Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky: New Source Review for Fine Particulate Matter (PM2.5, 42745-42752 [2014-17323]

Download as PDF Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules 3. Pursuant to 39 U.S.C. 505, the Commission appoints Kenneth E. Richardson to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket. 4. Comments by interested persons, with respect to Library Reference 1 and matters discussed during the technical conference are due no later than September 19, 2014. 5. The Secretary shall arrange for publication of this order in the Federal Register. By the Commission. Shoshana M. Grove, Secretary. [FR Doc. 2014–17249 Filed 7–22–14; 8:45 am] BILLING CODE 7710–FW–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 13 [EPA–HQ–OA–2014–0012; FRL–9914–28– OCFO] Administrative Wage Garnishment Environmental Protection Agency (EPA). ACTION: Proposed rule, extension of public comment period. AGENCY: mstockstill on DSK4VPTVN1PROD with PROPOSALS VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 List of Subjects in 40 CFR Part 13 Environmental protection, Administrative practice and procedure, Claims, Debt Collection, Government employees, Garnishment of wages, Hearing and appeal procedures, Salaries, Wages. Authority: 5 U.S.C. 552a, 5512, and 5514; 31 U.S.C. 3711 et seq.; 3720A; and 3720D. The EPA is extending the period for providing comments on the proposed rule entitled, Administrative Wage Garnishment published in the Federal Register on July 2, 2014 to September 2, 2014. DATES: Comments. The public comment period for the proposed rule published July 2, 2014, (79 FR 37704) is being extended to September 2, 2014 in order to provide the public additional time to submit comments and supporting information. ADDRESSES: Comments. Written comments on the proposed rule may be submitted to the EPA electronically, by mail, by facsimile or through hand delivery/courier. Please refer to the proposal (79 FR 37704) for the addresses and detailed instructions. Docket: Publically available documents relevant to this action are available for public inspection either electronically at https:// www.regulations.gov or in hard copy at the Administrative Wage Garnishment Docket in the EPA Docket Center, EPA/ DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the SUMMARY: Public Reading Room is 202–566–1744. The EPA has established the official public docket # EPA–HQ–OA–2014– 0012. FOR FURTHER INFORMATION CONTACT: FPPS c/o Anita Jones, OCFO/OFM/ FPPS, Mailcode 2733R, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564–4969; fax number: (202) 565–2585; email address: jones.anita@epa.gov. SUPPLEMENTARY INFORMATION: In response to requests from the public, the EPA is extending the previously announced public-comment period. The public-comment period will end September 2, 2014, rather than August 1, 2014. The direct final rule published at 79 FR 37644 on July 2, 2014 was withdrawn. The withdrawal notice of the direct final rule was published in the Federal Register on Thursday, July 17, 2014 at 79 FR 41646. Dated: July 17, 2014. Jeanne Conklin, Acting Director Office of Financial Management. [FR Doc. 2014–17322 Filed 7–22–14; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2013–0486; FRL–9914–26– Region–4] Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky: New Source Review for Fine Particulate Matter (PM2.5) Environmental Protection Agency. ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve changes to the Kentucky State Implementation Plan (SIP), submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality (KDAQ) to EPA on January 31, 2013. The SIP revision modifies the Commonwealth’s New Source Review (NSR), Prevention of Significant SUMMARY: PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 42745 Deterioration (PSD), and Nonattainment New Source Review (NNSR) regulations to adopt into the Kentucky SIP Federal NSR permitting requirements for the implementation of the fine particulate matter (PM2.5) national ambient air quality standards (NAAQS). All of the changes in Kentucky’s January 31, 2013 SIP submission are necessary to comply with Federal requirements. EPA is proposing approval of the Commonwealth’s January 31, 2013 revision to the Kentucky SIP because the Agency has preliminarily determined that the changes are consistent with the Clean Air Act (CAA or Act). Additionally, EPA is proposing to convert two conditional approvals for SIP infrastructure requirements (related to Kentucky’s permitting program) to full approval under the CAA. DATES: Comments must be received on or before August 22, 2014. ADDRESSES: Submit your comments, identified by Docket ID No EPA–R04– OAR–2013–0486, by one of the following methods: 1. www.regulations.gov: Follow the on-line instructions for submitting comments. 2. Email: R4-RDS@epa.gov. 3. Fax: (404) 562–9019. 4. Mail: EPA–R04–OAR–2013–0486 Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. 5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Such deliveries are only accepted during the Regional Office’s normal hours of operation. The Regional Office’s official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. Instructions: Direct your comments to Docket ID No. EPA–R04–OAR–2013– 0486. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email information that you consider to be CBI E:\FR\FM\23JYP1.SGM 23JYP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 42746 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules or otherwise protected. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: For information regarding the Kentucky SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Telephone number: (404) 562–9352; email address: bradley.twunjala@epa.gov. For VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 information regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the same address above. Telephone number: (404) 562–9214; email address: adams.yolanda@epa.gov. For information regarding PM2.5 NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the same address above. Telephone number: (404) 562–9104; email address: huey.joel@epa.gov. SUPPLEMENTARY INFORMATION: I. What action is EPA proposing? II. What is the background for EPA’s proposed action? III. EPA’s Conversion of Conditional Approval of the Commonwealth’s SIP IV. What is EPA’s analysis of the Commonwealth’s SIP revision? V. Proposed Action VI. Statutory and Executive Order Reviews I. What action is EPA proposing? On January 31, 2013, KDAQ submitted a SIP revision to EPA for approval into the Kentucky SIP to adopt Federal requirements for NSR permitting. The Commonwealth’s SIP revision makes changes to the regulations at Kentucky’s Air Quality Regulations, 401 KAR 51:001— Definitions for 401–KAR Chapter 51; 401 KAR 51:017—Prevention of significant deterioration of air quality and 401 KAR 51:052—Review of new sources in or impacting upon nonattainment areas to adopt NSR requirements related to the implementation of the PM2.5 1 NAAQS 1 Airborne particulate matter (PM) with a nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer is one-millionth of a meter, and 2.5 micrometers is less than one-seventh the average width of a human hair) are considered to be ‘‘fine particles’’ and are also known as PM2.5. Fine particles in the atmosphere are made up of a complex mixture of components including sulfate; nitrate; ammonium; elemental carbon; a great variety of organic compounds; and inorganic material (including metals, dust, sea salt, and other trace elements) generally referred to as ‘‘crustal’’ material, although it may contain material from other sources. The health effects associated with exposure to PM2.5 include potential aggravation of respiratory and cardiovascular disease (i.e., lung disease, decreased lung function, asthma attacks and certain cardiovascular issues). On July 18, 1997, EPA revised the NAAQS for PM to add new standards for fine particles, using PM2.5 as the indicator. Previously, EPA used PM10 (inhalable particles smaller than or equal to 10 micrometers in diameter) as the indicator for the PM NAAQS. EPA established health-based (primary) annual and 24-hour standards for PM2.5, setting an annual standard at a level of 15.0 micrograms per cubic meter (mg/m3) and a 24-hour standard at a level of 65 mg/m3. See 62 FR 38652. At the time the 1997 primary standards were established, EPA also established welfare-based (secondary) standards identical to the primary standards. The secondary standards are designed to protect against major environmental effects of PM2.5, such as visibility impairment, soiling, and materials damage. On October 17, 2006, EPA revised the primary and PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 as promulgated in the rulemakings entitled ‘‘Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers,’’ Final Rule, 73 FR 28321 (May 16, 2008) (hereafter referred to as the NSR PM2.5 Rule) and ‘‘Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),’’ Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as the ‘‘PM2.5 PSD Increments-SILs-SMC Rule’’) to comply with Federal NSR permitting regulations at 40 CFR 51.166 and 51.165.2 Additionally, the Commonwealth’s January 31, 2013 SIP submission satisfies EPA’s multiple conditional approvals of the PSD-related requirements for sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) of Kentucky’s infrastructure SIPs for the 1997 and 2006 PM2.5 and 2008 8-hour ozone NAAQS. As a result, EPA is proposing to convert from conditional approval to full approval KDAQ’s infrastructure requirements related to its PSD program. More details on EPA’s conditional approvals are discussed in section III of this rulemaking. EPA is not, however, proposing action to approve into the Kentucky SIP the PM2.5 SILs and SMC thresholds and provisions promulgated in EPA’s PM2.5 PSD Increment-SILs-SMC Rule, 75 FR 64864 (October 20, 2010).3 More information regarding EPA’s decision to not take action on these provisions is provided below in section II. secondary 24-hour NAAQS for PM2.5 to 35 mg/m3 and retained the existing annual PM2.5 NAAQS of 15.0 mg/m3. See 71 FR 61236. On January 15, 2013, EPA published a final rule revising the annual PM2.5 NAAQS to 12 mg/m3. See 78 FR 3086. 2 EPA’s regulations governing the implementation of NSR permitting programs are contained in 40 CFR sections 51.160–.166; 52.21, .24; and part 51, Appendix S. The CAA NSR program is composed of three separate programs: PSD, NNSR, and Minor NSR. PSD is established in part C of title I of the CAA and applies in areas that meet the NAAQS— ‘‘attainment areas’’—as well as areas where there is insufficient information to determine if the area meets the NAAQS—‘‘unclassifiable areas.’’ The NNSR program is established in part D of title I of the CAA and applies in areas that are not in attainment of the NAAQS—‘‘nonattainment areas.’’ The Minor NSR program addresses construction or modification activities that do not qualify as ‘‘major’’ and applies regardless of the designation of the area in which a source is located. Together, these programs are referred to as the NSR programs. 3 The D.C. Circuit Court of Appeals vacated the portions of the PM2.5 PSD Increment-SILs-SMC Rule addressing the SMC and SILs (and remanded the SILs portion to EPA for further consideration). See Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013). E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules II. What is the background for EPA’s proposed action? Today’s proposed action to revise the Kentucky SIP relates to EPA’s NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC Rule. Together these two rules address the NSR permitting requirements needed to implement the PM2.5 NAAQS. The Commonwealth’s January 31, 2013 revision adopts into the Kentucky SIP the PSD and NNSR requirements promulgated in these two rules to be consistent with Federal regulations. More detail on the NSR PM2.5 Rule, PM2.5 PSD Increment-SILs-SMC Rule, the PM2.5 NAAQS and the NSR program can be found in EPA’s May 16, 2008 and October 20, 2010 final rules and are summarized below. See 73 FR 28321 and 75 FR 64864, respectively. mstockstill on DSK4VPTVN1PROD with PROPOSALS A. NSR PM2.5 Implementation Rule On May 16, 2008, EPA finalized the NSR PM2.5 Rule to implement the PM2.5 NAAQS for the NSR permitting program. See 73 FR 28321. The NSR PM2.5 Rule revised the Federal NSR program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas (NAA). Specifically, the NSR PM2.5 Rule established the following NSR provisions to implement the PM2.5 NAAQS: (1) required NSR permits to address directly emitted PM2.5 and certain precursor pollutants; (2) established significant emission rates for direct PM2.5 and precursor pollutants (including sulfur dioxide (SO2) and nitrogen oxides (NOX); (3) established NNSR PM2.5 emission offsets; and (4) required states to account for gases that condense to form particles (condensables) in PM2.5 and PM10 applicability determinations and emission limits in PSD and NNSR permits; and (5) provided a grandfathering provision in the federal program for certain pending PM2.5 permit applications.4 Additionally, the 4 On May 18, 2011, EPA took final action to repeal the PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of the 1997 PM10 Surrogate Policy for PSD permits under the Federal PSD program at 40 CFR 52.21. See 76 FR 28646. In effect, any PSD permit applicant previously covered by the grandfathering provision (for sources that completed and submitted a permit application before July 15, 2008) that did not have a final and effective PSD permit before the effective date of the repeal would no longer be able to rely on the 1997 PM10 Surrogate Policy to satisfy the PSD requirements for PM2.5 unless the application included a valid surrogacy demonstration. The final rule also confirmed that states with SIP-approved PSD permitting programs could no longer rely on the PM10 Surrogate Policy to satisfy the PSD requirements for PM2.5. The Commonwealth’s VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 NSR PM2.5 Rule authorized states to adopt provisions in their NNSR rules that would allow interpollutant offset trading.5 The Commonwealth’s January 31, 2013 SIP revision addresses a portion of the PSD and NNSR provisions established in EPA’s May 16, 2008 NSR PM2.5 Rule. A few key issues described in greater detail below include the NSR PM2.5 litigation and the PM condensable correction. 1. PM2.5 Implementation Rule(s) Litigation On January 4, 2013, the United States Court of Appeals for the District of Columbia Circuit issued a judgment 6 that remanded EPA’s April 25, 2007 7 and May 16, 2008 PM2.5 implementation rules implementing the 1997 PM2.5 NAAQS. See Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The court found that because the statutory definition of PM10 (see section 302(t) of the CAA) included particulate matter with an aerodynamic diameter less than or equal to 10 micrometers, it necessarily includes PM2.5. EPA had developed the 2007 and 2008 (or NSR PM2.5 Rule) rules consistent with the general NAA requirements of subpart 1 of Part D, title I, of the CAA. Relative to January 31, 2013 SIP revision does not rely on the PM10 Surrogate Policy. For more information on the PM10 Surrogate and Grandfathering Policy, see 76 FR 28646 (May 18, 2011), as well as an August 12, 2009, final order on a title V petition describing the use of PM10 as a surrogate for PM2.5 entitled ‘‘In re Louisville Gas & Electric Company, Petition No. IV– 2008–3, Order on Petition.’’ 5 The Commonwealth’s January 31, 2013 SIP submission did not adopt the NNSR interpollutant offset trading provisions EPA codified at 51.165(a)(11). The preferred trading ratios announced in the rule preamble were the subject of a petition to reconsider which was granted by the Administrator. As a result of the reconsideration, EPA issued a memorandum on June 20, 2011, providing that the ratios were no longer supported by the agency as being presumptively approvable for adoption in SIPs containing NNSR programs for PM2.5. See EPA’s June 20, 2011 Memorandum entitled ‘‘Revised Policy to Address Reconsideration of Interpollutant Trading Provisions for Fine Particles (PM2.5)’’ at https:// www.epa.gov/nsr/guidance.html. 6 The Natural Resources Defense Council, Sierra Club, American Lung Association, and Medical Advocates for Healthy Air challenged before the D.C. Circuit EPA’s April 25, 2007 (72 FR 20586) Rule entitled ‘‘Clean Air Fine Particle Implementation Rule,’’ that established detailed implementation regulations to assist states with the development of SIPs to demonstrate attainment for the 1997 annual and 24-hour PM2.5 NAAQS and the separate May 16, 2008 NSR PM2.5 Rule (the subject of today’s proposed rulemaking). Today’s proposed rulemaking only pertains to the impacts of the court’s decision on the May 16, 2008 NSR PM2.5 Rule and not the April 25, 2007 implementation rule as the Commonwealth’s January 31, 2013 SIP revision proposes to adopt the NSR permitting provisions established in the NSR PM2.5 Rule. 7 ‘‘Clean Air Fine Particle Implementation Rule’’ (hereafter referred to as the 2007 Rule); Final Rule, 72 FR 20586 (April 25, 2007). PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 42747 subpart 1, subpart 4 of Part D, title I, includes additional provisions that apply to PM10 NAA and is more specific about what states must do to bring areas into attainment through, among other things, the establishment of a two tier classification system for NAA (moderate or serious). The court concluded that since subpart 4 of the CAA generally applies to PM10, EPA should have also followed the more prescriptive subpart 4 structure for the PM2.5 implementation rules. The court ordered EPA to repromulgate the implementation rules pursuant to subpart 4. In particular, subpart 4 includes section 189(e) of the CAA, which requires the control of major stationary sources of PM10 precursors (and hence under the court decision, PM2.5 precursors) ‘‘except where the Administrator determines that such sources do not contribute significantly to PM10 levels which exceed the standard in the area.’’ Subpart 4 pertains exclusively to particulate matter NAA, and the Court did not address EPA’s implementation of the PM2.5 NAAQS under part C or the PSD program. Thus, EPA does not interpret the court’s decision as affecting implementation of the PSD requirements established in the May 16, 2008 NSR PM2.5 Rule and does not anticipate the need to revise any PSD requirements promulgated in the NSR PM2.5 Rule in order to comply with the court’s decision. On June 2, 2014, EPA published a final rule 8 which, in part, sets a December 31, 2014 deadline for states to make any remaining required attainment-related and NNSR SIP submissions, pursuant to and considering the application of subpart 4. See 79 FR 31566. Further analysis of this litigation in relation to Kentucky’s SIP revision is discussed in section IV.A. The Court’s January 4, 2013, decision can be found in the docket for today’s proposed rulemaking using Docket ID: EPA–R04–OAR–2013–0486. 2. ‘‘Condensable PM’’ Correction In the NSR PM2.5 Rule, EPA revised the definition of ‘‘regulated NSR pollutant’’ for PSD to add a paragraph providing that ‘‘particulate matter (PM) emissions, PM2.5 emissions and PM10 8 The final rule entitled ‘‘Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS.’’ This final rule also identifies the initial classification of current 1997 and 2006 PM2.5 nonattainment areas as moderate and the EPA guidance and relevant rulemakings that are currently available regarding implementation of subpart 4 requirements. E:\FR\FM\23JYP1.SGM 23JYP1 42748 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules emissions’’ shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures and that on or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM2.5 and PM10 in permits. See 73 FR 28321. A similar paragraph added to the NNSR rule does not include ‘‘particulate matter (PM) emissions.’’ See 40 CFR 51.165(a)(1)(xxxvii)(D). On October 25, 2012, EPA took final action to amend the definition of ‘‘regulated NSR pollutant’’ promulgated in the NSR PM2.5 Rule regarding the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA’s Emissions Offset Interpretative Ruling. See 77 FR 65107. The rulemaking removed the inadvertent requirement in the NSR PM2.5 Rule that the measurement of condensable ‘‘particulate matter emissions’’ be included as part of the measurement and regulation of ‘‘particulate matter emissions.’’ The term ‘‘particulate matter emissions’’ includes filterable particles that are larger than PM2.5 or PM10 and is an indicator measured under various New Source Performance Standards (NSPS) (40 CFR part 60).9 The Commonwealth’s January 31, 2013 SIP revision adopts EPA’s definition for regulated NSR pollutant requiring states to consider condensables (at 40 CFR 51.166(b)(49)(vi)), excluding the term ‘‘particulate matter emissions.’’ mstockstill on DSK4VPTVN1PROD with PROPOSALS B. PM2.5 PSD-Increment-SILs-SMC Rule The October 20, 2010 final rulemaking established PM2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS. Today’s action pertains only to the PM2.5 increments (and relevant related implementing provisions) promulgated in the October 20, 2010, rule.10 The Commonwealth’s January 31, 2013 SIP revision adopts NSR changes promulgated in the PM2.5 PSD Increments-SILs-SMC Rule to be consistent with the Federal NSR 9 In addition to the NSPS for PM, it is noted that states regulated ‘‘particulate matter emissions’’ for many years in their SIPs for PM, and the same indicator has been used as a surrogate for determining compliance with certain standards contained in 40 CFR part 63, regarding National Emission Standards for Hazardous Air Pollutants. 10 The October 20, 2010, rule also established PM2.5 SILs and SMC. See 75 FR 64864, 64900. These two provisions were the subject of litigation by the Sierra Club. See section IV of this rulemaking for more information on the litigation or in the docket for today’s proposed action using docket ID: EPA–R04–OAR–2013–0486. VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 regulations and to appropriately implement the State’s NSR program for the PM2.5 NAAQS. For the reasons explained below, EPA is not proposing in this rulemaking to take action to approve the Commonwealth’s proposed revisions related to the SILs (at paragraph (k)(2) of section 51.166 and 52.21) and SMC (at paragraph (i)(5) of section 51.166 and 52.21) promulgated in the PM2.5 PSD Increments-SILs-SMC Rule into the Kentucky SIP. The SILs and SMC portions of the PM2.5 PSD Increments-SILs-SMC Rule were vacated (and in the case of the SILs, also remanded to EPA) by the D.C. Circuit Court of Appeals. See Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013). 1. What are PSD increments? As established in part C of title I of the CAA, EPA’s PSD program protects public health from adverse effects of air pollution by ensuring that construction of new or modified sources in attainment or unclassifiable areas does not lead to significant deterioration of air quality while simultaneously ensuring that economic growth will occur in a manner consistent with preservation of clean air resources. Under section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate that emissions from the proposed construction and operation of a facility ‘‘will not cause, or contribute to, air pollution in excess of any maximum allowable increase or allowable concentration for any pollutant.’’ In other words, when a source applies for a permit to emit a regulated pollutant in an area that is designated as attainment or unclassifiable for a NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the source will cause significant deterioration in air quality. Significant deterioration occurs when the amount of the new pollution exceeds the applicable PSD increment, which is the ‘‘maximum allowable increase’’ of an air pollutant allowed to occur above the applicable baseline concentration 11 for that pollutant. Therefore, an increment is the mechanism used to estimate ‘‘significant deterioration’’ of air quality for a pollutant in an area. For purposes of calculating increment consumption, a baseline area for a particular pollutant includes the attainment or unclassifiable area in which the source is located as well as any other attainment or unclassifiable area in which the source’s emissions of 11 Section 169(4) of the CAA provides that the baseline concentration of a pollutant for a particular baseline area is generally the air quality at the time of the first application for a PSD permit in the area. PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 that pollutant are projected (by air quality modeling) to result in an ambient pollutant increase of at least 1 microgram per meter cubed (mg/m3) (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA’s existing regulations, the establishment of a baseline area for any PSD increment results from the submission of the first complete PSD permit application and is based on the location of the proposed source and its emissions impact on the area. Once the baseline area is established, subsequent PSD sources locating in that area need to consider that a portion of the available increment may have already been consumed by previous emissions increases. In general, the submittal date of the first complete PSD permit application in a particular area is the operative ‘‘minor source baseline date’’ after which new sources must evaluate increment consumption.12 On or before the date of the first complete PSD application, emissions generally are considered to be part of the baseline concentration, except for certain emissions from major stationary sources. Most emissions increases that occur after the minor source baseline date will be counted toward the amount of increment consumed. Similarly, emissions decreases after the applicable baseline date restore or expand the amount of increment that is available. See 75 FR 64864. As described in the PM2.5 PSD Increments-SILs-SMC Rule, and pursuant to the authority under section 166(a) of the CAA, EPA promulgated numerical increments for PM2.5 as a new pollutant 13 for which NAAQS were established after August 7, 1977,14 and derived 24-hour and annual PM2.5 increments for the three area classifications (Class I, II and III). See 75 FR 64864 at 64869 and the ambient air 12 Baseline dates are pollutant-specific. That is, a complete PSD application establishes the baseline date only for those regulated NSR pollutants that are projected to be emitted in significant amounts (as defined in the regulations) by the applicant’s new source or modification. Thus, an area may have different baseline dates for different pollutants. 13 EPA generally characterized the PM 2.5 NAAQS as a NAAQS for a new indicator of PM. EPA did not replace the PM10 NAAQS with the NAAQS for PM2.5 when the PM2.5 NAAQS were promulgated in 1997. EPA rather retained the annual and 24-hour NAAQS for PM10 (retaining PM10 as an indicator of coarse particulate matter),and treated PM2.5 as a new pollutant for purposes of developing increments even though EPA had already developed air quality criteria for PM generally. See 75 FR 64864 (October 20, 2010). 14 EPA interprets section 166(a) to authorize EPA to promulgate pollutant-specific PSD regulations meeting the requirements of section 166(c) and 166(d) for any pollutant for which EPA promulgates a NAAQS after 1977. E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS increment table at 40 CFR 51.166(c)(1) and 52.21(c). In addition to PSD increments for the PM2.5 NAAQS, the PM2.5 PSD Increments-SILs-SMC Rule amended the definition at 40 CFR 51.166 and 52.21 for ‘‘major source baseline date’’ and ‘‘minor source baseline date’’ (including trigger dates) to establish the PM2.5 NAAQS specific dates associated with the implementation of PM2.5 PSD increments. See 75 FR 64864. In accordance with section 166(b) of the CAA, EPA required the states to submit revised implementation plans to EPA for approval (to adopt the PM2.5 PSD increments) within 21 months from promulgation of the final rule (by July 20, 2012). Regardless of when a state submits its revised SIP, the emissions from major sources subject to PSD for PM2.5 for which construction commenced after October 20, 2010 (major source baseline date), consume PM2.5 increment and should be included in the increment analyses occurring after the minor source baseline date is established for an area under the state’s revised PSD program. See 75 FR 64864. As discussed above, the Commonwealth’s January 31, 2013 SIP revision adopts the PM2.5 PSD increment permitting requirements, including the implementing regulations discussed above, promulgated in the PM2.5 PSD Increments-SILs-SMC Rule. vacated parts of the PM2.5 PSD Increment-SILs-SMC Rule establishing the PM2.5 SMC, finding that the Agency had exceeded its statutory authority with respect to these provisions. See id. at 469. On December 9, 2013, EPA issued a final rulemaking to remove the vacated and remanded PM2.5 SILs and the vacated PM2.5 SMC provisions from 40 CFR 51.166 and 52.21.15 See 78 FR 73698. The D.C. Circuit’s decision can be found in the docket for today’s rulemaking at https:// www.regulations.gov using docket ID: EPA–R04–OAR–2013–0486. The Commonwealth’s January 31, 2013 SIP revision adopts both the PM2.5 SIL and SMC screening tools promulgated in EPA’s October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule. However, as a result of the vacatur of these provisions, EPA is not taking action at this time on any portions of KDAQ’s SIP submission regarding the PM2.5 SILs and SMC provisions as codified at 40 CFR 51.166 and 52.21. EPA will consider the Commonwealth’s January 31, 2013 submission regarding the PM2.5 SILs and SMC thresholds in an action separate from today’s rulemaking. 2. SILs and SMC Litigation For background purposes, the SILs and SMC portions of the PM2.5 PSD Increment-SILs-SMC Rule, which EPA is not taking action on today, are numerical values that represent thresholds of insignificant modeled source impacts or monitored (ambient) concentrations, respectively. EPA established such values to be used as screening tools by a major source subject to PSD to determine the subsequent level of analysis and data gathering required for a PSD permit application for emissions of PM2.5. The Sierra Club challenged EPA’s authority to implement the PM2.5 SILs and SMC for PSD purposes as promulgated in the October 20, 2010 PM2.5 PSD Increment-SILs-SMC Rule. See Sierra Club v. EPA, 705 F.3d 458. On January 22, 2013, D.C. Circuit granted a request from EPA to vacate and remand to the Agency the portions of the October 20, 2010 rule addressing the SILs for PM2.5 (found in paragraph (k)(2) in 40 CFR 51.166 and 52.21), except for the parts codifying the PM2.5 SILs in the NSR rule at 40 CFR 51.165(b)(2), so that the EPA could voluntarily correct an error in the provisions. Id. at 463–66. The Court also In addition to adopting required NSR permitting regulations for the implementation of the PM2.5 NAAQS, the Commonwealth’s January 31, 2013 SIP revision also satisfies EPA’s conditional approval of the Commonwealth’s 1997 annual and 2006 24-hour PM2.5, and 2008 8-hour ozone 110(a)(2) infrastructure SIPs 16 with respect to the PSD-related requirements 17 of sections 110(a)(2)(C), VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 III. EPA’s Conversion of Conditional Approvals for the Commonwealth’s Infrastructure SIP 15 Final Rule entitled ‘‘Prevention of Significant Deterioration for Particulate Matter Less Than 2.5 Micrometers—Significant Impact Levels and Significant Monitoring Concentration: Removal of Vacated Elements.’’ 16 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. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. On July 18, 1997, EPA promulgated the primary 1997 annual and 24-hour PM2.5 NAAQS as 15 mg/m3 and 65 mg/m3 respectively. See 62 FR 38652. On October 17, 2006, EPA strengthened the 24-hour PM2.5 NAAQS to 35 mg/m3. See 71 FR 61144. On March 27, 2008, EPA revised the NAAQS for ozone based on an 8-hour average concentrations to 0.075 parts per million (ppm). See 73 FR 16436. 17 There are four separate PSD related rulemakings that states are required to adopt and PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 42749 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the CAA. Kentucky submitted multiple SIP submissions to EPA for approval to address the 110(a)(2) infrastructure SIP requirements for the 1997 annual and 2006 24-hour PM2.5 NAAQS (August 26, 2008 and July 17, 2012, respectively), and the 2008 8-hour ozone NAAQS (July 7, 2012). On July 3, 2012, Kentucky submitted a letter requesting that EPA conditionally approve the Commonwealth’s infrastructure SIP submissions with respect to PSD-related requirements for sections 110(a)(2)(C) and 110(a)(2)(J) for the 1997 and 2006 PM2.5 NAAQS.18 Additionally, the Commonwealth submitted another correspondence on December 19, 2012, requesting conditional approval for PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) for the 2008 lead and 2008 8-hour ozone NAAQS infrastructure submissions.19 Both letters documented the Commonwealth’s commitment to adopt and submit the PSD-related provisions needed to comply with sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) all in accordance with section 110(k)(4) of the CAA to ensure a comprehensive PSD program. have approved into their SIP in order to maintain a comprehensive SIP-approved PSD permitting program and comply with the PSD and enforcement requirements of 110(a)(2) Infrastructure requirements for sections 110(a)(2)(C), (D)(i)(II) and (J) of the CAA. These include: 1) ‘‘Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2 Rule; Final Rule’’ (which codified NOX as an ozone precursor for NSR) (70 FR 71612, November 29, 2005); 2) ‘‘Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule’’ (75 FR 31514, June 3, 2010); 3) the NSR PM2.5 Rule and; 4) the PM2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM2.5 Increments). See 77 FR 46352 (August 3, 2012), 78 FR 3867 (January 17, 2013) and 77 FR 72291 (December 5, 2012). Kentucky’s January 31, 2013 submission satisfies two of the four required PSD rulemakings mentioned above including the 2008 NSR PM2.5 Rule and the PM2.5 Increments-SILs-SMC Rule (only as it relates to the PSD increments). EPA approved the remaining PSD requirements for the Greenhouse Gas Tailoring Rule and the Phase 2 Rule on December 29, 2010 (75 FR 81868) and on September 15, 2010 (75 FR 55988), respectively. 18 EPA also relied upon Kentucky’s July 3, 2012 commitment to address the PSD-related requirements as the basis for conditionally approving the Commonwealth’s 1997 and 2006 PM2.5 NAAQS infrastructure SIPs as they relate to section 110(a)(2)(D)(i)(II). See 78 FR 18241 (March 26, 2013). EPA had already conditionally approved the Commonwealth’s infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS for the PSD-related requirements related to sections 110(a)(2)(C) and (J) on October 3, 2012. See 77 FR 60307. 19 EPA has not taken action on the Commonwealth’s 2008 lead Infrastructure SIP submission but will consider the action in a separate rulemaking. E:\FR\FM\23JYP1.SGM 23JYP1 42750 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules EPA took action to approve in part and conditionally approve in part portions of the Commonwealth’s infrastructure SIP submissions for the 1997 and 2006 PM2.5 NAAQS on October 3, 2012, March 7, 2013, and March 26, 2013. See 77 FR 60307, 78 FR 14681, and 78 FR 18241, respectively. EPA’s conditional approval of the Commonwealth’s PSD requirements for the section 110(a)(2) infrastructure SIPs committed Kentucky to adopt and submit to EPA within one year of publication of the final conditional approvals the required NSR permitting regulations promulgated in the NSR PM2.5 Rule and the PM2.5 PSD increments established in the 2010 PM2.5 PSD Increment-SILs-SMC Rule. As stated above, the submission of the applicable portions of these rules into the Kentucky SIP is necessary to comply with the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the infrastructure SIP for the 1997 annual and 2006 24-hour PM2.5 NAAQS, and the 2008 8-hour ozone NAAQS. The Commonwealth’s January 31, 2013 SIP revision satisfies the conditions listed in EPA’s previous conditional approvals for the infrastructure submissions. Therefore, EPA is proposing action to convert its conditional approvals with respect to the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) for the 2008 8-hour ozone, and the 1997 annual and 2006 24-hour PM2.5 NAAQS to full approval. mstockstill on DSK4VPTVN1PROD with PROPOSALS IV. What is EPA’s analysis of the Commonwealth’s SIP revision? The Commonwealth currently has a SIP-approved NSR program for new and modified stationary sources found at 401 KAR Chapter 51. KDAQ’s PSD preconstruction regulations are found at 401 KAR Chapters 51:001 20 and 51:017 and apply to major stationary sources or modifications constructed in areas designated attainment or unclassifiable/ attainment as required under part C of title I of the CAA with respect to the NAAQS. The Commonwealth’s NNSR regulations are found at Chapter 51:052 and apply to the construction and modification of any major stationary source of air pollution in or impacting upon a nonattainment area, as required by Part D of title I of the CAA. The Commonwealth’s January 31, 2013 SIP submission includes changes to Chapter 51 that adopt into the State’s NSR 20 The Commonwealth’s 401 KAR Chapter 51:001 codifies definitions that apply to sources applying for construction permits in both attainment/ unclassifiable and nonattainment areas. VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 permitting program provisions promulgated in the NSR PM2.5 Rule and the PSD increments established in the PM2.5 PSD Increment-SILs-SMC rule. These changes to the Commonwealth’s regulations became state effective on December 7, 2012. EPA is proposing to approve the changes to Chapter 51 into the Commonwealth’s SIP to be consistent with Federal NSR regulations (at 40 CFR 51.166) and the CAA. the remand. See 79 FR 31566. Upon its effective date, the final rule classifies all existing PM2.5 nonattainment areas as ‘‘Moderate’’ nonattainment areas and sets a deadline of December 31, 2014, for states to submit any SIP submissions, including NNSR SIPs, that may be necessary to satisfy the requirements of subpart 4, part D, title I of the CAA with respect to PM2.5 nonattainment areas.21 In a separate rulemaking process A. NSR PM2.5 Implementation Rule which will follow the June 2014 rule, The Commonwealth’s January 31, EPA is evaluating the requirements of 2013 SIP revision establishes that the subpart 4 as they pertain to NNSR for Commonwealth’s existing NSR PM2.5 emissions. In particular, subpart 4 permitting program requirements for includes section 189(e) of the CAA, PSD and NNSR apply to the PM2.5 which requires the control of major NAAQS and certain precursors. Specifically, the SIP revision adopts the stationary sources of PM10 precursors ‘‘except where the Administrator following NSR PM2.5 Rule PSD and NNSR provisions into the Kentucky SIP: determines that such sources do not contribute significantly to PM10 levels (1) the requirement for PSD and NNSR which exceed the standard in the area.’’ permits to address directly emitted Under the court’s decision in NRDC, PM2.5 and precursor pollutants (sulfur dioxide (SO2) and nitrogen oxides (NOX) section 189(e) of the CAA also applies to PM2.5. (as codified at 40 CFR Kentucky’s submission of revisions to 51.165(a)(1)(xxxvii)(C) and its NNSR regulations at Chapters 51:001 51.166(b)(49)); (2) the significant and 51:052 identify SO2 as a PM2.5 emission rates for direct PM2.5 and precursor and NOX as a presumed PM2.5 precursor pollutants (SO2 and NOx) (as precursor while volatile organic codified at 40 CFR 51.165(a)(1)(x)(A) compounds (VOCs) and ammonia are and 51.166(b)(23)(i)); (3) the NNSR presumed not to be PM2.5 precursors for PM2.5 emission offsets (as codified at 51.165(9)(i)) and (4) the PSD and NNSR a PM2.5 NAA in the Commonwealth. requirement that condensable PM10 and These revisions, although consistent PM2.5 emissions be accounted for in PSD with the 2008 NSR PM2.5 Rule as applicability determinations and in developed consistent with subpart 1 of establishing emissions limitations for the Act, may not contain the elements permitting (as codified at 40 CFR necessary to satisfy the CAA 51.165(a)(1)(xxxvii)(D) and requirements when evaluated under the 51.166(b)(49)). For the reasons subpart 4 statutory requirements. In discussed below, the EPA is proposing particular, Kentucky’s submission does to approve these revisions into the not include the regulation of VOCs and Commonwealth’s SIP. ammonia as PM2.5 precursors, nor does As discussed above in section II, the it include a demonstration consistent DC Circuit in Natural Resources Defense with section 189(e) showing that major Council v. EPA issued a decision that sources of those precursor pollutants remanded the EPA’s NSR PM2.5 Rule would not contribute significantly to rule implementing the 1997 PM2.5 PM2.5 levels exceeding the standard in NAAQS. Relevant here, the NSR PM2.5 the area. For these reasons, EPA cannot Rule promulgated NSR requirements for conclude at this time that this part of implementation of PM2.5 in both Kentucky’s NNSR submission of nonattainment areas and attainment/ revisions to Chapters 51:001 and 51:052 unclassifiable areas. The court found satisfies all of the requirements of that EPA erred in implementing the subpart 4 as they pertain to PM2.5 NNSR PM2.5 NAAQS in these rules solely permitting. pursuant to the general implementation provisions of subpart 1 of part D of title 21 EPA a deadline of December 31, 2014, for the I of the Clean Air Act, rather than states to submit any additional attainment related SIP elements that may be needed to meet the pursuant to the additional applicable requirements of subpart 4 for areas implementation provisions specific to currently designated nonattainment for the 1997 particulate matter nonattainment areas and/or 2006 PM2.5 NAAQS, and to submit SIPs in subpart 4. The Court ordered the EPA addressing the NNSR requirements in subpart 4. to ‘‘repromulgate these rules pursuant to EPA believes that this period provides a relatively Subpart 4 consistent with this opinion.’’ brief but reasonable amount of time for states to ascertain whether and to what extent any additional 706 F.3d at 437. submissions are needed for a particular 1997 or On June 2, 2014, the EPA issued a 2006 PM2.5 NAAQS nonattainment area, and to develop, adopt and submit any such SIPs. final rulemaking that begins to address PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\23JYP1.SGM 23JYP1 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS Although the revisions to Kentucky’s NNSR regulations at Chapters 51:001 and 51:052 may not contain all of the necessary elements to satisfy the CAA requirements when evaluated under the subpart 4 provisions, the revisions themselves represent a strengthening of the currently-approved Kentucky NNSR SIP which does not address PM2.5 at all. As a result of the June 2, 2014 final rule, Kentucky would have until December 31, 2014, to make any additional submission necessary to address the requirements of subpart 4, including addressing the PM2.5 precursors of VOC and ammonia for NNSR permitting purposes. EPA is approving the NNSR revisions to Kentucky’s NNSR permitting program without listing the absence of either the regulation or evaluation of VOCs and ammonia as PM2.5 precursors as a deficiency at this time. Finally, as subpart 4 includes requirements only pertinent to NAA, EPA does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court’s opinion in NRDC v. EPA. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated in the NSR PM2.5 Rule in order to comply with the court’s decision. Accordingly, EPA’s approval of Kentucky’s PSD SIP and infrastructure SIP Elements (C), (D)(i)(II), or (J) with respect to the PSD requirements promulgated by the NSR PM2.5 Rule is not inconsistent with the court’s opinion. B. PM2.5 PSD Increment-SILs-SMC Rule Provisions The Commonwealth’s January 31, 2013 SIP revision adopts into the Kentucky SIP at Chapter 51 the following PSD provisions promulgated in the PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments for PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of the CAA; (2) PM2.5 SILs to be used as a screening tool to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) PM2.5 SMC, also used as a screening tool, to determine the level of data gathering required of a major source in support of its PSD permit application for PM2.5 emissions. Regarding the PM2.5 increments, the SIP revision changes include: 1) the PM2.5 increments as promulgated at 40 CFR 51.166(c)(1) and (p)(4) (for Class I Variances); and 2) amendments to the terms ‘‘major source baseline date’’ (at 40 CFR 51.166(b)(14)(i)(c)), ‘‘minor source baseline date’’ (including VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 establishment of the ‘‘trigger date’’) (at section 51.166(b)(14)(ii)) and ‘‘baseline area’’ (as amended at 51.166(b)(15)(i)). These changes provide for the implementation of the PM2.5 PSD increments for the PM2.5 NAAQS in the state’s PSD program. In today’s action, EPA is proposing to approve the Commonwealth’s January 31, 2013 SIP revision to address the PM2.5 PSD increment provisions promulgated in the PM2.5 PSD Increments-SILs-SMC Rule. As discussed above, EPA is not taking action to approve into the Commonwealth’s SIP the PM2.5 SILs and SMC as established in the PM2.5 PSDIncrement-SILs-SMC Rule due to the DC Circuit’s January 22, 2013 decision to vacate and remand to EPA the SILs and vacate the SMCs. See Sierra Club v. EPA, 705 F.3d 458. EPA has made the preliminary determination to approve the aforementioned PSD permitting provisions promulgated in the PM2.5 PSD Increment-SILs-SMC Rule into the Kentucky SIP to implement the NSR program for the PM2.5 NAAQS. C. Conversion of Conditional Approvals for the Commonwealth’s Infrastructure SIP As discussed above in section III, Kentucky’s January 31, 2013 SIP revision also satisfies the conditions listed in EPA’s previous conditional approvals for the Commonwealth’s 2008 8-hour ozone, and 1997 annual and 2006 24-hour PM2.5 NAAQS infrastructure SIP submissions. Therefore, EPA is proposing action to convert its conditional approvals with respect to the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) to full approvals. Given that the Commonwealth’s January 31, 2013 SIP revision fulfills the conditional approval requirements for conversion to a full approval, the conditional approval language at section 52.919(a)–(c) of 40 CFR part 52, included in EPA’s final conditional approvals published on October 3, 2012 (77 FR 60307), March 7, 2013 (78 FR 14681) and March 26, 2013 (78 FR 18241) are no longer necessary. Thus, EPA is also proposing to remove the conditional approval language at 40 CR 52.919, contingent upon EPA’s full approval of the Commonwealth’s January 31, 2013 SIP revision, to reflect that the infrastructure SIPs for the Commonwealth’s 2008 8hour ozone, and 1997 annual and 2006 24-hour PM2.5 NAAQS have been fully approved. PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 42751 V. Proposed Action EPA is proposing to approve portions of the Commonwealth’s January 31, 2013 SIP revision adopting Federal regulations amended in the May 16, 2008 NSR PM2.5 Rule and the October 20, 2010 PM2.5 PSD Increment-SILsSMC rule with the exception of the PM2.5 SILs and SMCs provisions. Final approval of the Commonwealth’s January 31, 2013 SIP would also satisfy the requirements upon which EPA conditionally approved several Kentucky infrastructure requirements related to the 1997 and 2006 PM2.5 and the 2008 8-hour Ozone NAAQS. As such, EPA is also proposing today, contingent upon full approval of the Commonwealth’s January 31, 2013 SIP revision, to convert EPA’s previous conditional approval of the Commonwealth’s infrastructure requirements related to PSD requirements for the PM2.5 and ozone NAAQS to a full approval. EPA has made the preliminary determination that the Commonwealth’s January 31, 2013 SIP revision, with regard to aforementioned proposed actions, are approvable because they are consistent with section 110 of the CAA and EPA regulations. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by Commonwealth law. For that reason, this proposed action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); E:\FR\FM\23JYP1.SGM 23JYP1 42752 Federal Register / Vol. 79, No. 141 / Wednesday, July 23, 2014 / Proposed Rules • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the Commonwealth, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: July 14, 2014. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2014–17323 Filed 7–22–14; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 mstockstill on DSK4VPTVN1PROD with PROPOSALS [EPA–R09–OAR–2014–0495; FRL–9914–16– Region 9] Revision of Air Quality Implementation Plan; Nevada; Clark County; Stationary Source Permits Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing to fully approve permitting related rules submitted by Nevada as a revision to the Clark County Department of Air Quality SUMMARY: VerDate Mar<15>2010 16:20 Jul 22, 2014 Jkt 232001 (Clark or DEQ) portion of the state implementation plan (SIP) for the State of Nevada. These rules were adopted by DEQ to regulate the construction and modification of stationary sources of air pollution within Clark County. EPA is proposing to approve this SIP revision based on the Agency’s conclusion that the rules are consistent with applicable Clean Air Act (CAA or Act) requirements, policies and guidance. Final approval of these rules would make the rules federally enforceable and correct program deficiencies identified in a previous EPA rulemaking. DATES: Written comments must be received on or before August 22, 2014. ADDRESSES: Submit comments, identified by Docket ID Number EPA– R09–OAR–2014–0495, by one of the following methods: 1. Federal eRulemaking Portal: https://www.regulations.gov. Follow the on-line instructions. 2. Email: R9airpermits@epa.gov. 3. Mail or deliver: Gerardo Rios (AIR– 3), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901. Deliveries are only accepted during the Regional Office’s normal hours of operation. Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through https://www.regulations.gov or email. Regulations.gov is an ‘‘anonymous access’’ system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: EPA has established a docket for this action under EPA–R09–OAR– 2014–0495. Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, by phone: (415) 972–3534 or by email at yannayon.laura@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. Table of Contents I. The State’s Submittals A. Which rules did the State submit? B. What are the existing Clark County rules governing stationary source permits in the Nevada SIP? C. What is the purpose of this proposed rule? II. EPA’s Evaluation A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? III. Public Comment and Proposed Action IV. Statutory and Executive Order Reviews I. The State’s Submittals A. Which rules did the State submit? On April 1, 2014, the Nevada Department of Environmental Protection (NDEP), on behalf of Clark County Department of Air Quality (Clark), submitted amended regulations and a request to remove several outdated regulations, to EPA for approval as revisions to the Clark County portion of the Nevada SIP under the CAA. These New Source Review (NSR) SIP revision submittals, referred to herein as the ‘‘NSR SIP submittal’’ or ‘‘submitted NSR rules,’’ are intended to satisfy previously identified deficiencies to the requirements under both part C (prevention of significant deterioration) (PSD) and part D (nonattainment new source review) of title I of the Act as well as the general preconstruction review requirements for minor sources under section 110(a)(2)(C) of the Act. Please see our previous proposed and final rulemakings for a more detailed description of these rules and the permitting program in Clark County, Nevada. 77 FR 43206 (July 24, 2012); 77 FR 64039 (October 18, 2012). Table 1 lists the rules addressed by this proposal with the dates that they were adopted by Clark and submitted to EPA by NDEP, which is the governor’s designee for Nevada SIP submittals. E:\FR\FM\23JYP1.SGM 23JYP1

Agencies

[Federal Register Volume 79, Number 141 (Wednesday, July 23, 2014)]
[Proposed Rules]
[Pages 42745-42752]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17323]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0486; FRL-9914-26-Region-4]


Approval and Promulgation of Implementation Plans; Commonwealth 
of Kentucky: New Source Review for Fine Particulate Matter 
(PM2.5)

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve changes to the Kentucky State Implementation Plan (SIP), 
submitted by the Commonwealth of Kentucky, through the Kentucky 
Division for Air Quality (KDAQ) to EPA on January 31, 2013. The SIP 
revision modifies the Commonwealth's New Source Review (NSR), 
Prevention of Significant Deterioration (PSD), and Nonattainment New 
Source Review (NNSR) regulations to adopt into the Kentucky SIP Federal 
NSR permitting requirements for the implementation of the fine 
particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). All of the changes in Kentucky's January 31, 2013 
SIP submission are necessary to comply with Federal requirements. EPA 
is proposing approval of the Commonwealth's January 31, 2013 revision 
to the Kentucky SIP because the Agency has preliminarily determined 
that the changes are consistent with the Clean Air Act (CAA or Act). 
Additionally, EPA is proposing to convert two conditional approvals for 
SIP infrastructure requirements (related to Kentucky's permitting 
program) to full approval under the CAA.

DATES: Comments must be received on or before August 22, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2013-0486, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2013-0486 Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2013-0486. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email information that you consider to be CBI

[[Page 42746]]

or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Kentucky 
SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Telephone number: (404) 562-9352; email 
address: bradley.twunjala@epa.gov. For information regarding NSR, 
contact Ms. Yolanda Adams, Air Permits Section, at the same address 
above. Telephone number: (404) 562-9214; email address: 
adams.yolanda@epa.gov. For information regarding PM2.5 
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the 
same address above. Telephone number: (404) 562-9104; email address: 
huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. EPA's Conversion of Conditional Approval of the Commonwealth's 
SIP
IV. What is EPA's analysis of the Commonwealth's SIP revision?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On January 31, 2013, KDAQ submitted a SIP revision to EPA for 
approval into the Kentucky SIP to adopt Federal requirements for NSR 
permitting. The Commonwealth's SIP revision makes changes to the 
regulations at Kentucky's Air Quality Regulations, 401 KAR 51:001--
Definitions for 401-KAR Chapter 51; 401 KAR 51:017--Prevention of 
significant deterioration of air quality and 401 KAR 51:052--Review of 
new sources in or impacting upon nonattainment areas to adopt NSR 
requirements related to the implementation of the PM2.5 \1\ 
NAAQS as promulgated in the rulemakings entitled ``Implementation of 
the New Source Review (NSR) Program for Particulate Matter Less Than 
2.5 Micrometers,'' Final Rule, 73 FR 28321 (May 16, 2008) (hereafter 
referred to as the NSR PM2.5 Rule) and ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC),'' Final Rule, 75 
FR 64864 (October 20, 2010) (hereafter referred to as the 
``PM2.5 PSD Increments-SILs-SMC Rule'') to comply with 
Federal NSR permitting regulations at 40 CFR 51.166 and 51.165.\2\
---------------------------------------------------------------------------

    \1\ Airborne particulate matter (PM) with a nominal aerodynamic 
diameter of 2.5 micrometers or less (a micrometer is one-millionth 
of a meter, and 2.5 micrometers is less than one-seventh the average 
width of a human hair) are considered to be ``fine particles'' and 
are also known as PM2.5. Fine particles in the atmosphere 
are made up of a complex mixture of components including sulfate; 
nitrate; ammonium; elemental carbon; a great variety of organic 
compounds; and inorganic material (including metals, dust, sea salt, 
and other trace elements) generally referred to as ``crustal'' 
material, although it may contain material from other sources. The 
health effects associated with exposure to PM2.5 include 
potential aggravation of respiratory and cardiovascular disease 
(i.e., lung disease, decreased lung function, asthma attacks and 
certain cardiovascular issues). On July 18, 1997, EPA revised the 
NAAQS for PM to add new standards for fine particles, using 
PM2.5 as the indicator. Previously, EPA used 
PM10 (inhalable particles smaller than or equal to 10 
micrometers in diameter) as the indicator for the PM NAAQS. EPA 
established health-based (primary) annual and 24-hour standards for 
PM2.5, setting an annual standard at a level of 15.0 
micrograms per cubic meter ([micro]g/m\3\) and a 24-hour standard at 
a level of 65 [micro]g/m\3\. See 62 FR 38652. At the time the 1997 
primary standards were established, EPA also established welfare-
based (secondary) standards identical to the primary standards. The 
secondary standards are designed to protect against major 
environmental effects of PM2.5, such as visibility 
impairment, soiling, and materials damage. On October 17, 2006, EPA 
revised the primary and secondary 24-hour NAAQS for PM2.5 
to 35 [micro]g/m\3\ and retained the existing annual 
PM2.5 NAAQS of 15.0 [micro]g/m\3\. See 71 FR 61236. On 
January 15, 2013, EPA published a final rule revising the annual 
PM2.5 NAAQS to 12 [micro]g/m\3\. See 78 FR 3086.
    \2\ EPA's regulations governing the implementation of NSR 
permitting programs are contained in 40 CFR sections 51.160-.166; 
52.21, .24; and part 51, Appendix S. The CAA NSR program is composed 
of three separate programs: PSD, NNSR, and Minor NSR. PSD is 
established in part C of title I of the CAA and applies in areas 
that meet the NAAQS--``attainment areas''--as well as areas where 
there is insufficient information to determine if the area meets the 
NAAQS--``unclassifiable areas.'' The NNSR program is established in 
part D of title I of the CAA and applies in areas that are not in 
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR 
program addresses construction or modification activities that do 
not qualify as ``major'' and applies regardless of the designation 
of the area in which a source is located. Together, these programs 
are referred to as the NSR programs.
---------------------------------------------------------------------------

    Additionally, the Commonwealth's January 31, 2013 SIP submission 
satisfies EPA's multiple conditional approvals of the PSD-related 
requirements for sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 
110(a)(2)(J) of Kentucky's infrastructure SIPs for the 1997 and 2006 
PM2.5 and 2008 8-hour ozone NAAQS. As a result, EPA is 
proposing to convert from conditional approval to full approval KDAQ's 
infrastructure requirements related to its PSD program. More details on 
EPA's conditional approvals are discussed in section III of this 
rulemaking.
    EPA is not, however, proposing action to approve into the Kentucky 
SIP the PM2.5 SILs and SMC thresholds and provisions 
promulgated in EPA's PM2.5 PSD Increment-SILs-SMC Rule, 75 
FR 64864 (October 20, 2010).\3\ More information regarding EPA's 
decision to not take action on these provisions is provided below in 
section II.
---------------------------------------------------------------------------

    \3\ The D.C. Circuit Court of Appeals vacated the portions of 
the PM2.5 PSD Increment-SILs-SMC Rule addressing the SMC 
and SILs (and remanded the SILs portion to EPA for further 
consideration). See Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 
2013).

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

[[Page 42747]]

II. What is the background for EPA's proposed action?

    Today's proposed action to revise the Kentucky SIP relates to EPA's 
NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-
SMC Rule. Together these two rules address the NSR permitting 
requirements needed to implement the PM2.5 NAAQS. The 
Commonwealth's January 31, 2013 revision adopts into the Kentucky SIP 
the PSD and NNSR requirements promulgated in these two rules to be 
consistent with Federal regulations. More detail on the NSR 
PM2.5 Rule, PM2.5 PSD Increment-SILs-SMC Rule, 
the PM2.5 NAAQS and the NSR program can be found in EPA's 
May 16, 2008 and October 20, 2010 final rules and are summarized below. 
See 73 FR 28321 and 75 FR 64864, respectively.

A. NSR PM2.5 Implementation Rule

    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to 
implement the PM2.5 NAAQS for the NSR permitting program. 
See 73 FR 28321. The NSR PM2.5 Rule revised the Federal NSR 
program requirements to establish the framework for implementing 
preconstruction permit review for the PM2.5 NAAQS in both 
attainment and nonattainment areas (NAA). Specifically, the NSR 
PM2.5 Rule established the following NSR provisions to 
implement the PM2.5 NAAQS: (1) required NSR permits to 
address directly emitted PM2.5 and certain precursor 
pollutants; (2) established significant emission rates for direct 
PM2.5 and precursor pollutants (including sulfur dioxide 
(SO2) and nitrogen oxides (NOX); (3) established 
NNSR PM2.5 emission offsets; and (4) required states to 
account for gases that condense to form particles (condensables) in 
PM2.5 and PM10 applicability determinations and 
emission limits in PSD and NNSR permits; and (5) provided a 
grandfathering provision in the federal program for certain pending 
PM2.5 permit applications.\4\ Additionally, the NSR 
PM2.5 Rule authorized states to adopt provisions in their 
NNSR rules that would allow interpollutant offset trading.\5\ The 
Commonwealth's January 31, 2013 SIP revision addresses a portion of the 
PSD and NNSR provisions established in EPA's May 16, 2008 NSR 
PM2.5 Rule. A few key issues described in greater detail 
below include the NSR PM2.5 litigation and the PM 
condensable correction.
---------------------------------------------------------------------------

    \4\ On May 18, 2011, EPA took final action to repeal the 
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). 
This final action ended the use of the 1997 PM10 
Surrogate Policy for PSD permits under the Federal PSD program at 40 
CFR 52.21. See 76 FR 28646. In effect, any PSD permit applicant 
previously covered by the grandfathering provision (for sources that 
completed and submitted a permit application before July 15, 2008) 
that did not have a final and effective PSD permit before the 
effective date of the repeal would no longer be able to rely on the 
1997 PM10 Surrogate Policy to satisfy the PSD 
requirements for PM2.5 unless the application included a 
valid surrogacy demonstration. The final rule also confirmed that 
states with SIP-approved PSD permitting programs could no longer 
rely on the PM10 Surrogate Policy to satisfy the PSD 
requirements for PM2.5. The Commonwealth's January 31, 
2013 SIP revision does not rely on the PM10 Surrogate 
Policy. For more information on the PM10 Surrogate and 
Grandfathering Policy, see 76 FR 28646 (May 18, 2011), as well as an 
August 12, 2009, final order on a title V petition describing the 
use of PM10 as a surrogate for PM2.5 entitled 
``In re Louisville Gas & Electric Company, Petition No. IV-2008-3, 
Order on Petition.''
    \5\ The Commonwealth's January 31, 2013 SIP submission did not 
adopt the NNSR interpollutant offset trading provisions EPA codified 
at 51.165(a)(11). The preferred trading ratios announced in the rule 
preamble were the subject of a petition to reconsider which was 
granted by the Administrator. As a result of the reconsideration, 
EPA issued a memorandum on June 20, 2011, providing that the ratios 
were no longer supported by the agency as being presumptively 
approvable for adoption in SIPs containing NNSR programs for 
PM2.5. See EPA's June 20, 2011 Memorandum entitled 
``Revised Policy to Address Reconsideration of Interpollutant 
Trading Provisions for Fine Particles (PM2.5)'' at https://www.epa.gov/nsr/guidance.html.
---------------------------------------------------------------------------

1. PM2.5 Implementation Rule(s) Litigation
    On January 4, 2013, the United States Court of Appeals for the 
District of Columbia Circuit issued a judgment \6\ that remanded EPA's 
April 25, 2007 \7\ and May 16, 2008 PM2.5 implementation 
rules implementing the 1997 PM2.5 NAAQS. See Natural 
Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The 
court found that because the statutory definition of PM10 
(see section 302(t) of the CAA) included particulate matter with an 
aerodynamic diameter less than or equal to 10 micrometers, it 
necessarily includes PM2.5. EPA had developed the 2007 and 
2008 (or NSR PM2.5 Rule) rules consistent with the general 
NAA requirements of subpart 1 of Part D, title I, of the CAA. Relative 
to subpart 1, subpart 4 of Part D, title I, includes additional 
provisions that apply to PM10 NAA and is more specific about 
what states must do to bring areas into attainment through, among other 
things, the establishment of a two tier classification system for NAA 
(moderate or serious). The court concluded that since subpart 4 of the 
CAA generally applies to PM10, EPA should have also followed 
the more prescriptive subpart 4 structure for the PM2.5 
implementation rules. The court ordered EPA to repromulgate the 
implementation rules pursuant to subpart 4.
---------------------------------------------------------------------------

    \6\ The Natural Resources Defense Council, Sierra Club, American 
Lung Association, and Medical Advocates for Healthy Air challenged 
before the D.C. Circuit EPA's April 25, 2007 (72 FR 20586) Rule 
entitled ``Clean Air Fine Particle Implementation Rule,'' that 
established detailed implementation regulations to assist states 
with the development of SIPs to demonstrate attainment for the 1997 
annual and 24-hour PM2.5 NAAQS and the separate May 16, 
2008 NSR PM2.5 Rule (the subject of today's proposed 
rulemaking). Today's proposed rulemaking only pertains to the 
impacts of the court's decision on the May 16, 2008 NSR 
PM2.5 Rule and not the April 25, 2007 implementation rule 
as the Commonwealth's January 31, 2013 SIP revision proposes to 
adopt the NSR permitting provisions established in the NSR 
PM2.5 Rule.
    \7\ ``Clean Air Fine Particle Implementation Rule'' (hereafter 
referred to as the 2007 Rule); Final Rule, 72 FR 20586 (April 25, 
2007).
---------------------------------------------------------------------------

    In particular, subpart 4 includes section 189(e) of the CAA, which 
requires the control of major stationary sources of PM10 
precursors (and hence under the court decision, PM2.5 
precursors) ``except where the Administrator determines that such 
sources do not contribute significantly to PM10 levels which 
exceed the standard in the area.''
    Subpart 4 pertains exclusively to particulate matter NAA, and the 
Court did not address EPA's implementation of the PM2.5 
NAAQS under part C or the PSD program. Thus, EPA does not interpret the 
court's decision as affecting implementation of the PSD requirements 
established in the May 16, 2008 NSR PM2.5 Rule and does not 
anticipate the need to revise any PSD requirements promulgated in the 
NSR PM2.5 Rule in order to comply with the court's decision.
    On June 2, 2014, EPA published a final rule \8\ which, in part, 
sets a December 31, 2014 deadline for states to make any remaining 
required attainment-related and NNSR SIP submissions, pursuant to and 
considering the application of subpart 4. See 79 FR 31566. Further 
analysis of this litigation in relation to Kentucky's SIP revision is 
discussed in section IV.A. The Court's January 4, 2013, decision can be 
found in the docket for today's proposed rulemaking using Docket ID: 
EPA-R04-OAR-2013-0486.
---------------------------------------------------------------------------

    \8\ The final rule entitled ``Identification of Nonattainment 
Classification and Deadlines for Submission of State Implementation 
Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) 
National Ambient Air Quality Standard (NAAQS) and 2006 
PM2.5 NAAQS.'' This final rule also identifies the 
initial classification of current 1997 and 2006 PM2.5 
nonattainment areas as moderate and the EPA guidance and relevant 
rulemakings that are currently available regarding implementation of 
subpart 4 requirements.
---------------------------------------------------------------------------

2. ``Condensable PM'' Correction
    In the NSR PM2.5 Rule, EPA revised the definition of 
``regulated NSR pollutant'' for PSD to add a paragraph providing that 
``particulate matter (PM) emissions, PM2.5 emissions and 
PM10

[[Page 42748]]

emissions'' shall include gaseous emissions from a source or activity 
which condense to form particulate matter at ambient temperatures and 
that on or after January 1, 2011, such condensable particulate matter 
shall be accounted for in applicability determinations and in 
establishing emissions limitations for PM, PM2.5 and 
PM10 in permits. See 73 FR 28321. A similar paragraph added 
to the NNSR rule does not include ``particulate matter (PM) 
emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
    On October 25, 2012, EPA took final action to amend the definition 
of ``regulated NSR pollutant'' promulgated in the NSR PM2.5 
Rule regarding the PM condensable provision at 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset 
Interpretative Ruling. See 77 FR 65107. The rulemaking removed the 
inadvertent requirement in the NSR PM2.5 Rule that the 
measurement of condensable ``particulate matter emissions'' be included 
as part of the measurement and regulation of ``particulate matter 
emissions.'' The term ``particulate matter emissions'' includes 
filterable particles that are larger than PM2.5 or 
PM10 and is an indicator measured under various New Source 
Performance Standards (NSPS) (40 CFR part 60).\9\ The Commonwealth's 
January 31, 2013 SIP revision adopts EPA's definition for regulated NSR 
pollutant requiring states to consider condensables (at 40 CFR 
51.166(b)(49)(vi)), excluding the term ``particulate matter 
emissions.''
---------------------------------------------------------------------------

    \9\ In addition to the NSPS for PM, it is noted that states 
regulated ``particulate matter emissions'' for many years in their 
SIPs for PM, and the same indicator has been used as a surrogate for 
determining compliance with certain standards contained in 40 CFR 
part 63, regarding National Emission Standards for Hazardous Air 
Pollutants.
---------------------------------------------------------------------------

B. PM2.5 PSD-Increment-SILs-SMC Rule

    The October 20, 2010 final rulemaking established PM2.5 
increments pursuant to section 166(a) of the CAA to prevent significant 
deterioration of air quality in areas meeting the NAAQS. Today's action 
pertains only to the PM2.5 increments (and relevant related 
implementing provisions) promulgated in the October 20, 2010, rule.\10\ 
The Commonwealth's January 31, 2013 SIP revision adopts NSR changes 
promulgated in the PM2.5 PSD Increments-SILs-SMC Rule to be 
consistent with the Federal NSR regulations and to appropriately 
implement the State's NSR program for the PM2.5 NAAQS. For 
the reasons explained below, EPA is not proposing in this rulemaking to 
take action to approve the Commonwealth's proposed revisions related to 
the SILs (at paragraph (k)(2) of section 51.166 and 52.21) and SMC (at 
paragraph (i)(5) of section 51.166 and 52.21) promulgated in the 
PM2.5 PSD Increments-SILs-SMC Rule into the Kentucky SIP. 
The SILs and SMC portions of the PM2.5 PSD Increments-SILs-
SMC Rule were vacated (and in the case of the SILs, also remanded to 
EPA) by the D.C. Circuit Court of Appeals. See Sierra Club v. EPA, 705 
F.3d 458 (D.C. Cir. 2013).
---------------------------------------------------------------------------

    \10\ The October 20, 2010, rule also established 
PM2.5 SILs and SMC. See 75 FR 64864, 64900. These two 
provisions were the subject of litigation by the Sierra Club. See 
section IV of this rulemaking for more information on the litigation 
or in the docket for today's proposed action using docket ID: EPA-
R04-OAR-2013-0486.
---------------------------------------------------------------------------

1. What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program 
protects public health from adverse effects of air pollution by 
ensuring that construction of new or modified sources in attainment or 
unclassifiable areas does not lead to significant deterioration of air 
quality while simultaneously ensuring that economic growth will occur 
in a manner consistent with preservation of clean air resources. Under 
section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate 
that emissions from the proposed construction and operation of a 
facility ``will not cause, or contribute to, air pollution in excess of 
any maximum allowable increase or allowable concentration for any 
pollutant.'' In other words, when a source applies for a permit to emit 
a regulated pollutant in an area that is designated as attainment or 
unclassifiable for a NAAQS, the state and EPA must determine if 
emissions of the regulated pollutant from the source will cause 
significant deterioration in air quality. Significant deterioration 
occurs when the amount of the new pollution exceeds the applicable PSD 
increment, which is the ``maximum allowable increase'' of an air 
pollutant allowed to occur above the applicable baseline concentration 
\11\ for that pollutant. Therefore, an increment is the mechanism used 
to estimate ``significant deterioration'' of air quality for a 
pollutant in an area.
---------------------------------------------------------------------------

    \11\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the air quality at the time of the first application for a 
PSD permit in the area.
---------------------------------------------------------------------------

    For purposes of calculating increment consumption, a baseline area 
for a particular pollutant includes the attainment or unclassifiable 
area in which the source is located as well as any other attainment or 
unclassifiable area in which the source's emissions of that pollutant 
are projected (by air quality modeling) to result in an ambient 
pollutant increase of at least 1 microgram per meter cubed ([mu]g/m\3\) 
(annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's existing 
regulations, the establishment of a baseline area for any PSD increment 
results from the submission of the first complete PSD permit 
application and is based on the location of the proposed source and its 
emissions impact on the area. Once the baseline area is established, 
subsequent PSD sources locating in that area need to consider that a 
portion of the available increment may have already been consumed by 
previous emissions increases. In general, the submittal date of the 
first complete PSD permit application in a particular area is the 
operative ``minor source baseline date'' after which new sources must 
evaluate increment consumption.\12\ On or before the date of the first 
complete PSD application, emissions generally are considered to be part 
of the baseline concentration, except for certain emissions from major 
stationary sources. Most emissions increases that occur after the minor 
source baseline date will be counted toward the amount of increment 
consumed. Similarly, emissions decreases after the applicable baseline 
date restore or expand the amount of increment that is available. See 
75 FR 64864. As described in the PM2.5 PSD Increments-SILs-
SMC Rule, and pursuant to the authority under section 166(a) of the 
CAA, EPA promulgated numerical increments for PM2.5 as a new 
pollutant \13\ for which NAAQS were established after August 7, 
1977,\14\ and derived 24-hour and annual PM2.5 increments 
for the three area classifications (Class I, II and III). See 75 FR 
64864 at 64869 and the ambient air

[[Page 42749]]

increment table at 40 CFR 51.166(c)(1) and 52.21(c).
---------------------------------------------------------------------------

    \12\ Baseline dates are pollutant-specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \13\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM10 (retaining 
PM10 as an indicator of coarse particulate matter),and 
treated PM2.5 as a new pollutant for purposes of 
developing increments even though EPA had already developed air 
quality criteria for PM generally. See 75 FR 64864 (October 20, 
2010).
    \14\ EPA interprets section 166(a) to authorize EPA to 
promulgate pollutant-specific PSD regulations meeting the 
requirements of section 166(c) and 166(d) for any pollutant for 
which EPA promulgates a NAAQS after 1977.
---------------------------------------------------------------------------

    In addition to PSD increments for the PM2.5 NAAQS, the 
PM2.5 PSD Increments-SILs-SMC Rule amended the definition at 
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor 
source baseline date'' (including trigger dates) to establish the 
PM2.5 NAAQS specific dates associated with the 
implementation of PM2.5 PSD increments. See 75 FR 64864. In 
accordance with section 166(b) of the CAA, EPA required the states to 
submit revised implementation plans to EPA for approval (to adopt the 
PM2.5 PSD increments) within 21 months from promulgation of 
the final rule (by July 20, 2012). Regardless of when a state submits 
its revised SIP, the emissions from major sources subject to PSD for 
PM2.5 for which construction commenced after October 20, 
2010 (major source baseline date), consume PM2.5 increment 
and should be included in the increment analyses occurring after the 
minor source baseline date is established for an area under the state's 
revised PSD program. See 75 FR 64864. As discussed above, the 
Commonwealth's January 31, 2013 SIP revision adopts the 
PM2.5 PSD increment permitting requirements, including the 
implementing regulations discussed above, promulgated in the 
PM2.5 PSD Increments-SILs-SMC Rule.
2. SILs and SMC Litigation
    For background purposes, the SILs and SMC portions of the 
PM2.5 PSD Increment-SILs-SMC Rule, which EPA is not taking 
action on today, are numerical values that represent thresholds of 
insignificant modeled source impacts or monitored (ambient) 
concentrations, respectively. EPA established such values to be used as 
screening tools by a major source subject to PSD to determine the 
subsequent level of analysis and data gathering required for a PSD 
permit application for emissions of PM2.5.
    The Sierra Club challenged EPA's authority to implement the 
PM2.5 SILs and SMC for PSD purposes as promulgated in the 
October 20, 2010 PM2.5 PSD Increment-SILs-SMC Rule. See 
Sierra Club v. EPA, 705 F.3d 458. On January 22, 2013, D.C. Circuit 
granted a request from EPA to vacate and remand to the Agency the 
portions of the October 20, 2010 rule addressing the SILs for 
PM2.5 (found in paragraph (k)(2) in 40 CFR 51.166 and 
52.21), except for the parts codifying the PM2.5 SILs in the 
NSR rule at 40 CFR 51.165(b)(2), so that the EPA could voluntarily 
correct an error in the provisions. Id. at 463-66. The Court also 
vacated parts of the PM2.5 PSD Increment-SILs-SMC Rule 
establishing the PM2.5 SMC, finding that the Agency had 
exceeded its statutory authority with respect to these provisions. See 
id. at 469. On December 9, 2013, EPA issued a final rulemaking to 
remove the vacated and remanded PM2.5 SILs and the vacated 
PM2.5 SMC provisions from 40 CFR 51.166 and 52.21.\15\ See 
78 FR 73698.
---------------------------------------------------------------------------

    \15\ Final Rule entitled ``Prevention of Significant 
Deterioration for Particulate Matter Less Than 2.5 Micrometers--
Significant Impact Levels and Significant Monitoring Concentration: 
Removal of Vacated Elements.''
---------------------------------------------------------------------------

    The D.C. Circuit's decision can be found in the docket for today's 
rulemaking at https://www.regulations.gov using docket ID: EPA-R04-OAR-
2013-0486.
    The Commonwealth's January 31, 2013 SIP revision adopts both the 
PM2.5 SIL and SMC screening tools promulgated in EPA's 
October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule. 
However, as a result of the vacatur of these provisions, EPA is not 
taking action at this time on any portions of KDAQ's SIP submission 
regarding the PM2.5 SILs and SMC provisions as codified at 
40 CFR 51.166 and 52.21. EPA will consider the Commonwealth's January 
31, 2013 submission regarding the PM2.5 SILs and SMC 
thresholds in an action separate from today's rulemaking.

III. EPA's Conversion of Conditional Approvals for the Commonwealth's 
Infrastructure SIP

    In addition to adopting required NSR permitting regulations for the 
implementation of the PM2.5 NAAQS, the Commonwealth's 
January 31, 2013 SIP revision also satisfies EPA's conditional approval 
of the Commonwealth's 1997 annual and 2006 24-hour PM2.5, 
and 2008 8-hour ozone 110(a)(2) infrastructure SIPs \16\ with respect 
to the PSD-related requirements \17\ of sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the CAA. Kentucky 
submitted multiple SIP submissions to EPA for approval to address the 
110(a)(2) infrastructure SIP requirements for the 1997 annual and 2006 
24-hour PM2.5 NAAQS (August 26, 2008 and July 17, 2012, 
respectively), and the 2008 8-hour ozone NAAQS (July 7, 2012).
---------------------------------------------------------------------------

    \16\ 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. Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIPs meeting the applicable 
requirements of section 110(a)(2) within three years after 
promulgation of a new or revised NAAQS or within such shorter period 
as EPA may prescribe. On July 18, 1997, EPA promulgated the primary 
1997 annual and 24-hour PM2.5 NAAQS as 15 [micro]g/m\3\ 
and 65 [micro]g/m\3\ respectively. See 62 FR 38652. On October 17, 
2006, EPA strengthened the 24-hour PM2.5 NAAQS to 35 
[micro]g/m\3\. See 71 FR 61144. On March 27, 2008, EPA revised the 
NAAQS for ozone based on an 8-hour average concentrations to 0.075 
parts per million (ppm). See 73 FR 16436.
    \17\ There are four separate PSD related rulemakings that states 
are required to adopt and have approved into their SIP in order to 
maintain a comprehensive SIP-approved PSD permitting program and 
comply with the PSD and enforcement requirements of 110(a)(2) 
Infrastructure requirements for sections 110(a)(2)(C), (D)(i)(II) 
and (J) of the CAA. These include: 1) ``Final Rule To Implement the 
8-Hour Ozone National Ambient Air Quality Standard--Phase 2 Rule; 
Final Rule'' (which codified NOX as an ozone precursor 
for NSR) (70 FR 71612, November 29, 2005); 2) ``Prevention of 
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; 
Final Rule'' (75 FR 31514, June 3, 2010); 3) the NSR 
PM2.5 Rule and; 4) the PM2.5 PSD Increment-
SILs-SMC Rule (only as it relates to PM2.5 Increments). 
See 77 FR 46352 (August 3, 2012), 78 FR 3867 (January 17, 2013) and 
77 FR 72291 (December 5, 2012). Kentucky's January 31, 2013 
submission satisfies two of the four required PSD rulemakings 
mentioned above including the 2008 NSR PM2.5 Rule and the 
PM2.5 Increments-SILs-SMC Rule (only as it relates to the 
PSD increments). EPA approved the remaining PSD requirements for the 
Greenhouse Gas Tailoring Rule and the Phase 2 Rule on December 29, 
2010 (75 FR 81868) and on September 15, 2010 (75 FR 55988), 
respectively.
---------------------------------------------------------------------------

    On July 3, 2012, Kentucky submitted a letter requesting that EPA 
conditionally approve the Commonwealth's infrastructure SIP submissions 
with respect to PSD-related requirements for sections 110(a)(2)(C) and 
110(a)(2)(J) for the 1997 and 2006 PM2.5 NAAQS.\18\ 
Additionally, the Commonwealth submitted another correspondence on 
December 19, 2012, requesting conditional approval for PSD-related 
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 
110(a)(2)(J) for the 2008 lead and 2008 8-hour ozone NAAQS 
infrastructure submissions.\19\ Both letters documented the 
Commonwealth's commitment to adopt and submit the PSD-related 
provisions needed to comply with sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) all in accordance with 
section 110(k)(4) of the CAA to ensure a comprehensive PSD program.
---------------------------------------------------------------------------

    \18\ EPA also relied upon Kentucky's July 3, 2012 commitment to 
address the PSD-related requirements as the basis for conditionally 
approving the Commonwealth's 1997 and 2006 PM2.5 NAAQS 
infrastructure SIPs as they relate to section 110(a)(2)(D)(i)(II). 
See 78 FR 18241 (March 26, 2013). EPA had already conditionally 
approved the Commonwealth's infrastructure SIPs for the 1997 and 
2006 PM2.5 NAAQS for the PSD-related requirements related 
to sections 110(a)(2)(C) and (J) on October 3, 2012. See 77 FR 
60307.
    \19\ EPA has not taken action on the Commonwealth's 2008 lead 
Infrastructure SIP submission but will consider the action in a 
separate rulemaking.

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

[[Page 42750]]

    EPA took action to approve in part and conditionally approve in 
part portions of the Commonwealth's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS on October 3, 2012, March 7, 
2013, and March 26, 2013. See 77 FR 60307, 78 FR 14681, and 78 FR 
18241, respectively. EPA's conditional approval of the Commonwealth's 
PSD requirements for the section 110(a)(2) infrastructure SIPs 
committed Kentucky to adopt and submit to EPA within one year of 
publication of the final conditional approvals the required NSR 
permitting regulations promulgated in the NSR PM2.5 Rule and 
the PM2.5 PSD increments established in the 2010 
PM2.5 PSD Increment-SILs-SMC Rule. As stated above, the 
submission of the applicable portions of these rules into the Kentucky 
SIP is necessary to comply with the PSD-related requirements of 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) 
of the infrastructure SIP for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, and the 2008 8-hour ozone NAAQS.
    The Commonwealth's January 31, 2013 SIP revision satisfies the 
conditions listed in EPA's previous conditional approvals for the 
infrastructure submissions. Therefore, EPA is proposing action to 
convert its conditional approvals with respect to the PSD-related 
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 
110(a)(2)(J) for the 2008 8-hour ozone, and the 1997 annual and 2006 
24-hour PM2.5 NAAQS to full approval.

IV. What is EPA's analysis of the Commonwealth's SIP revision?

    The Commonwealth currently has a SIP-approved NSR program for new 
and modified stationary sources found at 401 KAR Chapter 51. KDAQ's PSD 
preconstruction regulations are found at 401 KAR Chapters 51:001 \20\ 
and 51:017 and apply to major stationary sources or modifications 
constructed in areas designated attainment or unclassifiable/attainment 
as required under part C of title I of the CAA with respect to the 
NAAQS. The Commonwealth's NNSR regulations are found at Chapter 51:052 
and apply to the construction and modification of any major stationary 
source of air pollution in or impacting upon a nonattainment area, as 
required by Part D of title I of the CAA. The Commonwealth's January 
31, 2013 SIP submission includes changes to Chapter 51 that adopt into 
the State's NSR permitting program provisions promulgated in the NSR 
PM2.5 Rule and the PSD increments established in the 
PM2.5 PSD Increment-SILs-SMC rule. These changes to the 
Commonwealth's regulations became state effective on December 7, 2012. 
EPA is proposing to approve the changes to Chapter 51 into the 
Commonwealth's SIP to be consistent with Federal NSR regulations (at 40 
CFR 51.166) and the CAA.
---------------------------------------------------------------------------

    \20\ The Commonwealth's 401 KAR Chapter 51:001 codifies 
definitions that apply to sources applying for construction permits 
in both attainment/unclassifiable and nonattainment areas.
---------------------------------------------------------------------------

A. NSR PM2.5 Implementation Rule

    The Commonwealth's January 31, 2013 SIP revision establishes that 
the Commonwealth's existing NSR permitting program requirements for PSD 
and NNSR apply to the PM2.5 NAAQS and certain precursors. 
Specifically, the SIP revision adopts the following NSR 
PM2.5 Rule PSD and NNSR provisions into the Kentucky SIP: 
(1) the requirement for PSD and NNSR permits to address directly 
emitted PM2.5 and precursor pollutants (sulfur dioxide 
(SO2) and nitrogen oxides (NOX) (as codified at 
40 CFR 51.165(a)(1)(xxxvii)(C) and 51.166(b)(49)); (2) the significant 
emission rates for direct PM2.5 and precursor pollutants 
(SO2 and NOx) (as codified at 40 CFR 51.165(a)(1)(x)(A) and 
51.166(b)(23)(i)); (3) the NNSR PM2.5 emission offsets (as 
codified at 51.165(9)(i)) and (4) the PSD and NNSR requirement that 
condensable PM10 and PM2.5 emissions be accounted 
for in PSD applicability determinations and in establishing emissions 
limitations for permitting (as codified at 40 CFR 
51.165(a)(1)(xxxvii)(D) and 51.166(b)(49)). For the reasons discussed 
below, the EPA is proposing to approve these revisions into the 
Commonwealth's SIP.
    As discussed above in section II, the DC Circuit in Natural 
Resources Defense Council v. EPA issued a decision that remanded the 
EPA's NSR PM2.5 Rule rule implementing the 1997 
PM2.5 NAAQS. Relevant here, the NSR PM2.5 Rule 
promulgated NSR requirements for implementation of PM2.5 in 
both nonattainment areas and attainment/unclassifiable areas. The court 
found that EPA erred in implementing the PM2.5 NAAQS in 
these rules solely pursuant to the general implementation provisions of 
subpart 1 of part D of title I of the Clean Air Act, rather than 
pursuant to the additional implementation provisions specific to 
particulate matter nonattainment areas in subpart 4. The Court ordered 
the EPA to ``repromulgate these rules pursuant to Subpart 4 consistent 
with this opinion.'' 706 F.3d at 437.
    On June 2, 2014, the EPA issued a final rulemaking that begins to 
address the remand. See 79 FR 31566. Upon its effective date, the final 
rule classifies all existing PM2.5 nonattainment areas as 
``Moderate'' nonattainment areas and sets a deadline of December 31, 
2014, for states to submit any SIP submissions, including NNSR SIPs, 
that may be necessary to satisfy the requirements of subpart 4, part D, 
title I of the CAA with respect to PM2.5 nonattainment 
areas.\21\
---------------------------------------------------------------------------

    \21\ EPA a deadline of December 31, 2014, for the states to 
submit any additional attainment related SIP elements that may be 
needed to meet the applicable requirements of subpart 4 for areas 
currently designated nonattainment for the 1997 and/or 2006 
PM2.5 NAAQS, and to submit SIPs addressing the NNSR 
requirements in subpart 4. EPA believes that this period provides a 
relatively brief but reasonable amount of time for states to 
ascertain whether and to what extent any additional submissions are 
needed for a particular 1997 or 2006 PM2.5 NAAQS 
nonattainment area, and to develop, adopt and submit any such SIPs.
---------------------------------------------------------------------------

    In a separate rulemaking process which will follow the June 2014 
rule, EPA is evaluating the requirements of subpart 4 as they pertain 
to NNSR for PM2.5 emissions. In particular, subpart 4 
includes section 189(e) of the CAA, which requires the control of major 
stationary sources of PM10 precursors ``except where the 
Administrator determines that such sources do not contribute 
significantly to PM10 levels which exceed the standard in 
the area.'' Under the court's decision in NRDC, section 189(e) of the 
CAA also applies to PM2.5.
    Kentucky's submission of revisions to its NNSR regulations at 
Chapters 51:001 and 51:052 identify SO2 as a 
PM2.5 precursor and NOX as a presumed 
PM2.5 precursor while volatile organic compounds (VOCs) and 
ammonia are presumed not to be PM2.5 precursors for a 
PM2.5 NAA in the Commonwealth. These revisions, although 
consistent with the 2008 NSR PM2.5 Rule as developed 
consistent with subpart 1 of the Act, may not contain the elements 
necessary to satisfy the CAA requirements when evaluated under the 
subpart 4 statutory requirements. In particular, Kentucky's submission 
does not include the regulation of VOCs and ammonia as PM2.5 
precursors, nor does it include a demonstration consistent with section 
189(e) showing that major sources of those precursor pollutants would 
not contribute significantly to PM2.5 levels exceeding the 
standard in the area. For these reasons, EPA cannot conclude at this 
time that this part of Kentucky's NNSR submission of revisions to 
Chapters 51:001 and 51:052 satisfies all of the requirements of subpart 
4 as they pertain to PM2.5 NNSR permitting.

[[Page 42751]]

    Although the revisions to Kentucky's NNSR regulations at Chapters 
51:001 and 51:052 may not contain all of the necessary elements to 
satisfy the CAA requirements when evaluated under the subpart 4 
provisions, the revisions themselves represent a strengthening of the 
currently-approved Kentucky NNSR SIP which does not address 
PM2.5 at all. As a result of the June 2, 2014 final rule, 
Kentucky would have until December 31, 2014, to make any additional 
submission necessary to address the requirements of subpart 4, 
including addressing the PM2.5 precursors of VOC and ammonia 
for NNSR permitting purposes. EPA is approving the NNSR revisions to 
Kentucky's NNSR permitting program without listing the absence of 
either the regulation or evaluation of VOCs and ammonia as 
PM2.5 precursors as a deficiency at this time.
    Finally, as subpart 4 includes requirements only pertinent to NAA, 
EPA does not consider the portions of the 2008 rule that address 
requirements for PM2.5 attainment and unclassifiable areas 
to be affected by the court's opinion in NRDC v. EPA. Moreover, EPA 
does not anticipate the need to revise any PSD requirements promulgated 
in the NSR PM2.5 Rule in order to comply with the court's 
decision. Accordingly, EPA's approval of Kentucky's PSD SIP and 
infrastructure SIP Elements (C), (D)(i)(II), or (J) with respect to the 
PSD requirements promulgated by the NSR PM2.5 Rule is not 
inconsistent with the court's opinion.

B. PM2.5 PSD Increment-SILs-SMC Rule Provisions

    The Commonwealth's January 31, 2013 SIP revision adopts into the 
Kentucky SIP at Chapter 51 the following PSD provisions promulgated in 
the PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments 
for PM2.5 annual and 24-hour NAAQS pursuant to section 
166(a) of the CAA; (2) PM2.5 SILs to be used as a screening 
tool to evaluate the impact a proposed major source or modification may 
have on the NAAQS or PSD increment; and (3) PM2.5 SMC, also 
used as a screening tool, to determine the level of data gathering 
required of a major source in support of its PSD permit application for 
PM2.5 emissions.
    Regarding the PM2.5 increments, the SIP revision changes 
include: 1) the PM2.5 increments as promulgated at 40 CFR 
51.166(c)(1) and (p)(4) (for Class I Variances); and 2) amendments to 
the terms ``major source baseline date'' (at 40 CFR 
51.166(b)(14)(i)(c)), ``minor source baseline date'' (including 
establishment of the ``trigger date'') (at section 51.166(b)(14)(ii)) 
and ``baseline area'' (as amended at 51.166(b)(15)(i)). These changes 
provide for the implementation of the PM2.5 PSD increments 
for the PM2.5 NAAQS in the state's PSD program. In today's 
action, EPA is proposing to approve the Commonwealth's January 31, 2013 
SIP revision to address the PM2.5 PSD increment provisions 
promulgated in the PM2.5 PSD Increments-SILs-SMC Rule. As 
discussed above, EPA is not taking action to approve into the 
Commonwealth's SIP the PM2.5 SILs and SMC as established in 
the PM2.5 PSD-Increment-SILs-SMC Rule due to the DC 
Circuit's January 22, 2013 decision to vacate and remand to EPA the 
SILs and vacate the SMCs. See Sierra Club v. EPA, 705 F.3d 458.
    EPA has made the preliminary determination to approve the 
aforementioned PSD permitting provisions promulgated in the 
PM2.5 PSD Increment-SILs-SMC Rule into the Kentucky SIP to 
implement the NSR program for the PM2.5 NAAQS.

C. Conversion of Conditional Approvals for the Commonwealth's 
Infrastructure SIP

    As discussed above in section III, Kentucky's January 31, 2013 SIP 
revision also satisfies the conditions listed in EPA's previous 
conditional approvals for the Commonwealth's 2008 8-hour ozone, and 
1997 annual and 2006 24-hour PM2.5 NAAQS infrastructure SIP 
submissions. Therefore, EPA is proposing action to convert its 
conditional approvals with respect to the PSD-related requirements of 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) to full 
approvals. Given that the Commonwealth's January 31, 2013 SIP revision 
fulfills the conditional approval requirements for conversion to a full 
approval, the conditional approval language at section 52.919(a)-(c) of 
40 CFR part 52, included in EPA's final conditional approvals published 
on October 3, 2012 (77 FR 60307), March 7, 2013 (78 FR 14681) and March 
26, 2013 (78 FR 18241) are no longer necessary. Thus, EPA is also 
proposing to remove the conditional approval language at 40 CR 52.919, 
contingent upon EPA's full approval of the Commonwealth's January 31, 
2013 SIP revision, to reflect that the infrastructure SIPs for the 
Commonwealth's 2008 8-hour ozone, and 1997 annual and 2006 24-hour 
PM2.5 NAAQS have been fully approved.

V. Proposed Action

    EPA is proposing to approve portions of the Commonwealth's January 
31, 2013 SIP revision adopting Federal regulations amended in the May 
16, 2008 NSR PM2.5 Rule and the October 20, 2010 
PM2.5 PSD Increment-SILs-SMC rule with the exception of the 
PM2.5 SILs and SMCs provisions. Final approval of the 
Commonwealth's January 31, 2013 SIP would also satisfy the requirements 
upon which EPA conditionally approved several Kentucky infrastructure 
requirements related to the 1997 and 2006 PM2.5 and the 2008 
8-hour Ozone NAAQS. As such, EPA is also proposing today, contingent 
upon full approval of the Commonwealth's January 31, 2013 SIP revision, 
to convert EPA's previous conditional approval of the Commonwealth's 
infrastructure requirements related to PSD requirements for the 
PM2.5 and ozone NAAQS to a full approval. EPA has made the 
preliminary determination that the Commonwealth's January 31, 2013 SIP 
revision, with regard to aforementioned proposed actions, are 
approvable because they are consistent with section 110 of the CAA and 
EPA regulations.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by Commonwealth law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);

[[Page 42752]]

     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the Commonwealth, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 14, 2014.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2014-17323 Filed 7-22-14; 8:45 am]
BILLING CODE 6560-50-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.