Approval and Promulgation of Implementation Plans; Kentucky Infrastructure Requirements for the 2008 Lead National Ambient Air Quality Standards, 45469-45477 [2015-18613]
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Federal Register / Vol. 80, No. 146 / Thursday, July 30, 2015 / Proposed Rules
2. Comments are due no later than
August 31, 2015. Reply comments are
due no later than September 15, 2015.
3. Pursuant to 39 U.S.C. 505, the
Commission appoints James F. Callow
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Register.
By the Commission.
Ruth Ann Abrams,
Acting Secretary.
[FR Doc. 2015–18666 Filed 7–29–15; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0443; FRL–9931–34–
Region 4]
Approval and Promulgation of
Implementation Plans; Kentucky
Infrastructure Requirements for the
2008 Lead National Ambient Air Quality
Standards
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
the July 17, 2012, State Implementation
Plan (SIP) submission, submitted by the
Commonwealth of Kentucky, Energy
and Environment Cabinet, Department
for Environmental Protection, through
the Kentucky Division for Air Quality
(KY DAQ) for inclusion into the
Kentucky SIP. This proposal pertains to
the Clean Air Act (CAA or the Act)
infrastructure requirements for the 2008
Lead national ambient air quality
standards (NAAQS). 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 submission.’’ KY
DAQ certified that the Kentucky SIP
contains provisions that ensure the 2008
Lead NAAQS is implemented, enforced,
and maintained in Kentucky. With the
exception of provisions pertaining to
prevention of significant deterioration
(PSD) permitting, EPA is proposing to
determine that Kentucky’s infrastructure
SIP submission, provided to EPA on
July 17, 2012, satisfies the required
infrastructure elements for the 2008
Lead NAAQS.
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SUMMARY:
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Written comments must be
received on or before August 31, 2015.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0443, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4–ARMS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2014–
0443,’’ Air Regulatory Management
Section (formerly the Regulatory
Development Section), Air Planning and
Implementation Branch (formerly the
Air Planning Branch) Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Lynorae
Benjamin, Chief, Air Regulatory
Management Section, Air Planning and
Implementation 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–2014–
0443. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through
www.regulations.gov or email,
information that you consider to be CBI
or otherwise protected. The
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‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
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to EPA without going through
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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
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the body of your comment and with any
disk or CD–ROM you submit. If EPA
DATES:
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you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
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about EPA’s public docket visit the EPA
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Docket: All documents in the
electronic docket are listed in the
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listed in the index, some information is
not publicly available, i.e., CBI or other
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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 Air Regulatory
Management Section, Air Planning and
Implementation 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: Zuri
Farngalo, Air Regulatory Management
Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9152.
Mr. Farngalo can be reached via
electronic mail at farngalo.zuri@
epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. What elements are required under sections
110(a)(1) and (2)?
III. What is EPA’s approach to the review of
infrastructure SIP submissions?
IV. What is EPA’s analysis of how Kentucky
addressed the elements of sections
110(a)(1) and (2) ‘‘infrastructure’’
provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On October 5, 1978, EPA promulgated
primary and secondary NAAQS for lead
under section 109 of the Act. See 43 FR
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46246. Both primary and secondary
standards were set at a level of 1.5
micrograms per cubic meter (mg/m3),
measured as lead in total suspended
particulate matter (Pb-TSP), not to be
exceeded by the maximum arithmetic
mean concentration averaged over a
calendar quarter. This standard was
based on the August 7, 1977 Air Quality
Criteria for Lead. On November 12, 2008
(75 FR 81126), EPA issued a final rule
to revise the primary and secondary
Lead NAAQS. The primary and
secondary Lead NAAQS were revised to
0.15 mg/m3. By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) are to be submitted by states within
three years after promulgation of a new
or revised NAAQS. Sections 110(a)(1)
and (2) require states to address basic
SIP requirements, including emissions
inventories, monitoring, and modeling
to assure attainment and maintenance of
the NAAQS. States were required to
submit such SIPs to EPA no later than
October 15, 2011, for the 2008 Lead
NAAQS.1
This action is proposing to approve
Kentucky’s infrastructure SIP
submission for the applicable
requirements of the 2008 Lead NAAQS,
with the exception of preconstruction
PSD permitting requirements for major
sources contained in sections
110(a)(2)(C), prong 3 of D(i), and (J). On
March 18, 2015, EPA approved
Kentucky’s July 17, 2012, infrastructure
SIP submission regarding the PSD
permitting requirements for major
sources of sections 110(a)(2)(C), prong 3
of D(i) and (J) for the 2008 Lead
NAAQS. See 80 FR 14019. Therefore,
EPA is not proposing any action today
pertaining to the PSD permitting
requirements for major sources of
sections 110(a)(2)(C), prong 3 of D(i),
and (J) for the 2008 Lead NAAQS. For
the aspects of Kentucky’s submittal
proposed for approval today, EPA notes
that the Agency is not approving any
specific rule, but rather proposing that
Kentucky’s already approved SIP meets
certain CAA requirements.
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1 In
these infrastructure SIP submissions states
generally certify evidence of compliance with
sections 110(a)(1) and (2) of the CAA through a
combination of state regulations and statutes, some
of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be
appropriate for demonstrating compliance with
sections 110(a) (1) and (2). Unless otherwise
indicated, the Title 15A regulations of the Kentucky
Administrative Regulation (‘‘KAR’’) cited
throughout this rulemaking have been approved
into Kentucky’s federally-approved SIP. The
Kentucky Revised Statutes (‘‘KRS’’) cited
throughout this rulemaking, however, are not
approved into the Kentucky SIP unless otherwise
indicated.
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II. What elements are required under
sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires
states to submit SIPs to provide for the
implementation, maintenance, and
enforcement of a new or revised
NAAQS within three years following
the promulgation of such NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a) imposes the
obligation upon states to make a SIP
submission to EPA for a new or revised
NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains. In the
case of the 2008 Lead NAAQS, states
typically have met the basic program
elements required in section 110(a)(2)
through earlier SIP submissions in
connection with the 1978 Lead NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
requirements related to a newly
established or revised NAAQS. As
mentioned above, these requirements
include SIP infrastructure elements
such as modeling, monitoring, and
emissions inventories that are designed
to assure attainment and maintenance of
the NAAQS. The requirements that are
the subject of this proposed rulemaking
are listed below 2 and in EPA’s October
14, 2011, memorandum entitled
‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements
Required Under Sections 110(a)(1) and
110(a)(2) for the 2008 Lead (Pb) National
Ambient Air Quality Standards
(NAAQS)’’ (2011 Lead Infrastructure SIP
Guidance).
• 110(a)(2)(A): Emission limits and
other control measures.
2 Two elements identified in section 110(a)(2) are
not governed by the three year submission deadline
of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
pursuant to section 172. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the
extent that subsection refers to a permit program as
required in part D Title I of the CAA, and (2)
submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements
of part D, Title I of the CAA. This proposed
rulemaking does not address infrastructure
elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of
110(a)(2)(C).
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• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement, prevention of significant
deterioration (PSD), and new source
review (NSR).3
• 110(a)(2)(D)(i): Interstate transport
provisions.
• 110(a)(2)(D)(ii): Interstate and
International Transport.
• 110(a)(2)(E): Adequate personnel,
funding, and authority.
• 110(a)(2)(F): Stationary source
monitoring and reporting.
• 110(a)(2)(G): Emergency episodes.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Nonattainment area
plan or plan revision under Part D.4
• 110(a)(2)(J): Consultation with
government officials, public
notification, PSD and visibility
protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
III. What is EPA’s approach to the
review of infrastructure SIP
submissions?
EPA is acting upon the SIP
submission from Kentucky that
addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2008 Lead NAAQS.
Pursuant to section 110(a)(1), states
must make SIP submissions ‘‘within 3
years (or such shorter period as the
Administrator may prescribe) after the
promulgation of a national primary
ambient air quality standard (or any
revision thereof),’’ and these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘each such plan’’
submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
3 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
4 As mentioned above, this element is not
relevant to this proposed rulemaking.
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submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review permit program
submissions to address the permit
requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.5 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the Act, which specifically
address nonattainment SIP
requirements.6 Section 110(a)(2)(I)
5 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
6 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
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pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
promulgated.7 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.8
Similarly, EPA interprets the CAA to
allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
given NAAQS without concurrent
action on the entire submission. For
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
7 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
8 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
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example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.9
Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.10
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
program required in part C of title I of
the CAA, because PSD does not apply
to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
9 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
10 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.11 EPA issued the
Lead Infrastructure SIP Guidance on
October 14, 2011.12 EPA developed this
document to provide states with up-todate guidance for the 2008 Lead
infrastructure SIPs. Within this
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions. The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2).
Significantly, EPA interprets sections
110(a)(1) and 110(a)(2) such that
11 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
12 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements Required
under Clean Air Act Sections 110(a)(1) and
110(a)(2) for the 2008 Lead (Pb) National Ambient
Air Quality Standards (NAAQS),’’ Memorandum
from Stephen D. Page, October 14, 2001.
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infrastructure SIP submissions need to
address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.13
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of sections 110(a)(1)
and 110(a)(2) because the CAA provides
other avenues and mechanisms to
address specific substantive deficiencies
in existing SIPs. These other statutory
tools allow EPA to take appropriately
tailored action, depending upon the
nature and severity of the alleged SIP
13 Although not intended to provide guidance for
purposes of infrastructure SIP submissions for the
2008 Lead NAAQS, EPA notes that, following the
2011 Lead Infrastructure SIP Guidance, EPA issued
the ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2).’’
Memorandum from Stephen D. Page, September 13,
2013. This 2013 guidance provides
recommendations for air agencies’ development and
the EPA’s review of infrastructure SIPs for the 2008
ozone primary and secondary NAAQS, the 2010
primary nitrogen dioxide (NO2) NAAQS, the 2010
primary sulfur dioxide (SO2) NAAQS, and the 2012
primary fine particulate matter (PM2.5) NAAQS, as
well as infrastructure SIPs for new or revised
NAAQS promulgated in the future.
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deficiency. Section 110(k)(5) authorizes
EPA to issue a ‘‘SIP call’’ whenever the
Agency determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.14 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.15
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.16
IV. What is EPA’s analysis of how
Kentucky addressed the elements of
sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
The Kentucky infrastructure
submission addresses the provisions of
sections 110(a)(1) and (2) as described
below.
1. 110(a)(2)(A) Emission limits and
other control measures: There are
several provisions within Kentucky’s
regulations that provide KY DAQ with
the necessary authority to adopt and
14 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
15 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
16 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (Jan. 26, 2011)
(final disapproval of such provisions).
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enforce air quality controls, which
include enforceable emission
limitations and other control measures.
Some sections but not all of the
following chapters,17 provide the state
the necessary authority; 401 KAR
Chapter 50 General Administrative
Procedures 401 KAR 51 Attainment and
Maintenance of the National Ambient
Air Quality Standards, 401 KAR 52
Permits, Registrations, and Prohibitory
Rules, and 401 KAR 53 Ambient Air
Quality. EPA has made the preliminary
determination that these provisions and
Kentucky’s practices are adequate to
protect the 2008 Lead NAAQS in the
Commonwealth.
In this action, EPA is not proposing to
approve or disapprove any existing
Kentucky provisions with regard to
excess emissions during startup,
shutdown and malfunction (SSM) of
operations at a facility. EPA believes
that a number of states have SSM
provisions which are contrary to the
CAA and existing EPA guidance, ‘‘State
Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions,
Startup, and Shutdown’’ (September 20,
1999), and the Agency is addressing
such state regulations in a separate
action.18 In the meantime, EPA
encourages any state having a deficient
SSM provision to take steps to correct
it as soon as possible.
Additionally, in this action, EPA is
not proposing to approve or disapprove
any existing State rules with regard to
director’s discretion or variance
provisions. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision which
is contrary to the CAA and EPA
guidance to take steps to correct the
deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality
monitoring/data system: SIPs are
required to provide for the
establishment and operation of ambient
air quality monitors; the compilation
and analysis of ambient air quality data;
and the submission of these data to EPA
17 There are various chapters from the Kentucky
submittal cited to throughout this document as
showing that Kentucky meets the infrastructure
requirements. To see exactly what sections
Kentucky cited in each chapter, refer to the
submittal which can be accessed at
www.regulations.gov using Docket ID No. EPA–
R04–OAR–2014–0443.
18 On May 22, 2015, the EPA Administrator
signed a final action entitled, ‘‘State
Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA’s SSM
Policy Applicable to SIPs; Findings of Substantial
Inadequacy; and SIP Calls to Amend Provisions
Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction.’’ The
prepublication version of this rule is available at
https://www.epa.gov/airquality/urbanair/sipstatus/
emissions.html.
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upon request. 401 KAR 50:050
Monitoring and KRS 224.10–100(22)
along with the Kentucky Annual
Monitoring Network Plan, provide for
an ambient air quality monitoring
system in the State, which includes the
monitoring of lead at appropriate
locations throughout the state using the
EPA approved Federal Reference
Method or equivalent monitors. 401
KAR Chapter 50 General Administrative
Procedures also provides Kentucky with
the statutory authority to ‘‘determine by
means of field sampling and other
studies, including the examination of
available data collected by any local,
State or federal agency or any person,
the degree of air contamination and air
pollution in the State and the several
areas of the State.’’ The monitors are all
part of the Air Quality Systems (AQS)
and identification numbers. Annually,
States develop and submit to EPA for
approval statewide ambient monitoring
network plans consistent with the
requirements of 40 CFR parts 50, 53,
and 58. The annual network plan
involves an evaluation of any proposed
changes to the monitoring network,
includes the annual ambient monitoring
network design plan and a certified
evaluation of the agency’s ambient
monitors and auxiliary support
equipment.19 The latest monitoring
network plan for Kentucky was
submitted to EPA on June 30, 2014, and
on October 30, 2014, EPA approved this
plan. Kentucky’s approved monitoring
network plan can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2014–0443. EPA
has made the preliminary determination
that Kentucky’s SIP and practices are
adequate for the ambient air quality
monitoring and data system related to
the 2008 Lead NAAQS.
3. 110(a)(2)(C) Program for
enforcement, PSD, and NSR: This
element consists of three sub-elements;
enforcement, state-wide regulation of
new and modified minor sources and
minor modifications of major sources;
and preconstruction permitting of major
sources and major modifications in
areas designated attainment or
unclassifiable for the subject NAAQS as
required by CAA title I part C (i.e., the
major source PSD program). To meet
these obligations, Kentucky cited
regulations 401 KAR 50:060. The
enforcement aspect of 110(a)(2)(C)
provides for enforcement of the terms
and conditions of permits and
compliance schedules, and 401 KAR 52
19 On occasion, proposed changes to the
monitoring network are evaluated outside of the
network plan approval process in accordance with
40 CFR part 58.
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Permits, Registrations, and Prohibitory
Rules, which pertain to the construction
of new stationary sources or any project
at an existing stationary source. In this
action, EPA is only proposing to
approve the enforcement and the
regulation of minor sources and minor
modifications aspects of Kentucky’s
section 110(a)(2)(C) infrastructure SIP
submission.
Enforcement: KY DAQ’s abovedescribed, SIP-approved regulations
provide for enforcement of lead
emission limits and control measures
and construction permitting for new or
modified stationary sources.
Preconstruction PSD Permitting for
Major Sources: With respect to
Kentucky’s July 17, 2012, infrastructure
SIP submission related to the
preconstruction PSD permitting
requirements for major sources of
section 110(a)(2)(C), EPA took final
action to approve these provisions for
the 2008 Lead NAAQS on March 18,
2015. See 80 FR 14019.
Regulation of minor sources and
modifications: Section 110(a)(2)(C) also
requires the SIP to include provisions
that govern the minor source preconstruction program that regulates
emissions of the 2008 Lead NAAQS.
Regulation 401 KAR 52:030 governs the
preconstruction permitting of
modifications and construction of minor
stationary sources.
EPA has made the preliminary
determination that Kentucky’s SIP and
practices are adequate for enforcement
of control measures and regulation of
minor sources and modifications related
to the 2008 Lead NAAQS.
4. 110(a)(2)(D)(i) and (ii) Interstate
and International transport provisions:
Section 110(a)(2)(D)(i) has two
components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these
components have two subparts resulting
in four distinct components, commonly
referred to as ‘‘prongs,’’ that must be
addressed in infrastructure SIP
submissions. The first two prongs,
which are codified in section
110(a)(2)(D)(i)(I), are provisions that
prohibit any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (‘‘prong 1’’), and interfering with
maintenance of the NAAQS in another
state (‘‘prong 2’’). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
interfering with measures required to
prevent significant deterioration of air
quality in another state (‘‘prong 3’’), or
to protect visibility in another state
(‘‘prong 4’’). Section 110(a)(2)(D)(ii)
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requires SIPs to include provisions
insuring compliance with sections 115
and 126 of the Act, relating to interstate
and international pollution abatement.
110(a)(2)(D)(i)(I) prongs 1 and 2:
Section 110(a)(2)(D)(i) requires
infrastructure SIP submissions to
include provisions prohibiting any
source or other type of emissions
activity in one state from contributing
significantly to nonattainment in, or
interfering with maintenance of the
NAAQS in another state. The physical
properties of lead prevent lead
emissions from experiencing that same
travel or formation phenomena as PM2.5
and ozone for interstate transport as
outlined in prongs 1 and 2. More
specifically, there is a sharp decrease in
the lead concentrations, at least in the
coarse fraction, as the distance from a
lead source increases. EPA believes that
the requirements of prongs 1 and 2 can
be satisfied through a state’s assessment
as to whether a lead source located
within its State in close proximity to a
state border has emissions that
contribute significantly to the
nonattainment or interfere with
maintenance of the NAAQS in the
neighboring state. For example, EPA’s
experience suggests that sources located
more than two miles from the state
border or that sources that emit less
than 0.5 tons per year (tpy) generally
appear unlikely to contribute
significantly to the nonattainment in
another state. Kentucky has one lead
source that has emissions which exceed
0.5 tpy, however, the source is located
about 50 miles from the border.20 As a
result of its distance to the border, EPA
believes it is unlikely to contribute
significantly to the nonattainment or
interfere with maintenance of the
NAAQS in another state. Therefore, EPA
has made the preliminary determination
that Kentucky’s SIP meets the
requirements of section
110(a)(2)(D)(i)(I).
110(a)(2)(D)(i)(II) Prong 3: With
respect to Kentucky’s July 17, 2012
infrastructure SIP submission related to
the interstate transport requirements for
PSD of prong 3 of section 110(a)(2)(D)(i),
EPA took final action to approve this
portion of Kentucky’s submission for
the 2008 Lead NAAQS on March 18,
2015. See 80 FR 14019.
110(a)(2)(D)(i)(II) prong 4: With regard
to section 110(a)(2)(D)(i)(II), the
visibility sub-element, referred to as
prong 4, significant visibility impacts
from stationary source lead emissions
20 The one facility in Kentucky that has lead
emissions greater than 0.5 tpy is the EnerSys facility
located at 761 Eastern Bypass Richmond, KY 40475.
The lead emissions from this facility are 0.55 tpy.
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are expected to be limited to short
distances from the source. The 2011
Lead Infrastructure SIP Guidance notes
that the lead constituent of PM would
likely not travel far enough to affect
Class 1 areas and that the visibility
provisions of the CAA do not directly
regulate lead. Lead stationary sources in
Kentucky are located distances from
Class I areas such that visibility impacts
are negligible. Accordingly, EPA has
preliminarily determined that the
Kentucky SIP meets the relevant
visibility requirements of prong 4 of
section 110(a)(2)(D)(i).
110(a)(2)(D)(ii) Interstate and
International transport provisions: With
regard to section 110(a)(2)(D)(ii), section
6 of KAR Chapter 52:100, Public,
Affected State, and US EPA Review,
outlines how Kentucky will notify
neighboring states of potential impacts
from new or modified sources. Further,
EPA is unaware of any pending
obligations for the Commonwealth
pursuant to sections 115 or 126 of the
CAA. EPA has made the preliminary
determination that Kentucky DAQ’s SIP
and practices are adequate for insuring
compliance with the applicable
requirements relating to interstate and
international pollution abatement for
the 2008 Lead NAAQS. Accordingly,
EPA is proposing to approve Kentucky’s
infrastructure SIP submission with
respect to section 110(a)(2)(D)(ii).
5. 110(a)(2)(E) Adequate personnel,
funding, and authority: Section
110(a)(2)(E) requires that each
implementation plan provide (i)
necessary assurances that the State will
have adequate personnel, funding, and
authority under state law to carry out its
implementation plan, (ii) that the State
comply with the requirements
respecting State Boards pursuant to
section 128 of the Act, and (iii)
necessary assurances that, where the
State has relied on a local or regional
government, agency, or instrumentality
for the implementation of any plan
provision, the State has responsibility
for ensuring adequate implementation
of such plan provisions. EPA is
proposing to approve Kentucky’s SIP as
meeting the requirements of subelements 110(a)(2)(E)(i), (ii) and (iii).
EPA’s rationale for this proposal
respecting sub-element (i), (ii),and(iii) is
described in turn below.
To satisfy the requirements of sections
110(a)(2)(E)(i) and (iii), Kentucky’s
infrastructure SIP submission cites
regulation 401 KAR 50:038 Air
Emissions Fee, which provides the
assessment fees necessary to fund the
state Title V permit program. EPA
submitted a letter to Kentucky on
February 27, 2014, outlining 105 grant
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commitments and the current status of
these commitments for fiscal year 2013.
The letter EPA submitted to Kentucky
can be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2014–0443. Annually, states update
these grant commitments based on
current SIP requirements, air quality
planning, and applicable requirements
related to the NAAQS. Kentucky
satisfactorily met all commitments
agreed to in the Air Planning Agreement
for fiscal year 2013, therefore
Kentucky’s grants were finalized and
closed out.
Section 110(a)(2)(E)(ii) requires that
Kentucky comply with section 128 of
the CAA. Section 128 requires that: (1)
The majority of members of the state
board or body which approves permits
or enforcement orders represent the
public interest and do not derive any
significant portion of their income from
persons subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such board or body, or the head of an
executive agency with similar, powers
be adequately disclosed.
KY DAQ’s infrastructure SIP
submission adequately demonstrated
that Kentucky’s SIP meets the
applicable section 128 requirements
pursuant to section 110(a)(2)(E)(ii).
For purposes of section 128(a)(1),
Kentucky has no boards or bodies with
authority over air pollution permits or
enforcement actions. Such matters are
instead handled by the Director of the
KY DAQ. As such, a ‘‘board or body’’ is
not responsible for approving permits or
enforcement orders in Kentucky, and
the requirements of section 128(a)(1) are
not applicable. For purposes of section
128(a)(2), Kentucky’s SIP has been
updated. On October 3, 2012, EPA
finalized approval of KY DAQ’s July 17,
2012, SIP revision requesting
incorporation of KRS Chapters 11A.020,
11A.030, 11A.040 and Chapters 224.10–
020 and 224.10–100 into the SIP to
address sub-element 110(a)(2)(E)(ii). See
77 FR 60307. With the incorporation of
these regulations into the Kentucky SIP,
EPA has made the preliminary
determination that the Commonwealth
has adequately addressed the
requirements of section 128(a)(2), and
accordingly has met the infrastructure
SIP requirements of section
110(a)(2)(E)(ii). Therefore, EPA is
proposing to approve KY DAQ’s SIP as
meeting the requirements of subelements 110(a)(2)(E)(i), (ii) and (iii).
6. 110(a)(2)(F) Stationary source
monitoring system: KY DAQ’s
infrastructure SIP submission describes
how the State establishes requirements
for emissions compliance testing and
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utilizes emissions sampling and
analysis. It further describes how the
State ensures the quality of its data
through observing emissions and
monitoring operations. KY DAQ uses
these data to track progress towards
maintaining the NAAQS, develop
control and maintenance strategies,
identify sources and general emission
levels, and determine compliance with
emission regulations and additional
EPA requirements. KY DAQ meets these
requirements through KY DAQ 401 KAR
50:050 Monitoring. These requirements
are incorporated into the SIP at Chapter
50 General Administrative Procedures
allows for the use of credible evidence
in the event that the KY DAQ Director
has evidence that a source is violating
an emission standard or permit
condition, the Director may require that
the owner or operator of any source
submit to the Director any information
necessary to determine the compliance
status of the source. In addition, EPA is
unaware of any provision preventing the
use of credible evidence in the
Kentucky SIP.
In addition, Kentucky is required to
submit emissions data to EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is EPA’s
central repository for air emissions data.
EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data. See 73 FR 76539. The
AERR shortened the time states had to
report emissions data from 17 to 12
months, giving states one calendar year
to submit emissions data. All states are
required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through EPA’s online
Emissions Inventory System. States
report emissions data for the six criteria
pollutants and the precursors that form
them—NOX, sulfur dioxide, ammonia,
lead, carbon monoxide, particulate
matter, and volatile organic compounds.
Many states also voluntarily report
emissions of hazardous air pollutants.
Kentucky made its latest update to the
2013 NEI on November 11, 2014. EPA
compiles the emissions data,
supplementing it where necessary, and
releases it to the general public through
the Web site https://www.epa.gov/ttn/
chief/eiinformation.html. EPA has made
the preliminary determination that
Kentucky’s SIP and practices are
adequate for the stationary source
monitoring systems obligations for the
2008 Lead NAAQS.
7. 110(a)(2)(G) Emergency episodes:
This section requires that states
demonstrate authority comparable with
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section 303 of the CAA and adequate
contingency plans to implement such
authority. Kentucky’s infrastructure SIP
submission cites 401 KAR Chapter 55
Emergency Episodes as identifying air
pollution emergency episodes and
preplanned abatement strategies, and
providing the means to implement
emergency air pollution episode
measures. Conditions justifying the
proclamation of an air pollution alert,
air pollution warning, or air pollution
emergency shall be deemed to exist
whenever the cabinet determines that
the accumulation of air contaminants in
any place is attaining or has attained
levels which could, if such levels are
sustained or exceeded, present a threat
to the health of the public. The intent
of this administrative regulation is to
provide for the curtailment or reduction
of processes or operations which emit
an air contaminant or an air
contaminant precursor whose criteria
has been reached and are located in the
affected area for which an episode level
has been declared. This rule defines
what an episodic criteria is and the
procedure for an episode declaration. In
addition, KRS 224.10–410 provides:
‘‘Notwithstanding any inconsistent
provisions of law, whenever the
Secretary of the Energy and
Environment Cabinet finds, after
investigation, that any person or
combination of persons is causing,
engaging in or maintaining a condition
or activity which, in his judgment,
presents a danger to the health or
welfare of the people of the state or
results in or is likely to result in damage
to natural resources, and relates to the
prevention and abatement powers of the
secretary and it therefore appears to be
prejudicial to the interests of the people
of the state to delay action until an
opportunity for a hearing can be
provided, the secretary may, without
prior hearing, order such person or
combination of persons by notice, in
writing wherever practicable or in such
other form as in the secretary’s
judgment will reasonably notify such
person or combination of persons whose
practices are intended to be proscribed,
to discontinue, abate or alleviate such
condition or activity, and thereupon
such person or combination of persons
shall immediately discontinue, abate or
alleviate such condition or activity. As
soon as possible thereafter, not to
exceed ten (10) days, the secretary shall
provide the person or combination of
persons an opportunity to be heard and
to present proof that such condition or
activity does not violate the provisions
of this section. The secretary shall adopt
any other appropriate rules and
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regulations prescribing the procedure to
be followed in the issuance of such
orders. The secretary shall immediately
notify the Governor of any order issued
pursuant to this section.’’ EPA has made
the preliminary determination that
Kentucky’s SIP and practices are
adequate to satisfy the emergency
powers obligations of the 2008 Lead
NAAQS.
8. 110(a)(2)(H) Future SIP revisions:
KY DAQ is responsible for adopting air
quality rules and revising SIPs as
needed to attain or maintain the
NAAQS in Kentucky. 401 KAR Chapter
53 Ambient Air Quality and Chapter 51
Attainment and Maintenance of the
National Ambient Air Quality
Standards grant KY DAQ the broad
authority to implement the CAA, and as
such, provides KY DAQ the authority to
prepare and develop, after proper study,
a comprehensive plan for the prevention
of air pollution. These statutes also
provide KY DAQ the ability and
authority to respond to calls for SIP
revisions, and has provided a number of
SIP revisions over the years for
implementation of the NAAQS.
Accordingly, EPA has made the
preliminary determination that
Kentucky’s SIP and practices adequately
demonstrate a commitment to provide
future SIP revisions related to the 2008
Lead NAAQS, when necessary.
9. 110(a)(2)(J): EPA is proposing to
approve Kentucky’s infrastructure SIP
for the 2008 Lead NAAQS with respect
to the general requirement in section
110(a)(2)(J) to include a program in the
SIP that provides for meeting the
applicable consultation requirements of
section 121, the public notification
requirements of section 127, and
visibility protection. With respect to
Kentucky’s infrastructure SIP
submission related to the
preconstruction PSD permitting
requirements of section 110(a)(2)(J), EPA
took final action to approve Kentucky’s
July 17, 2012, 2008 Lead infrastructure
SIP for these requirements on March 18,
2015. See 80 FR 14019. EPA’s rationale
for applicable consultation requirements
of section 121, the public notification
requirements of section 127, and
visibility is described below.
Consultation with government
officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to
provide a process for consultation with
local governments, designated
organizations and federal land managers
(FLMs) carrying out NAAQS
implementation requirements pursuant
to section 121 relative to consultation.
401 KAR 52 Permits, Registrations, and
Prohibitory Rules along with the
Regional Haze SIP Plan (which allows
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for consultation between appropriate
state, local, and tribal air pollution
control agencies as well as the
corresponding FLMs), provide for
consultation with government officials
whose jurisdictions might be affected by
SIP development activities.
Implementation of transportation
conformity as outlined in the
consultation procedures requires KY
DAQ to consult with federal, state and
local transportation and air quality
agency officials on the development of
motor vehicle emissions budgets. EPA
has made the preliminary determination
that Kentucky’s SIP and practices
adequately demonstrate that the State
meets applicable requirements related to
consultation with government officials
for the 2008 Lead NAAQS when
necessary.
Public notification (127 public
notification): To meet the public
notification requirements of section
110(a)(2)(J), statutes 401 KAR 51
Attainment and Maintenance of the
National Ambient Air Quality
Standards and 401 KAR 52 Permits,
Registrations provides Kentucky with
the authority to declare an emergency
and notify the public accordingly when
it finds t a generalized condition of
water or air pollution which is causing
imminent danger to the health or safety
of the public. For example, 401 KAR
52:100. Public, Affected State, and U.S.
EPA Review of the Kentucky SIP process
affords the public an opportunity to
participate in regulatory and other
efforts to improve air quality by holding
public hearings for interested persons to
appear and submit written or oral
comments. EPA also notes that KY DAQ
maintains a Web site that provides the
public with notice of the health hazards
associated with Lead NAAQS
exceedances, measures the public can
take to help prevent such exceedances,
and the ways in which the public can
participate in the regulatory process.
See https://air.ky.gov/Pages/default.aspx.
EPA has made the preliminary
determination that Kentucky’s SIP and
practices adequately demonstrate the
State’s ability to provide public
notification related to the 2008 Lead
NAAQS when necessary.
Visibility Protection: The 2011 Lead
Infrastructure SIP Guidance notes that
EPA does not generally treat the
visibility protection aspects of section
110(a)(2)(J) as applicable for purposes of
the infrastructure SIP approval process.
EPA recognizes that states are subject to
visibility protection and regional haze
program requirements under Part C of
the Act (which includes sections 169A
and 169B). However, in the event of the
establishment of a new primary
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NAAQS, the visibility protection and
regional haze program requirements
under part C do not change. EPA thus
does not expect states to address
visibility in lead infrastructure
submittals. Thus, EPA concludes there
are no new applicable visibility
protection obligations under section
110(a)(2)(J) as a result of the 2008 Lead
NAAQS. Accordingly, EPA is proposing
to approve section 110(a)(2)(J) of KY
DAQ’s infrastructure SIP submission
with respect to visibility.
EPA has made the preliminary
determination that Kentucky’s SIP and
practices adequately demonstrate the
State’s ability to meet the requirements
of section 110(a)(2)(J) to include a
program in the SIP that provides for
meeting the applicable requirements of
section 121 (consultation), section 127
public notification, and visibility
protection.
10. 110(a)(2)(K) Air quality modeling/
data: Section 110(a)(2)(K) of the CAA
requires that SIPs provide for
performing air quality modeling so that
effects on air quality of emissions from
NAAQS pollutants can be predicted and
submission of such data to the USEPA
can be made. 401 KAR Chapter 50
General Administrative Procedures
require that air modeling be conducted
in accordance with 40 CFR part 51,
appendix W ‘‘Guideline on Air Quality
Models.’’ These regulations demonstrate
that Kentucky has the authority to
perform air quality modeling and to
provide relevant data for the purpose of
predicting the effect on ambient air
quality of the 2008 Lead NAAQS.
Additionally, Kentucky supports a
regional effort to coordinate the
development of emissions inventories
and conduct regional modeling for
several NAAQS, including the 2008
Lead NAAQS, for the Southeastern
states. Taken as a whole, Kentucky’s air
quality regulations demonstrate that KY
DAQ has the authority to provide
relevant data for the purpose of
predicting the effect on ambient air
quality of the 2008 Lead NAAQS. EPA
has made the preliminary determination
that Kentucky’s SIP and practices
adequately demonstrate the State’s
ability to provide for air quality and
modeling, along with analysis of the
associated data, related to the 2008 Lead
NAAQS when necessary.
11. 110(a)(2)(L) Permitting fees: This
element necessitates that the SIP require
the owner or operator of each major
stationary source to pay to the
permitting authority, as a condition of
any permit required under the CAA, a
fee sufficient to cover (i) the reasonable
costs of reviewing and acting upon any
application for such a permit, and (ii) if
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
the owner or operator receives a permit
for such source, the reasonable costs of
implementing and enforcing the terms
and conditions of any such permit (not
including any court costs or other costs
associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under title V.
To satisfy these requirements,
Kentucky Regulation 401 KAR 50:038
Air Emissions Fee, and the Title V
Operating Permit Program
Implementation Protocol dated August
13, 1999, is how KY DAQ collects
adequate emission fees related to the
cost of administering the air quality
program mandated under Title V of the
CAA Amendments of 1990 (Public Law
101–549, as amended). Funds collected
in support of the program are used in
support of review, implementation, and
enforcement of PSD/NNSR permits. The
Title V program takes over for the PSD/
NNSR permit once the source begin
operating. EPA has made the
preliminary determination that
Kentucky’s practices adequately provide
for permitting fees related to the 2008
Lead NAAQS, when necessary.
12. 110(a)(2)(M) Consultation/
participation by affected local entities:
This element requires states to provide
for consultation and participation in SIP
development by local political
subdivisions affected by the SIP. 401
KAR 52 Permits, Registrations authorize
and require KY DAQ to advise, consult,
cooperate and enter into agreements
with other agencies of the state, the
Federal Government, other states,
interstate agencies, groups, political
subdivisions, and industries affected by
the provisions of this act, rules, or
policies of the department. EPA has
made the preliminary determination
that Kentucky’s SIP and practices
adequately demonstrate consultation
with affected local entities related to the
2008 Lead NAAQS, when necessary.
V. Proposed Action
With the exception of the PSD
permitting requirements for major
sources contained in sections
110(a)(2)(C), prong 3 of (D)(i), and (J),
EPA is proposing to approve that KY
DAQ’s infrastructure SIP submission,
submitted July 17, 2012, for the 2008
Lead NAAQS meets the above described
infrastructure SIP requirements. EPA is
proposing to approve these portions of
Kentucky’s infrastructure SIP
submission for the 2008 Lead NAAQS
because these aspects of the submission
are consistent with section 110 of the
CAA.
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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 state law. For
that reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
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, the Kentucky SIP is not
approved to apply on any Indian
reservation land or in any other area
where EPA or an Indian tribe has
demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
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13:52 Jul 29, 2015
Jkt 235001
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it 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,
Lead, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 14, 2015.
Heather Mc Teer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015–18613 Filed 7–29–15; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2015–0323; FRL–9931–15–
Region 10]
Approval and Promulgation of
Implementation Plans; Oregon: Grants
Pass Second 10-Year PM10 Limited
Maintenance Plan
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
the limited maintenance plan submitted
by the State of Oregon on April 22,
2015, for the Grants Pass maintenance
area for particulate matter with an
aerodynamic diameter less than or equal
to a nominal 10 micrometers (PM10).
The plan explains how this area will
continue to meet the PM10 National
Ambient Air Quality Standard for a
second 10-year period through 2025.
DATES: Comments must be received on
or before August 31, 2015.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2015–0323, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov: Follow the on-line
instructions for submitting comments.
• Email: edmondson.lucy@epa.gov.
• Mail: Lucy Edmondson, U.S. EPA
Region 10, Office of Air, Waste and
Toxics, AWT–150, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101
• Hand Delivery/Courier: U.S. EPA
Region 10, 1200 Sixth Avenue, Suite
900, Seattle, WA 98101. Attention: Lucy
Edmondson, Office of Air, Waste and
Toxics, AWT–150. Such deliveries are
only accepted during normal hours of
SUMMARY:
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Fmt 4702
Sfmt 4702
45477
operation, and special arrangements
should be made for deliveries of boxed
information.
Please see the direct final rule which is
located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
FOR FURTHER INFORMATION CONTACT:
Lucy Edmondson at telephone number:
(360) 753–9082, email address:
edmondson.lucy@epa.gov, or the above
EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: For
further information, please see the
direct final action, of the same title,
which is located in the Rules section of
this Federal Register. The EPA is
simultaneously approving the State’s
SIP revision as a direct final rule
without prior proposal because the EPA
views this as a noncontroversial SIP
revision and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the preamble to
the direct final rule. If the EPA receives
no adverse comments, the EPA will not
take further action on this proposed
rule.
If the EPA receives adverse
comments, the EPA will withdraw the
direct final rule and it will not take
effect. The EPA will address all public
comments in a subsequent final rule
based on this proposed rule. The EPA
will not institute a second comment
period on this action. Any parties
interested in commenting on this action
should do so at this time. Please note
that if we receive adverse comment on
an amendment, paragraph, or section of
this rule and if that provision may be
severed from the remainder of the rule,
the EPA may adopt as final those
provisions of the rule that are not the
subject of an adverse comment.
Dated: July 8, 2015.
Dennis J. McLerran,
Regional Administrator, Region 10.
[FR Doc. 2015–18349 Filed 7–29–15; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R09–OAR–2015–0279; FRL–9930–98–
Region 9]
Air Plan Approval; California;
Mammoth Lakes; Redesignation
Request; PM10 Maintenance Plan
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
E:\FR\FM\30JYP1.SGM
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]]>Agencies
[Federal Register Volume 80, Number 146 (Thursday, July 30, 2015)]
[Proposed Rules]
[Pages 45469-45477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18613]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0443; FRL-9931-34-Region 4]
Approval and Promulgation of Implementation Plans; Kentucky
Infrastructure Requirements for the 2008 Lead National Ambient Air
Quality Standards
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the July 17, 2012, State Implementation Plan (SIP) submission,
submitted by the Commonwealth of Kentucky, Energy and Environment
Cabinet, Department for Environmental Protection, through the Kentucky
Division for Air Quality (KY DAQ) for inclusion into the Kentucky SIP.
This proposal pertains to the Clean Air Act (CAA or the Act)
infrastructure requirements for the 2008 Lead national ambient air
quality standards (NAAQS). 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 submission.'' KY DAQ certified that the Kentucky
SIP contains provisions that ensure the 2008 Lead NAAQS is implemented,
enforced, and maintained in Kentucky. With the exception of provisions
pertaining to prevention of significant deterioration (PSD) permitting,
EPA is proposing to determine that Kentucky's infrastructure SIP
submission, provided to EPA on July 17, 2012, satisfies the required
infrastructure elements for the 2008 Lead NAAQS.
DATES: Written comments must be received on or before August 31, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0443, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: R4-ARMS@epa.gov.
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2014-0443,'' Air Regulatory Management
Section (formerly the Regulatory Development Section), Air Planning and
Implementation Branch (formerly the Air Planning Branch) Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960.
5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air
Regulatory Management Section, Air Planning and Implementation 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-
2014-0443. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Air Regulatory Management Section, Air Planning and
Implementation 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: Zuri Farngalo, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. The telephone number is (404) 562-9152. Mr. Farngalo can be
reached via electronic mail at farngalo.zuri@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP
submissions?
IV. What is EPA's analysis of how Kentucky addressed the elements of
sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On October 5, 1978, EPA promulgated primary and secondary NAAQS for
lead under section 109 of the Act. See 43 FR
[[Page 45470]]
46246. Both primary and secondary standards were set at a level of 1.5
micrograms per cubic meter ([mu]g/m\3\), measured as lead in total
suspended particulate matter (Pb-TSP), not to be exceeded by the
maximum arithmetic mean concentration averaged over a calendar quarter.
This standard was based on the August 7, 1977 Air Quality Criteria for
Lead. On November 12, 2008 (75 FR 81126), EPA issued a final rule to
revise the primary and secondary Lead NAAQS. The primary and secondary
Lead NAAQS were revised to 0.15 [mu]g/m\3\. By statute, SIPs meeting
the requirements of sections 110(a)(1) and (2) are to be submitted by
states within three years after promulgation of a new or revised NAAQS.
Sections 110(a)(1) and (2) require states to address basic SIP
requirements, including emissions inventories, monitoring, and modeling
to assure attainment and maintenance of the NAAQS. States were required
to submit such SIPs to EPA no later than October 15, 2011, for the 2008
Lead NAAQS.\1\
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\1\ In these infrastructure SIP submissions states generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a) (1) and (2). Unless otherwise indicated, the Title 15A
regulations of the Kentucky Administrative Regulation (``KAR'')
cited throughout this rulemaking have been approved into Kentucky's
federally-approved SIP. The Kentucky Revised Statutes (``KRS'')
cited throughout this rulemaking, however, are not approved into the
Kentucky SIP unless otherwise indicated.
---------------------------------------------------------------------------
This action is proposing to approve Kentucky's infrastructure SIP
submission for the applicable requirements of the 2008 Lead NAAQS, with
the exception of preconstruction PSD permitting requirements for major
sources contained in sections 110(a)(2)(C), prong 3 of D(i), and (J).
On March 18, 2015, EPA approved Kentucky's July 17, 2012,
infrastructure SIP submission regarding the PSD permitting requirements
for major sources of sections 110(a)(2)(C), prong 3 of D(i) and (J) for
the 2008 Lead NAAQS. See 80 FR 14019. Therefore, EPA is not proposing
any action today pertaining to the PSD permitting requirements for
major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for
the 2008 Lead NAAQS. For the aspects of Kentucky's submittal proposed
for approval today, EPA notes that the Agency is not approving any
specific rule, but rather proposing that Kentucky's already approved
SIP meets certain CAA requirements.
II. What elements are required under sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 2008 Lead NAAQS, states typically have met
the basic program elements required in section 110(a)(2) through
earlier SIP submissions in connection with the 1978 Lead NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below \2\ and in EPA's
October 14, 2011, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements Required Under Sections
110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air
Quality Standards (NAAQS)'' (2011 Lead Infrastructure SIP Guidance).
---------------------------------------------------------------------------
\2\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA, and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
---------------------------------------------------------------------------
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement, prevention of
significant deterioration (PSD), and new source review (NSR).\3\
---------------------------------------------------------------------------
\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
---------------------------------------------------------------------------
110(a)(2)(D)(i): Interstate transport provisions.
110(a)(2)(D)(ii): Interstate and International Transport.
110(a)(2)(E): Adequate personnel, funding, and authority.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency episodes.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Nonattainment area plan or plan revision
under Part D.\4\
---------------------------------------------------------------------------
\4\ As mentioned above, this element is not relevant to this
proposed rulemaking.
---------------------------------------------------------------------------
110(a)(2)(J): Consultation with government officials,
public notification, PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Kentucky that addresses
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2008 Lead NAAQS. Pursuant to section 110(a)(1), states must
make SIP submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``each such
plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from
[[Page 45471]]
submissions that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP''
submissions to address the nonattainment planning requirements of part
D of title I of the CAA, ``regional haze SIP'' submissions required by
EPA rule to address the visibility protection requirements of CAA
section 169A, and nonattainment new source review permit program
submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------
\5\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------
The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\10\
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\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements.
[[Page 45472]]
As this example illustrates, each type of SIP submission may implicate
some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
issued the Lead Infrastructure SIP Guidance on October 14, 2011.\12\
EPA developed this document to provide states with up-to-date guidance
for the 2008 Lead infrastructure SIPs. Within this guidance, EPA
describes the duty of states to make infrastructure SIP submissions to
meet basic structural SIP requirements within three years of
promulgation of a new or revised NAAQS. EPA also made recommendations
about many specific subsections of section 110(a)(2) that are relevant
in the context of infrastructure SIP submissions. The guidance also
discusses the substantively important issues that are germane to
certain subsections of section 110(a)(2). Significantly, EPA interprets
sections 110(a)(1) and 110(a)(2) such that infrastructure SIP
submissions need to address certain issues and need not address others.
Accordingly, EPA reviews each infrastructure SIP submission for
compliance with the applicable statutory provisions of section
110(a)(2), as appropriate.\13\
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\11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements Required under Clean Air Act Sections 110(a)(1) and
110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality
Standards (NAAQS),'' Memorandum from Stephen D. Page, October 14,
2001.
\13\ Although not intended to provide guidance for purposes of
infrastructure SIP submissions for the 2008 Lead NAAQS, EPA notes
that, following the 2011 Lead Infrastructure SIP Guidance, EPA
issued the ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2).'' Memorandum from Stephen D. Page, September 13, 2013.
This 2013 guidance provides recommendations for air agencies'
development and the EPA's review of infrastructure SIPs for the 2008
ozone primary and secondary NAAQS, the 2010 primary nitrogen dioxide
(NO2) NAAQS, the 2010 primary sulfur dioxide
(SO2) NAAQS, and the 2012 primary fine particulate matter
(PM2.5) NAAQS, as well as infrastructure SIPs for new or
revised NAAQS promulgated in the future.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\14\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\15\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\16\
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\14\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\15\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\16\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Kentucky addressed the elements of
sections 110(a)(1) and (2) ``infrastructure'' provisions?
The Kentucky infrastructure submission addresses the provisions of
sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A) Emission limits and other control measures: There
are several provisions within Kentucky's regulations that provide KY
DAQ with the necessary authority to adopt and
[[Page 45473]]
enforce air quality controls, which include enforceable emission
limitations and other control measures. Some sections but not all of
the following chapters,\17\ provide the state the necessary authority;
401 KAR Chapter 50 General Administrative Procedures 401 KAR 51
Attainment and Maintenance of the National Ambient Air Quality
Standards, 401 KAR 52 Permits, Registrations, and Prohibitory Rules,
and 401 KAR 53 Ambient Air Quality. EPA has made the preliminary
determination that these provisions and Kentucky's practices are
adequate to protect the 2008 Lead NAAQS in the Commonwealth.
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\17\ There are various chapters from the Kentucky submittal
cited to throughout this document as showing that Kentucky meets the
infrastructure requirements. To see exactly what sections Kentucky
cited in each chapter, refer to the submittal which can be accessed
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0443.
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In this action, EPA is not proposing to approve or disapprove any
existing Kentucky provisions with regard to excess emissions during
startup, shutdown and malfunction (SSM) of operations at a facility.
EPA believes that a number of states have SSM provisions which are
contrary to the CAA and existing EPA guidance, ``State Implementation
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup,
and Shutdown'' (September 20, 1999), and the Agency is addressing such
state regulations in a separate action.\18\ In the meantime, EPA
encourages any state having a deficient SSM provision to take steps to
correct it as soon as possible.
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\18\ On May 22, 2015, the EPA Administrator signed a final
action entitled, ``State Implementation Plans: Response to Petition
for Rulemaking; Restatement and Update of EPA's SSM Policy
Applicable to SIPs; Findings of Substantial Inadequacy; and SIP
Calls to Amend Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction.'' The prepublication
version of this rule is available at https://www.epa.gov/airquality/urbanair/sipstatus/emissions.html.
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Additionally, in this action, EPA is not proposing to approve or
disapprove any existing State rules with regard to director's
discretion or variance provisions. In the meantime, EPA encourages any
state having a director's discretion or variance provision which is
contrary to the CAA and EPA guidance to take steps to correct the
deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality monitoring/data system: SIPs
are required to provide for the establishment and operation of ambient
air quality monitors; the compilation and analysis of ambient air
quality data; and the submission of these data to EPA upon request. 401
KAR 50:050 Monitoring and KRS 224.10-100(22) along with the Kentucky
Annual Monitoring Network Plan, provide for an ambient air quality
monitoring system in the State, which includes the monitoring of lead
at appropriate locations throughout the state using the EPA approved
Federal Reference Method or equivalent monitors. 401 KAR Chapter 50
General Administrative Procedures also provides Kentucky with the
statutory authority to ``determine by means of field sampling and other
studies, including the examination of available data collected by any
local, State or federal agency or any person, the degree of air
contamination and air pollution in the State and the several areas of
the State.'' The monitors are all part of the Air Quality Systems (AQS)
and identification numbers. Annually, States develop and submit to EPA
for approval statewide ambient monitoring network plans consistent with
the requirements of 40 CFR parts 50, 53, and 58. The annual network
plan involves an evaluation of any proposed changes to the monitoring
network, includes the annual ambient monitoring network design plan and
a certified evaluation of the agency's ambient monitors and auxiliary
support equipment.\19\ The latest monitoring network plan for Kentucky
was submitted to EPA on June 30, 2014, and on October 30, 2014, EPA
approved this plan. Kentucky's approved monitoring network plan can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-
0443. EPA has made the preliminary determination that Kentucky's SIP
and practices are adequate for the ambient air quality monitoring and
data system related to the 2008 Lead NAAQS.
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\19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Program for enforcement, PSD, and NSR: This element
consists of three sub-elements; enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources; and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). To meet these obligations, Kentucky cited regulations 401
KAR 50:060. The enforcement aspect of 110(a)(2)(C) provides for
enforcement of the terms and conditions of permits and compliance
schedules, and 401 KAR 52 Permits, Registrations, and Prohibitory
Rules, which pertain to the construction of new stationary sources or
any project at an existing stationary source. In this action, EPA is
only proposing to approve the enforcement and the regulation of minor
sources and minor modifications aspects of Kentucky's section
110(a)(2)(C) infrastructure SIP submission.
Enforcement: KY DAQ's above-described, SIP-approved regulations
provide for enforcement of lead emission limits and control measures
and construction permitting for new or modified stationary sources.
Preconstruction PSD Permitting for Major Sources: With respect to
Kentucky's July 17, 2012, infrastructure SIP submission related to the
preconstruction PSD permitting requirements for major sources of
section 110(a)(2)(C), EPA took final action to approve these provisions
for the 2008 Lead NAAQS on March 18, 2015. See 80 FR 14019.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source pre-construction program that regulates emissions of the 2008
Lead NAAQS. Regulation 401 KAR 52:030 governs the preconstruction
permitting of modifications and construction of minor stationary
sources.
EPA has made the preliminary determination that Kentucky's SIP and
practices are adequate for enforcement of control measures and
regulation of minor sources and modifications related to the 2008 Lead
NAAQS.
4. 110(a)(2)(D)(i) and (ii) Interstate and International transport
provisions: Section 110(a)(2)(D)(i) has two components;
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components
have two subparts resulting in four distinct components, commonly
referred to as ``prongs,'' that must be addressed in infrastructure SIP
submissions. The first two prongs, which are codified in section
110(a)(2)(D)(i)(I), are provisions that prohibit any source or other
type of emissions activity in one state from contributing significantly
to nonattainment of the NAAQS in another state (``prong 1''), and
interfering with maintenance of the NAAQS in another state (``prong
2''). The third and fourth prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in
one state interfering with measures required to prevent significant
deterioration of air quality in another state (``prong 3''), or to
protect visibility in another state (``prong 4''). Section
110(a)(2)(D)(ii)
[[Page 45474]]
requires SIPs to include provisions insuring compliance with sections
115 and 126 of the Act, relating to interstate and international
pollution abatement.
110(a)(2)(D)(i)(I) prongs 1 and 2: Section 110(a)(2)(D)(i) requires
infrastructure SIP submissions to include provisions prohibiting any
source or other type of emissions activity in one state from
contributing significantly to nonattainment in, or interfering with
maintenance of the NAAQS in another state. The physical properties of
lead prevent lead emissions from experiencing that same travel or
formation phenomena as PM2.5 and ozone for interstate
transport as outlined in prongs 1 and 2. More specifically, there is a
sharp decrease in the lead concentrations, at least in the coarse
fraction, as the distance from a lead source increases. EPA believes
that the requirements of prongs 1 and 2 can be satisfied through a
state's assessment as to whether a lead source located within its State
in close proximity to a state border has emissions that contribute
significantly to the nonattainment or interfere with maintenance of the
NAAQS in the neighboring state. For example, EPA's experience suggests
that sources located more than two miles from the state border or that
sources that emit less than 0.5 tons per year (tpy) generally appear
unlikely to contribute significantly to the nonattainment in another
state. Kentucky has one lead source that has emissions which exceed 0.5
tpy, however, the source is located about 50 miles from the border.\20\
As a result of its distance to the border, EPA believes it is unlikely
to contribute significantly to the nonattainment or interfere with
maintenance of the NAAQS in another state. Therefore, EPA has made the
preliminary determination that Kentucky's SIP meets the requirements of
section 110(a)(2)(D)(i)(I).
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\20\ The one facility in Kentucky that has lead emissions
greater than 0.5 tpy is the EnerSys facility located at 761 Eastern
Bypass Richmond, KY 40475. The lead emissions from this facility are
0.55 tpy.
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110(a)(2)(D)(i)(II) Prong 3: With respect to Kentucky's July 17,
2012 infrastructure SIP submission related to the interstate transport
requirements for PSD of prong 3 of section 110(a)(2)(D)(i), EPA took
final action to approve this portion of Kentucky's submission for the
2008 Lead NAAQS on March 18, 2015. See 80 FR 14019.
110(a)(2)(D)(i)(II) prong 4: With regard to section
110(a)(2)(D)(i)(II), the visibility sub-element, referred to as prong
4, significant visibility impacts from stationary source lead emissions
are expected to be limited to short distances from the source. The 2011
Lead Infrastructure SIP Guidance notes that the lead constituent of PM
would likely not travel far enough to affect Class 1 areas and that the
visibility provisions of the CAA do not directly regulate lead. Lead
stationary sources in Kentucky are located distances from Class I areas
such that visibility impacts are negligible. Accordingly, EPA has
preliminarily determined that the Kentucky SIP meets the relevant
visibility requirements of prong 4 of section 110(a)(2)(D)(i).
110(a)(2)(D)(ii) Interstate and International transport provisions:
With regard to section 110(a)(2)(D)(ii), section 6 of KAR Chapter
52:100, Public, Affected State, and US EPA Review, outlines how
Kentucky will notify neighboring states of potential impacts from new
or modified sources. Further, EPA is unaware of any pending obligations
for the Commonwealth pursuant to sections 115 or 126 of the CAA. EPA
has made the preliminary determination that Kentucky DAQ's SIP and
practices are adequate for insuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 2008 Lead NAAQS. Accordingly, EPA is proposing to
approve Kentucky's infrastructure SIP submission with respect to
section 110(a)(2)(D)(ii).
5. 110(a)(2)(E) Adequate personnel, funding, and authority: Section
110(a)(2)(E) requires that each implementation plan provide (i)
necessary assurances that the State will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the State comply with the requirements respecting State
Boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the State has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the State has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
Kentucky's SIP as meeting the requirements of sub-elements
110(a)(2)(E)(i), (ii) and (iii). EPA's rationale for this proposal
respecting sub-element (i), (ii),and(iii) is described in turn below.
To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii),
Kentucky's infrastructure SIP submission cites regulation 401 KAR
50:038 Air Emissions Fee, which provides the assessment fees necessary
to fund the state Title V permit program. EPA submitted a letter to
Kentucky on February 27, 2014, outlining 105 grant commitments and the
current status of these commitments for fiscal year 2013. The letter
EPA submitted to Kentucky can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2014-0443. Annually, states update these
grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. Kentucky
satisfactorily met all commitments agreed to in the Air Planning
Agreement for fiscal year 2013, therefore Kentucky's grants were
finalized and closed out.
Section 110(a)(2)(E)(ii) requires that Kentucky comply with section
128 of the CAA. Section 128 requires that: (1) The majority of members
of the state board or body which approves permits or enforcement orders
represent the public interest and do not derive any significant portion
of their income from persons subject to permitting or enforcement
orders under the CAA; and (2) any potential conflicts of interest by
such board or body, or the head of an executive agency with similar,
powers be adequately disclosed.
KY DAQ's infrastructure SIP submission adequately demonstrated that
Kentucky's SIP meets the applicable section 128 requirements pursuant
to section 110(a)(2)(E)(ii).
For purposes of section 128(a)(1), Kentucky has no boards or bodies
with authority over air pollution permits or enforcement actions. Such
matters are instead handled by the Director of the KY DAQ. As such, a
``board or body'' is not responsible for approving permits or
enforcement orders in Kentucky, and the requirements of section
128(a)(1) are not applicable. For purposes of section 128(a)(2),
Kentucky's SIP has been updated. On October 3, 2012, EPA finalized
approval of KY DAQ's July 17, 2012, SIP revision requesting
incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and Chapters
224.10-020 and 224.10-100 into the SIP to address sub-element
110(a)(2)(E)(ii). See 77 FR 60307. With the incorporation of these
regulations into the Kentucky SIP, EPA has made the preliminary
determination that the Commonwealth has adequately addressed the
requirements of section 128(a)(2), and accordingly has met the
infrastructure SIP requirements of section 110(a)(2)(E)(ii). Therefore,
EPA is proposing to approve KY DAQ's SIP as meeting the requirements of
sub-elements 110(a)(2)(E)(i), (ii) and (iii).
6. 110(a)(2)(F) Stationary source monitoring system: KY DAQ's
infrastructure SIP submission describes how the State establishes
requirements for emissions compliance testing and
[[Page 45475]]
utilizes emissions sampling and analysis. It further describes how the
State ensures the quality of its data through observing emissions and
monitoring operations. KY DAQ uses these data to track progress towards
maintaining the NAAQS, develop control and maintenance strategies,
identify sources and general emission levels, and determine compliance
with emission regulations and additional EPA requirements. KY DAQ meets
these requirements through KY DAQ 401 KAR 50:050 Monitoring. These
requirements are incorporated into the SIP at Chapter 50 General
Administrative Procedures allows for the use of credible evidence in
the event that the KY DAQ Director has evidence that a source is
violating an emission standard or permit condition, the Director may
require that the owner or operator of any source submit to the Director
any information necessary to determine the compliance status of the
source. In addition, EPA is unaware of any provision preventing the use
of credible evidence in the Kentucky SIP.
In addition, Kentucky is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data. See 73 FR
76539. The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--NOX, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also voluntarily report emissions of
hazardous air pollutants. Kentucky made its latest update to the 2013
NEI on November 11, 2014. EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through the Web site https://www.epa.gov/ttn/chief/eiinformation.html.
EPA has made the preliminary determination that Kentucky's SIP and
practices are adequate for the stationary source monitoring systems
obligations for the 2008 Lead NAAQS.
7. 110(a)(2)(G) Emergency episodes: This section requires that
states demonstrate authority comparable with section 303 of the CAA and
adequate contingency plans to implement such authority. Kentucky's
infrastructure SIP submission cites 401 KAR Chapter 55 Emergency
Episodes as identifying air pollution emergency episodes and preplanned
abatement strategies, and providing the means to implement emergency
air pollution episode measures. Conditions justifying the proclamation
of an air pollution alert, air pollution warning, or air pollution
emergency shall be deemed to exist whenever the cabinet determines that
the accumulation of air contaminants in any place is attaining or has
attained levels which could, if such levels are sustained or exceeded,
present a threat to the health of the public. The intent of this
administrative regulation is to provide for the curtailment or
reduction of processes or operations which emit an air contaminant or
an air contaminant precursor whose criteria has been reached and are
located in the affected area for which an episode level has been
declared. This rule defines what an episodic criteria is and the
procedure for an episode declaration. In addition, KRS 224.10-410
provides: ``Notwithstanding any inconsistent provisions of law,
whenever the Secretary of the Energy and Environment Cabinet finds,
after investigation, that any person or combination of persons is
causing, engaging in or maintaining a condition or activity which, in
his judgment, presents a danger to the health or welfare of the people
of the state or results in or is likely to result in damage to natural
resources, and relates to the prevention and abatement powers of the
secretary and it therefore appears to be prejudicial to the interests
of the people of the state to delay action until an opportunity for a
hearing can be provided, the secretary may, without prior hearing,
order such person or combination of persons by notice, in writing
wherever practicable or in such other form as in the secretary's
judgment will reasonably notify such person or combination of persons
whose practices are intended to be proscribed, to discontinue, abate or
alleviate such condition or activity, and thereupon such person or
combination of persons shall immediately discontinue, abate or
alleviate such condition or activity. As soon as possible thereafter,
not to exceed ten (10) days, the secretary shall provide the person or
combination of persons an opportunity to be heard and to present proof
that such condition or activity does not violate the provisions of this
section. The secretary shall adopt any other appropriate rules and
regulations prescribing the procedure to be followed in the issuance of
such orders. The secretary shall immediately notify the Governor of any
order issued pursuant to this section.'' EPA has made the preliminary
determination that Kentucky's SIP and practices are adequate to satisfy
the emergency powers obligations of the 2008 Lead NAAQS.
8. 110(a)(2)(H) Future SIP revisions: KY DAQ is responsible for
adopting air quality rules and revising SIPs as needed to attain or
maintain the NAAQS in Kentucky. 401 KAR Chapter 53 Ambient Air Quality
and Chapter 51 Attainment and Maintenance of the National Ambient Air
Quality Standards grant KY DAQ the broad authority to implement the
CAA, and as such, provides KY DAQ the authority to prepare and develop,
after proper study, a comprehensive plan for the prevention of air
pollution. These statutes also provide KY DAQ the ability and authority
to respond to calls for SIP revisions, and has provided a number of SIP
revisions over the years for implementation of the NAAQS. Accordingly,
EPA has made the preliminary determination that Kentucky's SIP and
practices adequately demonstrate a commitment to provide future SIP
revisions related to the 2008 Lead NAAQS, when necessary.
9. 110(a)(2)(J): EPA is proposing to approve Kentucky's
infrastructure SIP for the 2008 Lead NAAQS with respect to the general
requirement in section 110(a)(2)(J) to include a program in the SIP
that provides for meeting the applicable consultation requirements of
section 121, the public notification requirements of section 127, and
visibility protection. With respect to Kentucky's infrastructure SIP
submission related to the preconstruction PSD permitting requirements
of section 110(a)(2)(J), EPA took final action to approve Kentucky's
July 17, 2012, 2008 Lead infrastructure SIP for these requirements on
March 18, 2015. See 80 FR 14019. EPA's rationale for applicable
consultation requirements of section 121, the public notification
requirements of section 127, and visibility is described below.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
federal land managers (FLMs) carrying out NAAQS implementation
requirements pursuant to section 121 relative to consultation. 401 KAR
52 Permits, Registrations, and Prohibitory Rules along with the
Regional Haze SIP Plan (which allows
[[Page 45476]]
for consultation between appropriate state, local, and tribal air
pollution control agencies as well as the corresponding FLMs), provide
for consultation with government officials whose jurisdictions might be
affected by SIP development activities. Implementation of
transportation conformity as outlined in the consultation procedures
requires KY DAQ to consult with federal, state and local transportation
and air quality agency officials on the development of motor vehicle
emissions budgets. EPA has made the preliminary determination that
Kentucky's SIP and practices adequately demonstrate that the State
meets applicable requirements related to consultation with government
officials for the 2008 Lead NAAQS when necessary.
Public notification (127 public notification): To meet the public
notification requirements of section 110(a)(2)(J), statutes 401 KAR 51
Attainment and Maintenance of the National Ambient Air Quality
Standards and 401 KAR 52 Permits, Registrations provides Kentucky with
the authority to declare an emergency and notify the public accordingly
when it finds t a generalized condition of water or air pollution which
is causing imminent danger to the health or safety of the public. For
example, 401 KAR 52:100. Public, Affected State, and U.S. EPA Review of
the Kentucky SIP process affords the public an opportunity to
participate in regulatory and other efforts to improve air quality by
holding public hearings for interested persons to appear and submit
written or oral comments. EPA also notes that KY DAQ maintains a Web
site that provides the public with notice of the health hazards
associated with Lead NAAQS exceedances, measures the public can take to
help prevent such exceedances, and the ways in which the public can
participate in the regulatory process. See https://air.ky.gov/Pages/default.aspx.
EPA has made the preliminary determination that Kentucky's SIP and
practices adequately demonstrate the State's ability to provide public
notification related to the 2008 Lead NAAQS when necessary.
Visibility Protection: The 2011 Lead Infrastructure SIP Guidance
notes that EPA does not generally treat the visibility protection
aspects of section 110(a)(2)(J) as applicable for purposes of the
infrastructure SIP approval process. EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under Part C of the Act (which includes sections 169A and 169B).
However, in the event of the establishment of a new primary NAAQS, the
visibility protection and regional haze program requirements under part
C do not change. EPA thus does not expect states to address visibility
in lead infrastructure submittals. Thus, EPA concludes there are no new
applicable visibility protection obligations under section 110(a)(2)(J)
as a result of the 2008 Lead NAAQS. Accordingly, EPA is proposing to
approve section 110(a)(2)(J) of KY DAQ's infrastructure SIP submission
with respect to visibility.
EPA has made the preliminary determination that Kentucky's SIP and
practices adequately demonstrate the State's ability to meet the
requirements of section 110(a)(2)(J) to include a program in the SIP
that provides for meeting the applicable requirements of section 121
(consultation), section 127 public notification, and visibility
protection.
10. 110(a)(2)(K) Air quality modeling/data: Section 110(a)(2)(K) of
the CAA requires that SIPs provide for performing air quality modeling
so that effects on air quality of emissions from NAAQS pollutants can
be predicted and submission of such data to the USEPA can be made. 401
KAR Chapter 50 General Administrative Procedures require that air
modeling be conducted in accordance with 40 CFR part 51, appendix W
``Guideline on Air Quality Models.'' These regulations demonstrate that
Kentucky has the authority to perform air quality modeling and to
provide relevant data for the purpose of predicting the effect on
ambient air quality of the 2008 Lead NAAQS. Additionally, Kentucky
supports a regional effort to coordinate the development of emissions
inventories and conduct regional modeling for several NAAQS, including
the 2008 Lead NAAQS, for the Southeastern states. Taken as a whole,
Kentucky's air quality regulations demonstrate that KY DAQ has the
authority to provide relevant data for the purpose of predicting the
effect on ambient air quality of the 2008 Lead NAAQS. EPA has made the
preliminary determination that Kentucky's SIP and practices adequately
demonstrate the State's ability to provide for air quality and
modeling, along with analysis of the associated data, related to the
2008 Lead NAAQS when necessary.
11. 110(a)(2)(L) Permitting fees: This element necessitates that
the SIP require the owner or operator of each major stationary source
to pay to the permitting authority, as a condition of any permit
required under the CAA, a fee sufficient to cover (i) the reasonable
costs of reviewing and acting upon any application for such a permit,
and (ii) if the owner or operator receives a permit for such source,
the reasonable costs of implementing and enforcing the terms and
conditions of any such permit (not including any court costs or other
costs associated with any enforcement action), until such fee
requirement is superseded with respect to such sources by the
Administrator's approval of a fee program under title V.
To satisfy these requirements, Kentucky Regulation 401 KAR 50:038
Air Emissions Fee, and the Title V Operating Permit Program
Implementation Protocol dated August 13, 1999, is how KY DAQ collects
adequate emission fees related to the cost of administering the air
quality program mandated under Title V of the CAA Amendments of 1990
(Public Law 101-549, as amended). Funds collected in support of the
program are used in support of review, implementation, and enforcement
of PSD/NNSR permits. The Title V program takes over for the PSD/NNSR
permit once the source begin operating. EPA has made the preliminary
determination that Kentucky's practices adequately provide for
permitting fees related to the 2008 Lead NAAQS, when necessary.
12. 110(a)(2)(M) Consultation/participation by affected local
entities: This element requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP. 401 KAR 52 Permits, Registrations authorize and
require KY DAQ to advise, consult, cooperate and enter into agreements
with other agencies of the state, the Federal Government, other states,
interstate agencies, groups, political subdivisions, and industries
affected by the provisions of this act, rules, or policies of the
department. EPA has made the preliminary determination that Kentucky's
SIP and practices adequately demonstrate consultation with affected
local entities related to the 2008 Lead NAAQS, when necessary.
V. Proposed Action
With the exception of the PSD permitting requirements for major
sources contained in sections 110(a)(2)(C), prong 3 of (D)(i), and (J),
EPA is proposing to approve that KY DAQ's infrastructure SIP
submission, submitted July 17, 2012, for the 2008 Lead NAAQS meets the
above described infrastructure SIP requirements. EPA is proposing to
approve these portions of Kentucky's infrastructure SIP submission for
the 2008 Lead NAAQS because these aspects of the submission are
consistent with section 110 of the CAA.
[[Page 45477]]
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 state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; 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, the Kentucky SIP is not approved to apply on any
Indian reservation land or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
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, Lead, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 14, 2015.
Heather Mc Teer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-18613 Filed 7-29-15; 8:45 am]
BILLING CODE 6560-50-P
