NAAQS. The Delaware Department of
Natural Resources and Environmental
Control commented that modeling from
the CSAPR demonstrated that Kentucky
emissions significantly contribute to
Delaware’s ozone pollution by as much
as 4.3 percent of the 2008 8-hour ozone
NAAQS in 2012 and that Delaware has
done its fair share to address ozone, and
it expects EPA to ensure that upwind
contributing states fully address their
contribution to downwind
nonattainment. Finally, the Connecticut
Department of Energy & Environmental
Protection commented that CSAPR
modeling demonstrates that Kentucky
emissions significantly contribute to
Connecticut’s ozone pollution by as
much as 3.4 percent of the 2008 8-hour
ozone NAAQS in 2012, and that
Connecticut has done its fair share to
address ozone emissions in the state,
and it now expects EPA to ensure that
upwind contributing states fully address
their contribution to downwind
nonattainment.
Response 4: EPA acknowledges the
Commenters’ concern that interstate
transport of ozone and ozone precursors
from upwind states to downwind states
may have adverse consequences on the
ability of downwind areas to attain the
NAAQS in a timely fashion. It is for this
reason that EPA attempted, through
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CSAPR, to address emissions found to
significantly contribute to
nonattainment of or interfere with
maintenance of the 1997 8-hour ozone
NAAQS. The modeling done for CSAPR,
however, did not address the 2008 8hour ozone NAAQS and EPA did not
draw any conclusions with respect to
the 2008 8-hour ozone NAAQS which
did not exist when CAIR was
promulgated. Moreover, the DC Circuit,
in its decision vacating the CSAPR, held
that states are not required to submit
SIPs addressing the requirements of
section 110(a)(2)(D)(i)(I) until EPA has
quantified their obligation under that
provision. See EME Homer City, 696
F.3d at 37. The EME Homer City opinion
was issued in August of 2012, and on
January 24, 2013, the court denied all
petitions for rehearing. As noted in the
responses above, the deadline for asking
the Supreme Court to review the DC
Circuit’s decision has not passed and
the United States has not yet decided
whether to seek further appeal. In the
meantime, and unless the EME Homer
City Generation decision is reversed or
otherwise modified, EPA intends to act
in accordance with the DC Circuit’s
opinion. Under this opinion, EPA has
no authority to promulgate a FIP for
section 110(a)(2)(D)(i)(I) until such time
as the Agency quantifies States’
obligations under this section.
Comment 5: One Commenter
contended even if EPA chose to follow
the EME Homer City Generation
decision, EPA should acknowledge that
the disapproval starts a FIP clock and
then move expeditiously to provide
Kentucky with the information the EME
Homer City court said EPA must
provide. The Commenter contended that
EPA should be able to quantify
Kentucky’s obligations under section
110(a)(2)(D)(i)(I) within six months,
thereby providing the Commonwealth
with 18 months to submit a new SIP to
address this requirements.
Response 5: EPA disagrees. As
discussed above in the response to
comment 3, unless the D.C. Circuit’s
decision in EME Homer City is reversed
or otherwise modified, disapproval
Kentucky DAQ’s 2008 infrastructure SIP
as it relates to section 110(a)(2)(i)(I) does
not give EPA authority, much less
obligate it, to promulgate a FIP for
Kentucky. EPA intends to move forward
expeditiously to address the interstate
transport requirements of the CAA in
accordance with all applicable court
decisions.
Comment 6: A number of Commenters
contend that EPA’s disapproval section
110(a)(2)(D)(i)(I) triggers a section
110(k)(5) obligation to initiate a ‘‘SIP
Call’’ to revise Kentucky’s inadequate
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infrastructure SIP related to interstate
transport requirements.
Response 6: EPA disagrees. Section
110(k)(5) of the CAA provides a
mechanism (i.e., a ‘‘SIP Call’’) for
correcting SIPs that the Administrator
finds to be substantially inadequate to
meet CAA requirements. As discussed
above, EPA has historically interpreted
section 110(a)(1) of the CAA as
establishing the required submittal date
for SIPs addressing all of the ‘‘interstate
transport’’ requirements in section
110(a)(2)(D) including the provisions in
section 110(a)(2)(D)(i)(I) regarding
significant contribution to
nonattainment and interference with
maintenance. The D.C. Circuit’s recent
opinion in EME Homer City, however,
concluded that a SIP cannot be deemed
to lack a required submission or deemed
deficient for failure to meet the
110(a)(2)(D)(i)(I) obligation until EPA
first quantifies that obligation. As such,
and consistent with the EME Homer City
opinion, EPA does not at this time
believe that disapproval of section
110(a)(2)(D)(i)(I) requirements for
Kentucky’s 2008 8-hour ozone
infrastructure SIP constitutes a
substantial inadequacy in the Kentucky
SIP because EPA has yet to quantify the
Commonwealth’s obligation under this
requirement. EPA intends to move
forward expeditiously to implement the
interstate transport requirements of the
CAA.
Comment 7: One Commenter
contends that EPA should disapprove
Kentucky’s 2008 8-hour ozone
infrastructure SIP submission with
regard to the visibility component of
110(a)(2)(D)(i)(II) until such time that
Kentucky imposes best available retrofit
technology (BART) for nitrogen oxides
(NOx) and sulfur dioxides for electric
generating units. The Commenter asserts
that the substitution of the CAIR for
BART is not permanent and enforceable
and references the previous litigation
related to CAIR. The Commenter
provides a number of comments in
relation to EPA’s ‘‘better than BART’’
approach and reliance on CAIR to
support an approval action for the
visibility components of Kentucky’s
2008 8-hour ozone infrastructure
submission.
Response 7: EPA disagrees. As
explained in detail in EPA’s proposed
rulemaking related to today’s action,
EPA believes that in light of the D.C.
Circuit court’s decision to vacate
CSAPR, also known as the Transport
Rule (see EME Homer City, 696 F.3d 7),
and the court’s order for EPA to
‘‘continue administering CAIR pending
the promulgation of a valid
replacement,’’ it is appropriate for EPA
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to rely at this time on CAIR to support
approval of Kentucky’s 2008 8-hour
ozone infrastructure submission as it
relates to visibility. EPA has been
ordered by the court to develop a new
rule, and to continue implementing
CAIR in the meantime. While EPA had
filed a petition for rehearing of the
court’s decision on the Transport Rule,
this petition was later denied on January
24, 2013. The deadline for any party to
file a petition for certiorari with the
Supreme Court has not passed, and the
United States has not yet decided
whether to pursue further appeals. In
the meantime, EPA does not intend to
act in a manner inconsistent with the
decision of the D.C. Circuit. Based on
the current direction from the court to
continue administering CAIR, EPA
believes that it is appropriate to rely on
CAIR emission reductions for purposes
of assessing the adequacy of Kentucky’s
infrastructure SIP with respect to prong
4 of section 110(a)(2)(D)(i)(II) while a
valid replacement rule is developed and
until implementation plans complying
with any such new rule are submitted
by the states and acted upon by EPA or
until the EME Homer City case is
resolved in a way that provides different
direction regarding CAIR and CSAPR.
Furthermore, as neither the
Commonwealth nor EPA has taken any
action to remove CAIR from the
Kentucky SIP, CAIR remains part of the
federally-approved SIP and can be
considered in determining whether the
SIP as a whole meets the requirement of
prong 4 of 110(a)(2)(D)(i)(II). EPA is
taking final action to approve the
infrastructure SIP submission with
respect to prong 4 because Kentucky’s
regional haze SIP, which EPA has given
a limited approval in combination with
its SIP provisions to implement CAIR
adequately, prevents sources in
Kentucky from interfering with
measures adopted by other states to
protect visibility during the first
planning period. While EPA is not at
this time proposing to change the March
30, 2012, limited approval and limited
disapproval of Kentucky’s regional haze
SIP, EPA expects to propose an
appropriate action regarding Kentucky’s
regional haze SIP if necessary upon final
resolution of the EME Homer City
litigation. More detailed rationale to
support EPA’s approval of prong 4 for
Kentucky’s 2008 8-hour ozone
infrastructure submission can be found
in EPA’s proposed rulemaking for
today’s final action. See 78 FR 3867.
Comment 8: One Commenter states
that EPA should disapprove the
visibility prong of Kentucky’s 2008 8hour ozone infrastructure submission
because the Commenter asserts that
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Kentucky has failed to conduct its 5year progress review for its regional
haze SIP by the required date.
Response 8: EPA does not agree that
Kentucky has missed its deadline to
submit its 5-year progress review SIP
related to regional haze. Kentucky’s
initial regional haze SIP was submitted
on June 25, 2008, so the
Commonwealth’s 5-year regional haze
progress review SIP is not due until
June 25, 2013. Even assuming, however,
that the deadline for the
Commonwealth’s submittal of its
progress review SIP had passed, this
alone would not warrant the
disapproval of Kentucky’s 2008 8-hour
ozone infrastructure SIP submission as
it relates to visibility.
Comment 9: One Commenter states
‘‘[n]ow that en banc review of Homer
has been denied, EPA should promptly
propose and promulgate a full approval
of KY’s regional haze SIP.’’ The
Commenter also asserts that, ‘‘[t]his
prospective action should also apply to
the other elements of the KY SIP that
address reasonable progress and the
long term strategy for visibility.’’
Response 9: This comment is outside
of the scope of today’s action. As
explained in EPA’s proposal notice
related to today’s action, EPA has
already taken final action on Kentucky’s
regional haze SIP. See 77 FR 19098
(March 30, 2012). EPA’s proposal notice
related to today’s action did not involve
a reconsideration of the Agency’s March
30, 2012, final action on the
Commonwealth’s regional haze SIP.
While EPA’s proposal notice did note
the litigation related to the Transport
Rule and also noted that based on the
EME Homer City court’s decision on the
Transport Rule that it would be
appropriate to propose to rescind its
limited disapproval of Kentucky’s
regional haze SIP and propose a full
approval, EPA did not take such action
because the Agency was awaiting a
decision related to the possibility that
the court would grant EPA’s petition for
an en banc review. EPA mentioned in
that proposal notice that an en banc
review of the court’s decision could
have a different outcome that could bear
on such action on the regional haze SIP.
Since the time of EPA’s proposal for
Kentucky’s 2008 8-hour ozone
infrastructure SIP, the court has denied
EPA’s petition for en banc review. As
noted above, on January 24, 2013, EPA’s
petition was denied and the mandate
was issued to EPA on February 4, 2013.
The deadline for any party to file a
petition for certiorari with the Supreme
Court has not passed and the United
States has not yet decided whether to
pursue further appeals. In the
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meantime, EPA does not intend to act in
a manner inconsistent with the decision
of the D.C. Circuit. However, EPA does
not think it is appropriate in today’s
action to rescind its limited disapproval
of Kentucky’s regional haze SIP.
Notably, as explained in EPA’s proposal
notice related to Kentucky’s 2008 8-hour
ozone infrastructure action, EPA does
not believe that rescinding the Agency’s
previous limited disapproval of
Kentucky’s regional haze SIP is
necessary to support a full approval of
the visibility components of
110(a)(2)(D)(i)(I) and 110(a)(2)(J) for
Kentucky’s 2008 8-hour ozone
infrastructure SIP. Moreover, EPA has
not proposed to rescind the Agency’s
previous limited disapproval, which
would be an appropriate procedural
step prior to rescinding that
disapproval.
Comment 10: One Commenter
contends that ‘‘EPA must disapprove
the infrastructure SIP because it does
not contain the 2008 ozone NAAQS.’’ In
support of this contention, the
Commenter points to a table codified at
401 KAR 53:010, as evidence that
Kentucky’s ozone limits ‘‘remain at
levels set in 1997.’’
Response 10: EPA does not agree with
the Commenter’s assertion that
Kentucky’s 2008 8-hour ozone
infrastructure SIP should be
disapproved because ‘‘it does not
contain the 2008 8-hour ozone
NAAQS.’’ In response to this comment,
EPA has investigated the facts
concerning the table in question. EPA
acknowledges that the table in
Appendix A to 401 KAR 53:010 pointed
to by the Commenter currently does not
list the 2008 8-hour ozone NAAQS.
However, EPA does not believe that the
out-of-date table indicates that the
Kentucky SIP does not adequately
address infrastructure requirements for
the 2008 8-hour ozone NAAQS.
The Commonwealth’s infrastructure
SIP submission explicitly stated that it
was submitted to address the 2008 8hour ozone NAAQS. Within that
submission, the Commonwealth
indicated that its existing provisions are
appropriate for purposes of the 2008 8hour ozone NAAQS. EPA considers this
to be accurate, based upon the specific
contents of the infrastructure SIP
submission for various elements of
section 110(a)(2). For example,
Kentucky’s applicable permitting
regulations define a ‘‘regulated NSR
pollutant’’ as ‘‘[a] pollutant for which a
national ambient air quality standard
has been promulgated* * *.’’ 401 KAR
51:001(207). In assessing permits issued
by the Commonwealth, EPA routinely
interprets the ‘‘for which a national
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ambient air quality standard has been
promulgated’’ language in the Kentucky
SIP as referring to the current federallypromulgated NAAQS. EPA notes that in
practice the Commonwealth is also
addressing the 2008 8-hour ozone
NAAQS.10
Finally, EPA understands that the
Commonwealth has initiated action to
update the out-of-date table cited by the
Commenter to eliminate any ambiguity
or confusion regarding this point. In
consultation with the Commonwealth,
EPA’s understanding is that the
Commonwealth is in the process of
updating the table to reflect the current
NAAQS. EPA believes that, with
correction of the table, there should be
no misunderstandings concerning the
fact that the Commonwealth’s SIP is
designed to address the 2008 8-hour
ozone NAAQS in accordance with the
requirements of section 110(a)(1) and
(2). As such, EPA does not agree that
Kentucky’s infrastructure SIP
submission must be disapproved as a
result of the out-of-date table cited by
the Commenter.
Comment 11: One Commenter
contends that EPA cannot determine
that the Kentucky SIP provides the
necessary assurances required by
section 110(a)(2)(E)(i) that the
Commonwealth will have adequate
personnel, funding and authority under
state law to carry out its implementation
plan given (in the Commenter’s opinion)
that Kentucky’s infrastructure SIP fails
to adequately address the significant
and important requirements of element
(D)(i).
Response 11: EPA does not agree.
Section 110(a)(2)(E)(i) requires that the
SIP provide ‘‘necessary assurances that
the State * * * will have adequate
personnel, funding, and authority under
State * * * law to carry our such
implementation plan * * *.’’ As
described in the proposal for today’s
action, Kentucky has submitted
information to demonstrate that DAQ is
responsible for promulgating rules and
regulations for the NAAQS, emissions
standards, general policies, a system of
permits, fee schedules for the review of
plans and other planning needs. In
addition, EPA noted the March 14,
2012, Agency letter to DAQ outlining
the current status of grant commitments
for 2011, each of which have since been
finalized. Finally, the proposed rule for
today’s action described that Kentucky’s
personnel, funding, and legal authority
10 For example, EPA is currently reviewing the
Suncoke Energy PSD Application (PSD–KY–265),
which was submitted to DAQ on December 7, 2012,
and received by EPA for review February 7, 2013.
The terms of this application reflect the 2008 8-hour
ozone standard as the applicable NAAQS.
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to carry out the Commonwealth’s
implementation plan is included with
all prehearings and final SIP submittals
to EPA. Based upon this information
EPA proposed to approve Kentucky’s
infrastructure submission for purposes
of the 2008 8-hour ozone NAAQS. The
Commenter does not refute these facts.
While the Commenter is correct in
asserting that Kentucky’s infrastructure
SIP presently fails to address section
110(a)(2)(D)(i)(I) for the 2008 8-hour
ozone NAAQS, it is incorrect to
conclude that such failure must result in
a disapproval of section 110(a)(2)(E)(i).
EPA does not view the satisfaction of
section 110(a)(2)(D)(i)(I) requirements as
germane to an evaluation of whether a
state has met its obligations under
section 110(a)(2)(E)(i). Rather, EPA
interprets section 110(a)(2)(E)(i) as
requiring that the state have adequate
authority under statutes, rules, and
regulations to carry out applicable SIP
obligations with respect to the relevant
NAAQS. See 40 CFR Part 51, Subparts
L and O.
As described above, EPA’s
disapproval of the Kentucky
infrastructure SIP as it relates to the
section 110(a)(2)(D)(i)(I) transport
requirements is based upon the
Commonwealth’s reliance upon CAIR to
satisfy the interstate transport
obligations of a NAAQS which CAIR
did not address. The fact that this
portion of the SIP cannot be approved,
however, does not in any way
demonstrate a deficiency in the
underlying authority of the Kentucky
DAQ to promulgate rules and
regulations to address these
requirements. The Commenter provided
no information to suggest that Kentucky
lacks the personnel, authority to address
the interstate transport requirements.
Comment 12: One Commenter asserts
that EPA must disapprove Kentucky’s
infrastructure SIP related to section
110(a)(2)(J) (127 public notice
requirements) because in the
Commenter’s opinion Kentucky does
not provide public notification of 2008
8-hour ozone NAAQS violations in
areas beyond Oldham and Jefferson
counties. Specifically, the Commenter
indicates that the state agency does not
notify the public of 2008 8-hour ozone
violations in counties that are currently
designated attainment for the 1-hour
and 1997 8-hour standards (i.e., all
counties but Jefferson and Oldham).
Response 12: EPA does not agree with
the Commenter’s assertion that EPA
must disapprove Kentucky’s
infrastructure SIP submission as it
relates to the section 110(a)(2)(J)
requirements for public notification
because the SIP does not provide for
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public notification of 2008 8-hour ozone
NAAQS violations.
First the Commenter fails to note the
distinction between exceeding the
ozone NAAQS and violating the ozone
NAAQS. Under the CAA, there is a clear
distinction between a violation and an
exceedance of an ambient air quality
standard.11 Pursuant to the public
notification requirements of section
110(a)(2)(J), states are not required to
notify the public of NAAQS violations
as suggested by the Commenter. Instead,
states are required ‘‘to notify the public
during any calendar [year] on a regular
basis of instances or areas in which any
national primary ambient air quality
standard is exceeded or was exceeded
during any portion of the preceding
calendar year * * *’’ (emphasis added).
See 42 U.S.C. 7427.
Second, the Commenter is mistaken
because the Commonwealth does notify
the public regarding ambient air quality
in Kentucky, including exceedances of
the standard. As described in the
proposal for today’s action, notification
to the public regarding exceedances is
accomplished through Kentucky DAQ’s
Web site at https://air.ky.gov/Pages/
AirQualityIndexMonitoring.aspx, which
provides real time monitoring data for
all of the Commonwealth’s ozone
monitors and provides access to Air
Quality Index (AQI) information.12 In
addition, Kentucky’s Web site also
provides information related to health
considerations based on the
concentration of the pollutants in the air
and information related to ways the
public can help reduce air pollution.
EPA has determined that that this
method of notify the public of ambient
quality is sufficient to meet Kentucky’s
infrastructure SIP obligations described
at section 110(a)(2)(J) regarding public
notification.
Finally, EPA also notes that this
comment presupposes that there have
11 An exceedance occurs when monitored ozone
concentrations exceed the NAAQS. Ozone is
collected as an hourly average of continuous data
and, in the context of the 2008 8-hour ozone
NAAQS is then used to determine the daily 8-hour
average value. An ozone exceedance occurs when
a monitor records an 8-hour averaged ambient level
of ozone above the standard, in this case, above
0.075 parts per million (ppm). A violation of an
ozone standard (as opposed to an exceedance) is
based on 3-year averages of data. Violations of the
8-hour standard are determined using the annual
4th-highest daily maximum 8-hour ozone value at
each monitor. A violation requires a 3-year average
of the annual 4th-highest daily maximum 8-hour
value that is greater than 0.075 ppm.
12 EPA notes that Kentucky provides this
information for monitors through the
Commonwealth, and that the locations of the
monitors are included in the Commonwealth’s
approved network monitoring plan. Thus this
information is available for appropriate locations
throughout the state.
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been violations of the 2008 ozone
NAAQS based on 2010 to 2012 design
values which have yet to be certified.
Although the Kentucky DAQ maintains
the above-referenced Web site with real
time monitoring data for the
Commonwealth’s ozone monitors,
Kentucky is not required to certify each
year’s data until April 1, 2013. As such,
until the 2012 data referenced by the
Commenter is certified, it remains
preliminary and EPA does not view a
NAAQS violation as having occurred.
Consequently, the Commenter’s
reference to data not-yet-certified is
premature.13
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III. This Action
In this rulemaking, EPA is taking final
action to approve Kentucky DAQ’s
infrastructure submission as
demonstrating that the Commonwealth
meets the applicable requirements of
sections 110(a)(1) and (2) of the CAA for
the 2008 8-hour ozone NAAQS, with the
exception of section 110(a)(2)(D)(i)(I)
concerning interstate transport, and
sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J)
pertaining to structural PSD
requirements.
With respect to section
110(a)(2)(D)(i)(I), which pertains to
interstate transport, EPA is taking final
action to disapprove this portion of
Kentucky DAQ’s infrastructure SIP for
the 2008 8-hour ozone NAAQS.
With respect to sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J), EPA is finalizing
conditional approval for this portion of
Kentucky DAQ’s infrastructure SIP for
the 2008 8-hour ozone NAAQS. Today’s
final action to conditionally approve of
these portions of sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J) specifically related to the
structural PSD requirements is based
upon a December 19, 2012, commitment
letter submitted by Kentucky DAQ to
EPA. The Commonwealth’s December
19, 2012, letter can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2012–0700.
Through this letter, Kentucky DAQ,
committed to adopt specific enforceable
measures to address current deficiencies
13 EPA also wishes to clarify that Commenter
incorrectly indicates that all counties aside from
Jefferson and Oldham are designated attainment for
the 2008 8-hour ozone NAAQS. There are also three
partial counties in Northern Kentucky (i.e., Boone,
Campbell and Kenton) are designated
nonattainment for the 2008 8-hour ozone NAAQS
as part of the Cincinnati-Hamilton Nonattainment
Area. The Campbell County monitor referred to by
the Commenter is included in the 2008 8-hour
ozone nonattainment area and is not in area
designated attainment as suggested by one
Commenter. See 77 FR 30088.
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in its SIP related to the structural PSD
requirements of the PSD and NNSR
requirements related to the
implementation of the NSR PM2.5 Rule
and the PM2.5 PSD Increment-SILs-SMC
Rule (only as it relates to PM2.5
Increments). This commitment letter
meets the requirements of section
110(k)(4) of the CAA, and as such, EPA
is relying upon this commitment to
conditionally approve sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J). For more information,
see EPA’s proposal for today’s
rulemaking. See 78 FR 3867.
Accordingly, for purposes of today’s
conditional approval sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as it relates to the
structural PSD requirements, Kentucky
DAQ must submit to EPA by March 10,
2014, a SIP revision adopting the
specific enforceable measures as
described in the Commonwealth’s
commitment letter described above. If
the Commonwealth fails to actually
submit this revision by March 10, 2014,
today’s conditional approval will
automatically become a disapproval for
the 2008 8-hour ozone NAAQS.
IV. Final Action
EPA is taking final action to approve
most elements contained in Kentucky
DAQ’s infrastructure SIP submission
made by the Commonwealth on
September 8, 2009, as revised on July
17, 2012, because it addresses the
required infrastructure elements for the
2008 8-hour ozone NAAQS with
exception of sections 110(a)(2)(C), prong
3 of 110(a)(2)(D)(i), and 110(a)(2)(J) as
they relate to structural PSD
requirements, and section
110(a)(2)(D)(i)(I) as it relates to interstate
transport. With the exceptions noted
above Kentucky DAQ has addressed the
elements of the CAA 110(a)(1) and (2)
SIP requirements pursuant to section
110 of the CAA to ensure that the 2008
8-hour ozone NAAQS are implemented,
enforced, and maintained in Kentucky.
With respect to section
110(a)(2)(D)(i)(I) specifically pertaining
interstate transport, EPA is finalizing
disapproval for this portion of Kentucky
DAQ’s infrastructure SIP for the 2008 8hour ozone NAAQS.
With respect to sections 110(a)(2)(C),
prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J) as they relate to the
structural PSD requirements of the PSD
and NNSR requirements related to the
implementation of the NSR PM2.5 Rule
and the PM2.5 PSD Increment-SILs-SMC
Rule (only as it relates to PM2.5
Increments), EPA is taking final action
to conditionally approve the
Commonwealth’s infrastructure SIP in
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part, based on an December 19, 2012,
commitment that Kentucky DAQ will
adopt specific enforceable measures
related to the structural PSD
requirements detailed above into its SIP
and submit these revisions to EPA by
March 10, 2014. If the Commonwealth
fails to actually submit these revisions
by the applicable dates described above,
today’s conditional approval(s) will
automatically be disapproved on that
date.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
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practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 6, 2013. Filing a petition
for reconsideration by the Administrator
of this final rule does not affect the
finality of this action for the purposes of
judicial review nor does it extend the
time within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: March 1, 2013.
A. Stanley Meiburg
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
§ 52.919 Identification of plan-conditional
approval.
(a) * * *
(b) Conditional Approval—Submittal
from the Commonwealth of Kentucky,
through the Division of Air Quality
(DAQ) of the Kentucky Energy and
Environment Cabinet, dated December
19, 2012, to address the Clean Air Act
(CAA) sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J) for the
2008 8-hour Ozone National Ambient
Air Quality Standards. With respect to
CAA sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J), the
Commonwealth must submit to EPA by
March 10, 2014, SIP revisions adopting
specific enforceable measures related
the structural PSD requirements of the
PSD and NNSR requirements related to
the implementation of the NSR PM2.5
Rule and the PM2.5 PSD Increment-SILsSMC Rule (only as it relates to PM2.5
Increments) as described in the
Commonwealth’s commitment letter.
3. In § 52.920, the table in paragraph
(e) is amended by adding a new entry
‘‘110(a)(1) and (2) Infrastructure
Requirements for the 2008 8-Hour
Ozone National Ambient Air Quality
Standards’’ at the end of the table to
read as follows:
■
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart S—Kentucky
2. Section 52.919 is amended by
designating the existing undesignated
paragraph as paragraph (a) and adding
paragraph (b) to read as follows:
■
§ 52.920
*
*
Identification of plan.
*
*
*
(e) * * *
EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS
Name of non-regulatory
SIP provision
Applicable
geographic or nonattainment area
State submittal
date/effective
date
EPA approval date
Explanations
*
110(a)(1) and (2) Infrastructure Requirements for the 2008 8Hour Ozone National
Ambient Air Quality
Standards.
*
*
Commonwealth of Kentucky.
7/17/2012
*
*
3/7/2013 .......................
[Insert citation of publication].
*
*
With the exception of section 110(a)(2)(D)(i)(I)
concerning interstate transport which is being
disapproved and, the portions of sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J) related to structural PSD requirements, which are being conditionally approved.
4. Section 52.930 is amended by
adding paragraph (l) to read as follows:
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Federal Register / Vol. 78, No. 45 / Thursday, March 7, 2013 / Rules and Regulations
§ 52.930
Control strategy: Ozone.
*
*
*
*
*
(l) Disapproval. EPA is disapproving
in part, the Commonwealth of
Kentucky’s Infrastructure SIP for the
2008 8-hour Ozone National Ambient
Air Quality Standards addressing
section 110(a)(2)(D)(i)(I) concerning
interstate transport requirements,
submitted July 17, 2012.
[FR Doc. 2013–05352 Filed 3–6–13; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Part 412
[CMS–1588–N]
RIN 0938–AR12
Medicare Program; Extension of the
Payment Adjustment for Low-volume
Hospitals and the Medicare-dependent
Hospital (MDH) Program Under the
Hospital Inpatient Prospective
Payment Systems (IPPS) for Acute
Care Hospitals for Fiscal Year 2013
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Notice of extension.
AGENCY:
This notice announces
changes to the payment adjustment for
low-volume hospitals and to the
Medicare-dependent hospital (MDH)
program under the hospital inpatient
prospective payment systems (IPPS) for
FY 2013 in accordance with sections
605 and 606, respectively, of the
American Taxpayer Relief Act of 2012.
DATES: Effective date: March 4, 2013.
Applicability dates: The provisions
described in this notice are applicable
for discharges on or after October 1,
2012 and on or before September 30,
2013.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Michele Hudson, (410) 786–5490.
Maria Navarro, (410) 786–4553.
Shevi Marciano, (410) 786–2874.
SUPPLEMENTARY INFORMATION:
emcdonald on DSK67QTVN1PROD with RULES
I. Background
On January 2, 2013, the American
Taxpayer Relief Act of 2012 (ATRA)
(Pub. L. 112–240) was enacted. Section
605 of the ATRA extends changes to the
payment adjustment for low-volume
hospitals for an additional year, through
fiscal year (FY) 2013. Section 606 of the
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14689
ATRA extends the Medicare-dependent
hospital (MDH) program for an
additional year, through FY 2013.
hospitals with greater than 1,600
discharges of such individuals in the
fiscal year.’’
II. Provisions of the Notice
We revised the regulations at 42 CFR
412.101 to reflect the changes to the
qualifying criteria and the payment
adjustment for low-volume hospitals
according to the provisions of the
Affordable Care Act in the FY 2011
IPPS/LTCH PPS final rule (75 FR 50238
through 50275 and 50414). In addition,
we also defined, at § 412.101(a), the
term ‘‘road miles’’ to mean ‘‘miles’’ as
defined at § 412.92(c)(1), and clarified
the existing regulations to indicate that
a hospital must continue to qualify as a
low-volume hospital in order to receive
the payment adjustment in that year
(that is, it is not based on a one-time
qualification). Furthermore, in that same
final rule, we discussed the process for
requesting and obtaining the lowvolume hospital payment adjustment for
FY 2011 (75 FR 50240). For the second
year of the changes to the low-volume
hospital adjustment provided for by the
provisions of the Affordable Care Act
(that is, FY 2012), consistent with the
regulations at § 412.101(b)(2)(ii), we
updated the discharge data source used
to identify qualifying low-volume
hospitals and calculate the payment
adjustment (percentage increase) in the
FY 2012 IPPS/LTCH PPS final rule (76
FR 51677 through 51680). Under
§ 412.101(b)(2)(ii), for FYs 2011 and
2012, a hospital’s Medicare discharges
from the most recently available
MedPAR data, as determined by CMS,
are used to determine if the hospital
meets the discharge criteria to receive
the low-volume payment adjustment in
the current year. In that same final rule,
we established that, for FY 2012,
qualifying low-volume hospitals and
their payment adjustment are
determined using Medicare discharge
data from the March 2011 update of the
FY 2010 MedPAR file, as these data
were the most recent data available at
that time. In addition, we noted that
eligibility for the low-volume payment
adjustment for FY 2012 was also
dependent upon meeting (if the hospital
was qualifying for the low-volume
payment adjustment for the first time in
FY 2012), or continuing to meet (if the
hospital qualified in FY 2011) the
mileage criteria specified at
§ 412.101(b)(2)(ii). Furthermore, we
established a procedure for a hospital to
request low-volume hospital status for
FY 2012 (which was consistent with the
process we employed for the lowvolume hospital payment adjustment for
FY 2011).
A. Extension of the Payment Adjustment
for Low-Volume Hospitals
1. Background
Section 1886(d)(12) of the Social
Security Act (the Act) provides for an
additional payment to each qualifying
low-volume hospital under the hospital
inpatient prospective payment systems
(IPPS) beginning in FY 2005. Sections
3125 and 10314 of the Affordable Care
Act provided for a temporary change in
the low-volume hospital payment policy
for FYs 2011 and 2012. Prior to the
enactment of the ATRA, beginning with
FY 2013, the low-volume hospital
qualifying criteria and payment
adjustment returned to the statutory
requirements under section 1886(d)(12)
of the Act that were in effect prior to the
amendments made by the Affordable
Care Act. (For additional information on
the expiration of the provisions of the
Affordable Care Act that amended the
low-volume hospital adjustment at
section 1886(d)(12) of the Act, we refer
readers to the FY 2013 IPPS/LTCH PPS
final rule (77 FR 53406 through 53408).)
The regulations describing the payment
adjustment for low-volume hospitals are
at 42 CFR 412.101.
2. Low-Volume Hospital Payment
Adjustment for FYs 2011 and 2012
For FYs 2011 and 2012, sections 3125
and 10314 of the Affordable Care Act
expanded the definition of low-volume
hospital and modified the methodology
for determining the payment adjustment
for hospitals meeting that definition.
Specifically, the provisions of the
Affordable Care Act amended the
qualifying criteria for low-volume
hospitals under section 1886(d)(12)(C)(i)
of the Act to specify that, for FYs 2011
and 2012, a hospital qualifies as a lowvolume hospital if it is more than 15
road miles from another subsection (d)
hospital and has less than 1,600
discharges of individuals entitled to, or
enrolled for, benefits under Part A
during the fiscal year. In addition,
section 1886(d)(12)(D) of the Act, as
added by the Affordable Care Act,
provides that the low-volume hospital
payment adjustment (that is, the
percentage increase) is to be determined
‘‘using a continuous linear sliding scale
ranging from 25 percent for low-volume
hospitals with 200 or fewer discharges
of individuals entitled to, or enrolled
for, benefits under Part A in the fiscal
year to zero percent for low-volume
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]]>Agencies
[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Rules and Regulations]
[Pages 14681-14689]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05352]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0700; FRL-9788-6]
Approval and Promulgation of Implementation Plans; Kentucky;
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve in part, conditionally
approve in part, and disapprove in part, the July 17, 2012, State
Implementation Plan (SIP) submission provided by the Commonwealth of
Kentucky, through the Division of Air Quality (DAQ) of the Kentucky
Energy and Environment Cabinet. Kentucky DAQ submitted the July 17,
2012, SIP submission as a replacement to its original September 8,
2009, SIP submission. Specifically, this final rulemaking pertains to
the Clean Air Act (CAA or Act) requirements for the 2008 8-hour ozone
national ambient air quality standards (NAAQS) infrastructure SIP. The
CAA requires that each state adopt and submit a SIP for the
implementation, maintenance, and enforcement of each NAAQS promulgated
by EPA, which is commonly referred to as an ``infrastructure'' SIP.
Kentucky DAQ made a SIP submission demonstrating that the Kentucky SIP
contains provisions that ensure the 2008 8-hour ozone NAAQS are
implemented, enforced, and maintained in the Commonwealth (hereafter
referred to as ``infrastructure submission''). EPA is now taking final
action on three related actions on Kentucky DAQ's infrastructure SIP
submission. First, EPA is taking action to approve Kentucky DAQ's
infrastructure submission provided to EPA on July 17, 2012, as meeting
certain required infrastructure elements for the 2008 8-hour ozone
NAAQS. Second, with respect to the infrastructure elements related to
specific prevention of significant deterioration (PSD) requirements,
EPA is taking final action to approve, in part and conditionally
approve in part, the infrastructure SIP submission based on a December
19, 2012, commitment from Kentucky DAQ to submit specific enforceable
measures for approval into the SIP to address specific PSD program
deficiencies. Third, EPA is taking final action to disapprove Kentucky
DAQ's infrastructure SIP submission with respect to certain interstate
transport requirements for the 2008 8-hour ozone NAAQS because the
submission does not address the statutory provisions with respect to
the relevant NAAQS and thus does not satisfy the criteria for approval.
The CAA requires EPA to act on this portion of the SIP submission even
though under a recent court decision, Kentucky DAQ was not yet required
to submit a SIP submission to address these interstate transport
requirements. Moreover, under that same court decision, this
disapproval does not trigger an obligation for EPA to promulgate a
Federal Implementation Plan (FIP) to address these interstate transport
requirements.
DATES: This rule will be effective April 8, 2013.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0700. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through 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 a.m. to 4:30 p.m. excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can be reached via electronic mail at
ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Response to Comments
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic structural SIP
requirements, including emissions inventories, monitoring, and modeling
to assure attainment and maintenance for that new NAAQS.
Section 110(a) of the CAA generally requires states to make a SIP
submission to meet applicable requirements in order to provide for the
implementation, maintenance, and enforcement of a new or revised NAAQS
within three years following the promulgation of such NAAQS, or within
such shorter period as EPA may prescribe. These SIP submissions are
commonly referred to as ``infrastructure'' SIP submissions. Section
110(a) imposes the obligation upon states to make an infrastructure SIP
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the infrastructure SIP for a new or revised
NAAQS affect the content of the submission. The contents of such
infrastructure SIP submissions may also vary depending upon what
provisions the state's existing SIP already contains. In the case of
the 2008 8-hour ozone NAAQS, states typically have met the basic
program elements required in section 110(a)(2) through earlier SIP
submissions in connection with previous ozone NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly
[[Page 14682]]
established or revised NAAQS. As mentioned above, these requirements
include basic structural SIP requirements such as modeling, monitoring,
and emissions inventories that are designed to assure attainment and
maintenance of the NAAQS. The applicable infrastructure SIP
requirements that are the subject of this rulemaking are listed
below.\1\
---------------------------------------------------------------------------
\1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to other provisions of the CAA
for submission of SIP revisions specifically applicable for
attainment planning purposes. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the extent that
subsection refers to a permit program as required in part D Title I
of the CAA; and (2) submissions required by section 110(a)(2)(I)
which pertain to the nonattainment planning requirements of part D,
Title I of the CAA. Today's final rulemaking does not address
infrastructure elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of 110(a)(2)(C).
---------------------------------------------------------------------------
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
---------------------------------------------------------------------------
\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
---------------------------------------------------------------------------
110(a)(2)(D)(i): Interstate transport.\3\
---------------------------------------------------------------------------
\3\ Section 110(a)(2)(D)(i) includes four requirements referred
to as prongs 1 through 4. Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II). At this time, pursuant to a recent decision of
the U.S. Court of Appeals for the DC Circuit, the SIP submission
from Kentucky DAQ to meet section 110(a)(2)(D)(i)(I) is not a
required SIP submission. The portions of the SIP submission relating
to 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), in contrast, are
required. Although prongs 1 and 2 are not required, EPA is acting
today to disapprove Kentucky's submittal related to these prongs for
the reasons described in the proposed rule associated with this
rulemaking. See 78 FR 3867. Further information regarding EPA's
disapproval of prongs 1 and 2 is also provided below in section II.
---------------------------------------------------------------------------
110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
---------------------------------------------------------------------------
\4\ This requirement as mentioned above is not relevant to
today's final rulemaking.
---------------------------------------------------------------------------
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
On January 17, 2013, EPA proposed to approve Kentucky's July 17,
2012, infrastructure SIP submission and proposed to conditionally
approve in part sections 110(a)(2)(C), prong 3 of (D)(i), and (J), and
disapprove in part section 110(a)(2)(D)(i) for the 2008 8-hour ozone
NAAQS. See 78 FR 3867.
EPA proposed conditional approval in part for sections
110(a)(2)(C), prong 3 of (D)(i),\5\ and (J) because, while the
Commonwealth's SIP does not currently contain provisions to address the
structural PSD requirements of the PSD and Nonattainment New Source
Review (NNSR) requirements related to the implementation of the NSR
PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC
Rule (only as it relates to PM2.5 Increments), Kentucky DAQ
committed in a letter dated December 19, 2012, to submit, within one
year, specific enforceable measures to EPA for incorporation into the
SIP to address these requirements. See 78 FR 3867. This commitment
letter meets the requirements of section 110(k)(4) of the CAA. Kentucky
DAQ's December 19, 2012, letter can be accessed at www.regulations.gov
using Docket ID No. EPA-R04-OAR-2012-0700.
---------------------------------------------------------------------------
\5\ Section 110(a)(2)(D)(i) includes four requirements referred
to as prongs 1 through 4. Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II). Today's conditional approval only relates to
the structural PSD requirements of section 110(a)(2)(D)(i)(II), also
known as prong 3 as noted above in footnote 3.
---------------------------------------------------------------------------
With respect to section 110(a)(2)(D)(i)(I),\6\ for the 2008 8-hour
ozone NAAQS, EPA published a proposal to disapprove Kentucky DAQ's July
17, 2012, SIP revision. EPA proposed disapproval of these elements
because the infrastructure SIP submission asserted that the
requirements of 110(a)(2)(D)(i)(I) with respect to the 2008 8-hour
ozone NAAQS were satisfied by the Commonwealth's approved regulations
to meet the Clean Air Interstate Rule (CAIR) requirements. CAIR,
however, was promulgated before the 2008 8-hour ozone NAAQS were
promulgated, and CAIR did not, in any way, address interstate transport
requirements related to the 2008 8-hour ozone NAAQS. See 78 FR 3867.
---------------------------------------------------------------------------
\6\ Section 110(a)(2)(D)(i)(I) includes two distinct
requirements referred to as prongs 1 and 2. Prong 1 requires states
to prohibit emissions that significantly contribute to nonattainment
of the NAAQS in another state and prong 2 request states to prohibit
emissions that interfere with maintenance of the NAAQS in another
state.
---------------------------------------------------------------------------
Finally, EPA notes that this final action on Kentucky's
infrastructure SIP submission for the 2008 8-hour ozone NAAQS is
required not only by section 110(k), but also by order issued by the
U.S. District Court for the Northern District of California in
WildEarth Guardians v. Jackson, Case No. 11-CV-5651 YGR. In an October
17, 2012, order granting partial summary judgment in the case, as
modified in a December 7, 2012, order granting in part EPA's motion for
an amended order, that court directed EPA to take final action upon the
infrastructure SIP at issue in this action by March 4, 2013. With
respect to Kentucky, the court specifically ordered EPA to act upon the
infrastructure SIP submission made by the Commonwealth on September 8,
2009, as revised on July 17, 2012. As explained in more detail in
response to relevant comments, EPA is addressing the requirements of
section 110(a)(2)(D)(i)(I) consistent with the opinion of the DC
Circuit Court's opinion in EPA Homer City Generation v. EPA, 696 F.3d 7
(DC Cir. 2012).
II. Response to Comments
EPA received five sets of comments on the January 17, 2013,
proposed rulemaking to approve in part, conditionally approve in part,
and disapprove in part, Kentucky DAQ's infrastructure SIP submission
intended to meet the CAA requirements for the 2008 8-hour ozone NAAQS.
A summary of the comments and EPA's responses are provided below.
Comment 1: One commenter contends that EPA cannot approve the
section 110(a)(2)(A) portion of Kentucky DAQ's infrastructure SIP
submission because certain counties in the Commonwealth have air
quality monitors with data that suggest such areas are not attaining
the 2008 8-hour ozone NAAQS. Specifically, the Commenter cites air
monitoring reports for Jefferson and Oldham counties indicating
violations of the NAAQS based on 2009-2011 design values. The Commenter
further contends that, based on available data for 2010-2012, 10
Kentucky counties will violate the 2008 8-hour ozone NAAQS based on
2010-2012 design values. According to the Commenter, if a designated
attainment area violates the NAAQS, then this means that the state must
necessarily lack adequate emissions limits in its infrastructure SIP
submission to attain and maintain that NAAQS.
Response 1: EPA disagrees with the Commenter's contention that
Kentucky DAQ's 2008 8-hour ozone infrastructure SIP submission is not
approvable with respect to section 110(a)(2)(A) because of the monitor
design values noted by the Commenter. While EPA shares the Commenter's
concern regarding counties monitoring exceedances of the
[[Page 14683]]
2008 8-hour ozone NAAQS based upon 2009-2011 design values, such
concerns are outside the scope of what is germane to an evaluation of
section 110(a)(2)(A) of an infrastructure SIP.\7\
---------------------------------------------------------------------------
\7\ EPA also notes that the Commenter relies upon preliminary
data to suggest that certain areas are violating the 2008 8-hour
ozone NAAQS based upon 2010-2012 data. This data has not yet been
certified, and as such, is not yet finalized. Regardless, for the
reasons discussed in Response 1, EPA does not believe that such
data, were it certified and final, would provide an appropriate
basis upon which to disapprove Kentucky's infrastructure SIP as it
relates to section 110(a)(2)(A) requirements.
---------------------------------------------------------------------------
Pursuant to section 110(a)(2)(A), an infrastructure SIP submission
must include enforceable emission limitations and other control
measures, means, or techniques (including economic incentives such as
fees, marketable permits, and auctions of emissions rights), as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of the Act. The
Commenter, however, seems to believe that in the context of an
infrastructure SIP submission, section 110(a)(2)(A) requires that a
state must monitor attainment of the NAAQS at all monitors throughout
the state in order to demonstrate that the SIP contains the requisite
emissions limitations and other control measures, means or techniques
prescribed by the Act. EPA does not believe that this is a reasonable
interpretation of the provision with respect to infrastructure SIP
submissions. Rather, EPA believes that the proper inquiry at this
juncture is whether the state has met the basic structural SIP
requirements appropriate at the point in time EPA is acting upon it.
The Act provides states and EPA with other tools to address concerns
that arise with respect to violations of the NAAQS in a designated
attainment area, such as the authority to redesignate areas pursuant to
section 107(d)(3), the authority to issue a ``SIP Call'' pursuant to
section 110(k)(5), or the general authority to approve SIP revisions
that can address such violations of the NAAQS through other appropriate
measures. As stated in EPA's proposed approval for this rule, to meet
section 110(a)(2)(A), Kentucky submitted a list of existing emission
reduction measures in the SIP that control emissions of volatile
organic compounds and nitrogen oxides (NOx) in order to address ambient
ozone levels. EPA believes that this is sufficient for purposes of
infrastructure SIP submission.
Comment 2: The Commenter contends that EPA must disapprove
Kentucky's infrastructure SIP submission as it relates to section
110(a)(2)(A) because the submittal fails to contain enforceable ozone
precursor limits and schedules/timetables for compliance to ensure
attainment and maintenance of the NAAQS. Specifically, the Commenter
contends that Kentucky has failed to identify how it will address the
violations for those counties monitoring violations of the NAAQS.
Response 2: EPA disagrees with the Commenter's contention that
Kentucky should be required to submit the emissions limitations and
other control measures associated with a nonattainment plan in order to
satisfy section 110(a)(2)(A) requirements. This would be beyond the
scope of what is required per section 110(a)(2)(A) in the context of an
infrastructure SIP submission. Nonattainment area plans are due on a
different schedule from the section 110 infrastructure elements, and
such plans, if required, are reviewed and acted upon through a separate
process. Here, the most of the counties cited by the Commenter are not
designated nonattainment,\8\ and as such, the nonattainment plan
requirements referenced by the Commenter are not currently due. As
noted above, EPA shares the Commenter's concern regarding areas that
are monitoring exceedances of the 2008 8-hour ozone NAAQS and will work
appropriately with state and local agencies to address such
exceedances. Further, in approving Kentucky's infrastructure SIP, EPA
is affirming that Kentucky has sufficient authority to take the types
of actions required by the CAA in order to bring such areas back into
attainment.
---------------------------------------------------------------------------
\8\ As noted below, a portion of Campbell County, Kentucky is
designated nonattainment for the 2008 8-hour ozone NAAQS in
association with the Cincinnati-Hamilton nonattainment area.
---------------------------------------------------------------------------
Comment 3: A number of Commenters disagreed with EPA's position
that disapproval of the Kentucky's infrastructure SIP, as it relates to
section 110(a)(2)(D)(i)(I) requirements, would not trigger a mandatory
duty for EPA to promulgate a FIP to address these requirements.
Specifically, the Commenters contend that the plain language of the CAA
requires EPA to issue a FIP within two years of a disapproval action.
In addition, the Commenters contend that the decision in EME Homer City
Generation v. EPA, 696 F.3d 7 (DC Cir. 2012) (EME Homer City), was
incorrectly decided and is inconsistent with previous decisions by the
DC Circuit Court of Appeals. The Commenters suggest that EPA should not
voluntarily follow the incorrectly decided EME Homer City opinion,
particularly in the context of an infrastructure action that only
impacts sources in Kentucky, a state under the jurisdiction of the
Sixth Circuit Court of Appeals rather than the DC Circuit Court of
Appeals.
Response 3: EPA has historically adopted the interpretation
suggested by the Commenters that disapproval of section
110(a)(2)(D)(i)(I) would trigger an obligation for the Agency to
promulgate a FIP within two years if the state did not correct the SIP
deficiency within that time. EPA continues to agree that the plain
language of the statute establishes these obligations, and for those
reasons, we asked the U.S. Court of Appeals for the DC Circuit to grant
rehearing en banc of the decision in EME Homer City. That petition,
however, was denied on January 24, 2012, and the mandate was issued to
EPA on February 4, 2012. The deadline for any party to file a petition
for certiorari with the Supreme Court has not passed \9\ and the United
States has not yet decided whether to pursue further appeals. In the
meantime, EPA intends to act in accordance with the EME Homer City
opinion in which the court concluded that states have no obligation to
make a SIP submission to address section 110(a)(2)(D)(i)(I) for a new
or revised NAAQS until EPA has first defined a state's obligations
pursuant to that section. As described in the proposed rulemaking for
today's action, Kentucky did make such a submittal, and consistent with
section 110(k) of the CAA, EPA is required to act upon that submittal.
Because CAIR does not, in any way, address transport with respect to
the 2008 8-hour ozone NAAQS, it cannot be relied upon to satisfy the
requirements of 110(a)(2)(D)(i)(I) for that NAAQS. For this reason, the
Agency proposed to disapprove this portion of the infrastructure SIP
submission. However, because this portion of the infrastructure SIP
submission is not currently required for the 2008 8-hour ozone NAAQS
per the EME Homer City opinion, EPA's disapproval action today does not
presently trigger a FIP obligation.
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\9\ Pursuant to Rule 13 of the Supreme Court Rules, a petition
for certiorari must be filed within 90 days of the date of denial of
rehearing. The court may extend this deadline for good cause by up
to 60 days.
---------------------------------------------------------------------------
EPA also disagrees with the Commenters' suggestion that the Agency
need not follow the DC Circuit's decision in EME Homer City in the
context of an infrastructure action for Kentucky. The EPA rule reviewed
by the court in EME Homer City--``Federal Implementation Plans:
Interstate Transport of Fine Particulate Matter and
[[Page 14684]]
Ozone and Correction of SIP Approvals,'' 76 FR 48207 (August 8, 2011)
also known as the Cross State Air Pollution Rule (CSAPR)--was
designated by EPA as a ``nationally applicable'' rule within the
meaning of section 307(b)(1) of the CAA. See id. at 48352. Accordingly,
all petitions for review of the CSAPR had to be filed in the U.S. Court
Appeals for the DC Circuit and could not be filed in any other federal
court. 42 U.S.C. 7607(b)(1). Accordingly, EPA believes the DC Circuit's
decision in EME Homer City vacating this rule is also nationally
applicable. As such, EPA does not intend to take any actions, even if
they are only reviewable in another federal Circuit Court of Appeals,
that are inconsistent with the decision of the DC Circuit.
Comment 4: A number of states commented that Kentucky contributes
significantly to ozone nonattainment in other states. Specifically, the
Maryland Department of the Environment commented that it has performed
modeling to demonstrate that Maryland will continue to violate the 2008
8-hour ozone NAAQS even if all anthropogenic emissions in Maryland are
eliminated. It contends that corrective actions in states like Kentucky
that contribute to Maryland's nonattainment are necessary in order for
the state to meet the NAAQS. The Delaware Department of Natural
Resources and Environmental Control commented that modeling from the
CSAPR demonstrated that Kentucky emissions significantly contribute to
Delaware's ozone pollution by as much as 4.3 percent of the 2008 8-hour
ozone NAAQS in 2012 and that Delaware has done its fair share to
address ozone, and it expects EPA to ensure that upwind contributing
states fully address their contribution to downwind nonattainment.
Finally, the Connecticut Department of Energy & Environmental
Protection commented that CSAPR modeling demonstrates that Kentucky
emissions significantly contribute to Connecticut's ozone pollution by
as much as 3.4 percent of the 2008 8-hour ozone NAAQS in 2012, and that
Connecticut has done its fair share to address ozone emissions in the
state, and it now expects EPA to ensure that upwind contributing states
fully address their contribution to downwind nonattainment.
Response 4: EPA acknowledges the Commenters' concern that
interstate transport of ozone and ozone precursors from upwind states
to downwind states may have adverse consequences on the ability of
downwind areas to attain the NAAQS in a timely fashion. It is for this
reason that EPA attempted, through CSAPR, to address emissions found to
significantly contribute to nonattainment of or interfere with
maintenance of the 1997 8-hour ozone NAAQS. The modeling done for
CSAPR, however, did not address the 2008 8-hour ozone NAAQS and EPA did
not draw any conclusions with respect to the 2008 8-hour ozone NAAQS
which did not exist when CAIR was promulgated. Moreover, the DC
Circuit, in its decision vacating the CSAPR, held that states are not
required to submit SIPs addressing the requirements of section
110(a)(2)(D)(i)(I) until EPA has quantified their obligation under that
provision. See EME Homer City, 696 F.3d at 37. The EME Homer City
opinion was issued in August of 2012, and on January 24, 2013, the
court denied all petitions for rehearing. As noted in the responses
above, the deadline for asking the Supreme Court to review the DC
Circuit's decision has not passed and the United States has not yet
decided whether to seek further appeal. In the meantime, and unless the
EME Homer City Generation decision is reversed or otherwise modified,
EPA intends to act in accordance with the DC Circuit's opinion. Under
this opinion, EPA has no authority to promulgate a FIP for section
110(a)(2)(D)(i)(I) until such time as the Agency quantifies States'
obligations under this section.
Comment 5: One Commenter contended even if EPA chose to follow the
EME Homer City Generation decision, EPA should acknowledge that the
disapproval starts a FIP clock and then move expeditiously to provide
Kentucky with the information the EME Homer City court said EPA must
provide. The Commenter contended that EPA should be able to quantify
Kentucky's obligations under section 110(a)(2)(D)(i)(I) within six
months, thereby providing the Commonwealth with 18 months to submit a
new SIP to address this requirements.
Response 5: EPA disagrees. As discussed above in the response to
comment 3, unless the D.C. Circuit's decision in EME Homer City is
reversed or otherwise modified, disapproval Kentucky DAQ's 2008
infrastructure SIP as it relates to section 110(a)(2)(i)(I) does not
give EPA authority, much less obligate it, to promulgate a FIP for
Kentucky. EPA intends to move forward expeditiously to address the
interstate transport requirements of the CAA in accordance with all
applicable court decisions.
Comment 6: A number of Commenters contend that EPA's disapproval
section 110(a)(2)(D)(i)(I) triggers a section 110(k)(5) obligation to
initiate a ``SIP Call'' to revise Kentucky's inadequate infrastructure
SIP related to interstate transport requirements.
Response 6: EPA disagrees. Section 110(k)(5) of the CAA provides a
mechanism (i.e., a ``SIP Call'') for correcting SIPs that the
Administrator finds to be substantially inadequate to meet CAA
requirements. As discussed above, EPA has historically interpreted
section 110(a)(1) of the CAA as establishing the required submittal
date for SIPs addressing all of the ``interstate transport''
requirements in section 110(a)(2)(D) including the provisions in
section 110(a)(2)(D)(i)(I) regarding significant contribution to
nonattainment and interference with maintenance. The D.C. Circuit's
recent opinion in EME Homer City, however, concluded that a SIP cannot
be deemed to lack a required submission or deemed deficient for failure
to meet the 110(a)(2)(D)(i)(I) obligation until EPA first quantifies
that obligation. As such, and consistent with the EME Homer City
opinion, EPA does not at this time believe that disapproval of section
110(a)(2)(D)(i)(I) requirements for Kentucky's 2008 8-hour ozone
infrastructure SIP constitutes a substantial inadequacy in the Kentucky
SIP because EPA has yet to quantify the Commonwealth's obligation under
this requirement. EPA intends to move forward expeditiously to
implement the interstate transport requirements of the CAA.
Comment 7: One Commenter contends that EPA should disapprove
Kentucky's 2008 8-hour ozone infrastructure SIP submission with regard
to the visibility component of 110(a)(2)(D)(i)(II) until such time that
Kentucky imposes best available retrofit technology (BART) for nitrogen
oxides (NOx) and sulfur dioxides for electric generating units. The
Commenter asserts that the substitution of the CAIR for BART is not
permanent and enforceable and references the previous litigation
related to CAIR. The Commenter provides a number of comments in
relation to EPA's ``better than BART'' approach and reliance on CAIR to
support an approval action for the visibility components of Kentucky's
2008 8-hour ozone infrastructure submission.
Response 7: EPA disagrees. As explained in detail in EPA's proposed
rulemaking related to today's action, EPA believes that in light of the
D.C. Circuit court's decision to vacate CSAPR, also known as the
Transport Rule (see EME Homer City, 696 F.3d 7), and the court's order
for EPA to ``continue administering CAIR pending the promulgation of a
valid replacement,'' it is appropriate for EPA
[[Page 14685]]
to rely at this time on CAIR to support approval of Kentucky's 2008 8-
hour ozone infrastructure submission as it relates to visibility. EPA
has been ordered by the court to develop a new rule, and to continue
implementing CAIR in the meantime. While EPA had filed a petition for
rehearing of the court's decision on the Transport Rule, this petition
was later denied on January 24, 2013. The deadline for any party to
file a petition for certiorari with the Supreme Court has not passed,
and the United States has not yet decided whether to pursue further
appeals. In the meantime, EPA does not intend to act in a manner
inconsistent with the decision of the D.C. Circuit. Based on the
current direction from the court to continue administering CAIR, EPA
believes that it is appropriate to rely on CAIR emission reductions for
purposes of assessing the adequacy of Kentucky's infrastructure SIP
with respect to prong 4 of section 110(a)(2)(D)(i)(II) while a valid
replacement rule is developed and until implementation plans complying
with any such new rule are submitted by the states and acted upon by
EPA or until the EME Homer City case is resolved in a way that provides
different direction regarding CAIR and CSAPR.
Furthermore, as neither the Commonwealth nor EPA has taken any
action to remove CAIR from the Kentucky SIP, CAIR remains part of the
federally-approved SIP and can be considered in determining whether the
SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i)(II).
EPA is taking final action to approve the infrastructure SIP submission
with respect to prong 4 because Kentucky's regional haze SIP, which EPA
has given a limited approval in combination with its SIP provisions to
implement CAIR adequately, prevents sources in Kentucky from
interfering with measures adopted by other states to protect visibility
during the first planning period. While EPA is not at this time
proposing to change the March 30, 2012, limited approval and limited
disapproval of Kentucky's regional haze SIP, EPA expects to propose an
appropriate action regarding Kentucky's regional haze SIP if necessary
upon final resolution of the EME Homer City litigation. More detailed
rationale to support EPA's approval of prong 4 for Kentucky's 2008 8-
hour ozone infrastructure submission can be found in EPA's proposed
rulemaking for today's final action. See 78 FR 3867.
Comment 8: One Commenter states that EPA should disapprove the
visibility prong of Kentucky's 2008 8-hour ozone infrastructure
submission because the Commenter asserts that Kentucky has failed to
conduct its 5-year progress review for its regional haze SIP by the
required date.
Response 8: EPA does not agree that Kentucky has missed its
deadline to submit its 5-year progress review SIP related to regional
haze. Kentucky's initial regional haze SIP was submitted on June 25,
2008, so the Commonwealth's 5-year regional haze progress review SIP is
not due until June 25, 2013. Even assuming, however, that the deadline
for the Commonwealth's submittal of its progress review SIP had passed,
this alone would not warrant the disapproval of Kentucky's 2008 8-hour
ozone infrastructure SIP submission as it relates to visibility.
Comment 9: One Commenter states ``[n]ow that en banc review of
Homer has been denied, EPA should promptly propose and promulgate a
full approval of KY's regional haze SIP.'' The Commenter also asserts
that, ``[t]his prospective action should also apply to the other
elements of the KY SIP that address reasonable progress and the long
term strategy for visibility.''
Response 9: This comment is outside of the scope of today's action.
As explained in EPA's proposal notice related to today's action, EPA
has already taken final action on Kentucky's regional haze SIP. See 77
FR 19098 (March 30, 2012). EPA's proposal notice related to today's
action did not involve a reconsideration of the Agency's March 30,
2012, final action on the Commonwealth's regional haze SIP. While EPA's
proposal notice did note the litigation related to the Transport Rule
and also noted that based on the EME Homer City court's decision on the
Transport Rule that it would be appropriate to propose to rescind its
limited disapproval of Kentucky's regional haze SIP and propose a full
approval, EPA did not take such action because the Agency was awaiting
a decision related to the possibility that the court would grant EPA's
petition for an en banc review. EPA mentioned in that proposal notice
that an en banc review of the court's decision could have a different
outcome that could bear on such action on the regional haze SIP. Since
the time of EPA's proposal for Kentucky's 2008 8-hour ozone
infrastructure SIP, the court has denied EPA's petition for en banc
review. As noted above, on January 24, 2013, EPA's petition was denied
and the mandate was issued to EPA on February 4, 2013. The deadline for
any party to file a petition for certiorari with the Supreme Court has
not passed and the United States has not yet decided whether to pursue
further appeals. In the meantime, EPA does not intend to act in a
manner inconsistent with the decision of the D.C. Circuit. However, EPA
does not think it is appropriate in today's action to rescind its
limited disapproval of Kentucky's regional haze SIP. Notably, as
explained in EPA's proposal notice related to Kentucky's 2008 8-hour
ozone infrastructure action, EPA does not believe that rescinding the
Agency's previous limited disapproval of Kentucky's regional haze SIP
is necessary to support a full approval of the visibility components of
110(a)(2)(D)(i)(I) and 110(a)(2)(J) for Kentucky's 2008 8-hour ozone
infrastructure SIP. Moreover, EPA has not proposed to rescind the
Agency's previous limited disapproval, which would be an appropriate
procedural step prior to rescinding that disapproval.
Comment 10: One Commenter contends that ``EPA must disapprove the
infrastructure SIP because it does not contain the 2008 ozone NAAQS.''
In support of this contention, the Commenter points to a table codified
at 401 KAR 53:010, as evidence that Kentucky's ozone limits ``remain at
levels set in 1997.''
Response 10: EPA does not agree with the Commenter's assertion that
Kentucky's 2008 8-hour ozone infrastructure SIP should be disapproved
because ``it does not contain the 2008 8-hour ozone NAAQS.'' In
response to this comment, EPA has investigated the facts concerning the
table in question. EPA acknowledges that the table in Appendix A to 401
KAR 53:010 pointed to by the Commenter currently does not list the 2008
8-hour ozone NAAQS. However, EPA does not believe that the out-of-date
table indicates that the Kentucky SIP does not adequately address
infrastructure requirements for the 2008 8-hour ozone NAAQS.
The Commonwealth's infrastructure SIP submission explicitly stated
that it was submitted to address the 2008 8-hour ozone NAAQS. Within
that submission, the Commonwealth indicated that its existing
provisions are appropriate for purposes of the 2008 8-hour ozone NAAQS.
EPA considers this to be accurate, based upon the specific contents of
the infrastructure SIP submission for various elements of section
110(a)(2). For example, Kentucky's applicable permitting regulations
define a ``regulated NSR pollutant'' as ``[a] pollutant for which a
national ambient air quality standard has been promulgated* * *.'' 401
KAR 51:001(207). In assessing permits issued by the Commonwealth, EPA
routinely interprets the ``for which a national
[[Page 14686]]
ambient air quality standard has been promulgated'' language in the
Kentucky SIP as referring to the current federally-promulgated NAAQS.
EPA notes that in practice the Commonwealth is also addressing the 2008
8-hour ozone NAAQS.\10\
---------------------------------------------------------------------------
\10\ For example, EPA is currently reviewing the Suncoke Energy
PSD Application (PSD-KY-265), which was submitted to DAQ on December
7, 2012, and received by EPA for review February 7, 2013. The terms
of this application reflect the 2008 8-hour ozone standard as the
applicable NAAQS.
---------------------------------------------------------------------------
Finally, EPA understands that the Commonwealth has initiated action
to update the out-of-date table cited by the Commenter to eliminate any
ambiguity or confusion regarding this point. In consultation with the
Commonwealth, EPA's understanding is that the Commonwealth is in the
process of updating the table to reflect the current NAAQS. EPA
believes that, with correction of the table, there should be no
misunderstandings concerning the fact that the Commonwealth's SIP is
designed to address the 2008 8-hour ozone NAAQS in accordance with the
requirements of section 110(a)(1) and (2). As such, EPA does not agree
that Kentucky's infrastructure SIP submission must be disapproved as a
result of the out-of-date table cited by the Commenter.
Comment 11: One Commenter contends that EPA cannot determine that
the Kentucky SIP provides the necessary assurances required by section
110(a)(2)(E)(i) that the Commonwealth will have adequate personnel,
funding and authority under state law to carry out its implementation
plan given (in the Commenter's opinion) that Kentucky's infrastructure
SIP fails to adequately address the significant and important
requirements of element (D)(i).
Response 11: EPA does not agree. Section 110(a)(2)(E)(i) requires
that the SIP provide ``necessary assurances that the State * * * will
have adequate personnel, funding, and authority under State * * * law
to carry our such implementation plan * * *.'' As described in the
proposal for today's action, Kentucky has submitted information to
demonstrate that DAQ is responsible for promulgating rules and
regulations for the NAAQS, emissions standards, general policies, a
system of permits, fee schedules for the review of plans and other
planning needs. In addition, EPA noted the March 14, 2012, Agency
letter to DAQ outlining the current status of grant commitments for
2011, each of which have since been finalized. Finally, the proposed
rule for today's action described that Kentucky's personnel, funding,
and legal authority to carry out the Commonwealth's implementation plan
is included with all prehearings and final SIP submittals to EPA. Based
upon this information EPA proposed to approve Kentucky's infrastructure
submission for purposes of the 2008 8-hour ozone NAAQS. The Commenter
does not refute these facts.
While the Commenter is correct in asserting that Kentucky's
infrastructure SIP presently fails to address section
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS, it is incorrect to
conclude that such failure must result in a disapproval of section
110(a)(2)(E)(i). EPA does not view the satisfaction of section
110(a)(2)(D)(i)(I) requirements as germane to an evaluation of whether
a state has met its obligations under section 110(a)(2)(E)(i). Rather,
EPA interprets section 110(a)(2)(E)(i) as requiring that the state have
adequate authority under statutes, rules, and regulations to carry out
applicable SIP obligations with respect to the relevant NAAQS. See 40
CFR Part 51, Subparts L and O.
As described above, EPA's disapproval of the Kentucky
infrastructure SIP as it relates to the section 110(a)(2)(D)(i)(I)
transport requirements is based upon the Commonwealth's reliance upon
CAIR to satisfy the interstate transport obligations of a NAAQS which
CAIR did not address. The fact that this portion of the SIP cannot be
approved, however, does not in any way demonstrate a deficiency in the
underlying authority of the Kentucky DAQ to promulgate rules and
regulations to address these requirements. The Commenter provided no
information to suggest that Kentucky lacks the personnel, authority to
address the interstate transport requirements.
Comment 12: One Commenter asserts that EPA must disapprove
Kentucky's infrastructure SIP related to section 110(a)(2)(J) (127
public notice requirements) because in the Commenter's opinion Kentucky
does not provide public notification of 2008 8-hour ozone NAAQS
violations in areas beyond Oldham and Jefferson counties. Specifically,
the Commenter indicates that the state agency does not notify the
public of 2008 8-hour ozone violations in counties that are currently
designated attainment for the 1-hour and 1997 8-hour standards (i.e.,
all counties but Jefferson and Oldham).
Response 12: EPA does not agree with the Commenter's assertion that
EPA must disapprove Kentucky's infrastructure SIP submission as it
relates to the section 110(a)(2)(J) requirements for public
notification because the SIP does not provide for public notification
of 2008 8-hour ozone NAAQS violations.
First the Commenter fails to note the distinction between exceeding
the ozone NAAQS and violating the ozone NAAQS. Under the CAA, there is
a clear distinction between a violation and an exceedance of an ambient
air quality standard.\11\ Pursuant to the public notification
requirements of section 110(a)(2)(J), states are not required to notify
the public of NAAQS violations as suggested by the Commenter. Instead,
states are required ``to notify the public during any calendar [year]
on a regular basis of instances or areas in which any national primary
ambient air quality standard is exceeded or was exceeded during any
portion of the preceding calendar year * * *'' (emphasis added). See 42
U.S.C. 7427.
---------------------------------------------------------------------------
\11\ An exceedance occurs when monitored ozone concentrations
exceed the NAAQS. Ozone is collected as an hourly average of
continuous data and, in the context of the 2008 8-hour ozone NAAQS
is then used to determine the daily 8-hour average value. An ozone
exceedance occurs when a monitor records an 8-hour averaged ambient
level of ozone above the standard, in this case, above 0.075 parts
per million (ppm). A violation of an ozone standard (as opposed to
an exceedance) is based on 3-year averages of data. Violations of
the 8-hour standard are determined using the annual 4th-highest
daily maximum 8-hour ozone value at each monitor. A violation
requires a 3-year average of the annual 4th-highest daily maximum 8-
hour value that is greater than 0.075 ppm.
---------------------------------------------------------------------------
Second, the Commenter is mistaken because the Commonwealth does
notify the public regarding ambient air quality in Kentucky, including
exceedances of the standard. As described in the proposal for today's
action, notification to the public regarding exceedances is
accomplished through Kentucky DAQ's Web site at https://air.ky.gov/Pages/AirQualityIndexMonitoring.aspx, which provides real time
monitoring data for all of the Commonwealth's ozone monitors and
provides access to Air Quality Index (AQI) information.\12\ In
addition, Kentucky's Web site also provides information related to
health considerations based on the concentration of the pollutants in
the air and information related to ways the public can help reduce air
pollution. EPA has determined that that this method of notify the
public of ambient quality is sufficient to meet Kentucky's
infrastructure SIP obligations described at section 110(a)(2)(J)
regarding public notification.
---------------------------------------------------------------------------
\12\ EPA notes that Kentucky provides this information for
monitors through the Commonwealth, and that the locations of the
monitors are included in the Commonwealth's approved network
monitoring plan. Thus this information is available for appropriate
locations throughout the state.
---------------------------------------------------------------------------
Finally, EPA also notes that this comment presupposes that there
have
[[Page 14687]]
been violations of the 2008 ozone NAAQS based on 2010 to 2012 design
values which have yet to be certified. Although the Kentucky DAQ
maintains the above-referenced Web site with real time monitoring data
for the Commonwealth's ozone monitors, Kentucky is not required to
certify each year's data until April 1, 2013. As such, until the 2012
data referenced by the Commenter is certified, it remains preliminary
and EPA does not view a NAAQS violation as having occurred.
Consequently, the Commenter's reference to data not-yet-certified is
premature.\13\
---------------------------------------------------------------------------
\13\ EPA also wishes to clarify that Commenter incorrectly
indicates that all counties aside from Jefferson and Oldham are
designated attainment for the 2008 8-hour ozone NAAQS. There are
also three partial counties in Northern Kentucky (i.e., Boone,
Campbell and Kenton) are designated nonattainment for the 2008 8-
hour ozone NAAQS as part of the Cincinnati-Hamilton Nonattainment
Area. The Campbell County monitor referred to by the Commenter is
included in the 2008 8-hour ozone nonattainment area and is not in
area designated attainment as suggested by one Commenter. See 77 FR
30088.
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III. This Action
In this rulemaking, EPA is taking final action to approve Kentucky
DAQ's infrastructure submission as demonstrating that the Commonwealth
meets the applicable requirements of sections 110(a)(1) and (2) of the
CAA for the 2008 8-hour ozone NAAQS, with the exception of section
110(a)(2)(D)(i)(I) concerning interstate transport, and sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) pertaining
to structural PSD requirements.
With respect to section 110(a)(2)(D)(i)(I), which pertains to
interstate transport, EPA is taking final action to disapprove this
portion of Kentucky DAQ's infrastructure SIP for the 2008 8-hour ozone
NAAQS.
With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J), EPA is finalizing conditional approval for this
portion of Kentucky DAQ's infrastructure SIP for the 2008 8-hour ozone
NAAQS. Today's final action to conditionally approve of these portions
of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J)
specifically related to the structural PSD requirements is based upon a
December 19, 2012, commitment letter submitted by Kentucky DAQ to EPA.
The Commonwealth's December 19, 2012, letter can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0700. Through
this letter, Kentucky DAQ, committed to adopt specific enforceable
measures to address current deficiencies in its SIP related to the
structural PSD requirements of the PSD and NNSR requirements related to
the implementation of the NSR PM2.5 Rule and the
PM2.5 PSD Increment-SILs-SMC Rule (only as it relates to
PM2.5 Increments). This commitment letter meets the
requirements of section 110(k)(4) of the CAA, and as such, EPA is
relying upon this commitment to conditionally approve sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J). For more
information, see EPA's proposal for today's rulemaking. See 78 FR 3867.
Accordingly, for purposes of today's conditional approval sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) as it
relates to the structural PSD requirements, Kentucky DAQ must submit to
EPA by March 10, 2014, a SIP revision adopting the specific enforceable
measures as described in the Commonwealth's commitment letter described
above. If the Commonwealth fails to actually submit this revision by
March 10, 2014, today's conditional approval will automatically become
a disapproval for the 2008 8-hour ozone NAAQS.
IV. Final Action
EPA is taking final action to approve most elements contained in
Kentucky DAQ's infrastructure SIP submission made by the Commonwealth
on September 8, 2009, as revised on July 17, 2012, because it addresses
the required infrastructure elements for the 2008 8-hour ozone NAAQS
with exception of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as they relate to structural PSD requirements, and
section 110(a)(2)(D)(i)(I) as it relates to interstate transport. With
the exceptions noted above Kentucky DAQ has addressed the elements of
the CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of
the CAA to ensure that the 2008 8-hour ozone NAAQS are implemented,
enforced, and maintained in Kentucky.
With respect to section 110(a)(2)(D)(i)(I) specifically pertaining
interstate transport, EPA is finalizing disapproval for this portion of
Kentucky DAQ's infrastructure SIP for the 2008 8-hour ozone NAAQS.
With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) as they relate to the structural PSD requirements of
the PSD and NNSR requirements related to the implementation of the NSR
PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC
Rule (only as it relates to PM2.5 Increments), EPA is taking
final action to conditionally approve the Commonwealth's infrastructure
SIP in part, based on an December 19, 2012, commitment that Kentucky
DAQ will adopt specific enforceable measures related to the structural
PSD requirements detailed above into its SIP and submit these revisions
to EPA by March 10, 2014. If the Commonwealth fails to actually submit
these revisions by the applicable dates described above, today's
conditional approval(s) will automatically be disapproved on that date.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using
[[Page 14688]]
practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 6, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: March 1, 2013.
A. Stanley Meiburg
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart S--Kentucky
0
2. Section 52.919 is amended by designating the existing undesignated
paragraph as paragraph (a) and adding paragraph (b) to read as follows:
Sec. 52.919 Identification of plan-conditional approval.
(a) * * *
(b) Conditional Approval--Submittal from the Commonwealth of
Kentucky, through the Division of Air Quality (DAQ) of the Kentucky
Energy and Environment Cabinet, dated December 19, 2012, to address the
Clean Air Act (CAA) sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i),
and 110(a)(2)(J) for the 2008 8-hour Ozone National Ambient Air Quality
Standards. With respect to CAA sections 110(a)(2)(C), prong 3 of
110(a)(2)(D)(i), and 110(a)(2)(J), the Commonwealth must submit to EPA
by March 10, 2014, SIP revisions adopting specific enforceable measures
related the structural PSD requirements of the PSD and NNSR
requirements related to the implementation of the NSR PM2.5
Rule and the PM2.5 PSD Increment-SILs-SMC Rule (only as it
relates to PM2.5 Increments) as described in the
Commonwealth's commitment letter.
0
3. In Sec. 52.920, the table in paragraph (e) is amended by adding a
new entry ``110(a)(1) and (2) Infrastructure Requirements for the 2008
8-Hour Ozone National Ambient Air Quality Standards'' at the end of the
table to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Kentucky Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable State submittal
Name of non-regulatory SIP geographic or date/effective EPA approval date Explanations
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Commonwealth of 7/17/2012 3/7/2013.......... With the exception of
Infrastructure Requirements Kentucky. [Insert citation section
for the 2008 8-Hour Ozone of publication]. 110(a)(2)(D)(i)(I)
National Ambient Air Quality concerning interstate
Standards. transport which is
being disapproved
and, the portions of
sections
110(a)(2)(C), prong 3
of 110(a)(2)(D)(i),
and 110(a)(2)(J)
related to structural
PSD requirements,
which are being
conditionally
approved.
----------------------------------------------------------------------------------------------------------------
0
4. Section 52.930 is amended by adding paragraph (l) to read as
follows:
[[Page 14689]]
Sec. 52.930 Control strategy: Ozone.
* * * * *
(l) Disapproval. EPA is disapproving in part, the Commonwealth of
Kentucky's Infrastructure SIP for the 2008 8-hour Ozone National
Ambient Air Quality Standards addressing section 110(a)(2)(D)(i)(I)
concerning interstate transport requirements, submitted July 17, 2012.
[FR Doc. 2013-05352 Filed 3-6-13; 8:45 am]
BILLING CODE 6560-50-P
