Approval and Promulgation of Implementation Plans; Kentucky; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 19098-19108 [2016-07644]
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Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Proposed Rules
ACTION:
Proposed rule; reopening of
comment period; availability of
supplemental information.
location (e.g., copyrighted material), and
some may not be publicly available at
either location (e.g., CBI).
spreadsheet that we are making
available in the docket at this time.
The Environmental Protection
Agency (EPA) is reopening the comment
period for a proposed rule to establish
a Clean Air Act (CAA) Federal
Implementation Plan (FIP) to address
regional haze and visibility transport
requirements for the State of Arkansas.
The reopening of the comment period is
strictly limited to EPA’s calculations of
revised RPGs for Arkansas’ Class I areas,
which are presented in a supporting
document being made available at this
time in the docket. EPA is reopening the
public comment period until May 4,
2016.
FOR FURTHER INFORMATION CONTACT:
Environmental protection, Air
pollution control, Best available control
technology, Incorporation by reference,
Intergovernmental relations, Interstate
transport of pollution, Nitrogen dioxide,
Ozone, Particulate matter, Reporting
and recordkeeping, requirements, Sulfur
dioxides, Regional haze, Visibility.
SUMMARY:
The comment period for the
proposed rule published on April 8,
2015 (80 FR 18944), extended at 80 FR
24872 (July 15, 2015), and reopened at
80 FR 43661 (July 23, 2015), is again
reopened. Written comments must be
received on or before May 4, 2016.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2015–0189, at https://
www.regulations.gov or via email to
donaldson.guy@epa.gov. Follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact Dayana Medina, 214–665–7241,
medina.dayana@epa.gov. For the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at the EPA Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas. While all
documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
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DATES:
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Dayana Medina, (214) 665–7241;
medina.dayana@epa.gov. To inspect the
hard copy materials, please schedule an
appointment with Dayana Medina or
Mr. Bill Deese at 214–665–7253.
On April
8, 2015, we published in the Federal
Register a proposal to establish a FIP for
the State of Arkansas addressing
regional haze and visibility transport (80
FR 18944). The proposed FIP includes
emission limits for sources in Arkansas.
Comments on the proposed rule were
required to be received by May 16, 2015.
On May 1, 2015, we extended the
comment period to July 15, 2015 (80 FR
24872). On July 23, 2015, we reopened
the comment period until August 7,
2015 (80 FR 43661), in response to a
request we received for an extension of
the comment period.
We are announcing the availability in
the docket of supplemental information
we relied on in our Arkansas FIP
proposal, but which was inadvertently
omitted from the docket at the time we
proposed the FIP. In our proposed rule
published on April 8, 2015, we
proposed revised RPGs for the 20%
worst days for Arkansas’ Class I areas,
the Caney Creek and Upper Buffalo
Wilderness Areas (80 FR at 18998). Our
revised RPGs and our methodology for
calculating the revised RPGs were
discussed in detail in our proposal and
in our technical support
documentation,1 which was made
available in the docket when the
proposed rule was published on April 8,
2015. However, a spreadsheet
containing the actual calculations of our
revised RPGs was inadvertently omitted
from the docket. Therefore, the
reopening of the comment period is
strictly limited to our calculations of the
revised RPGs, as presented in the
spreadsheet we are making available at
this time in the docket. The reopening
of the comment period does not apply
to our general methodology for
calculating the revised RPGs, to the
numerical values of the revised RPGs, or
to any other aspects or portions of our
proposed rule, for which we have
previously provided opportunity for
public comment. This action will allow
interested persons time to prepare and
submit comments on our calculations of
the revised RPGs, as presented in the
SUPPLEMENTARY INFORMATION:
1 See ‘‘Technical Support Document for EPA’s
Proposed Action on the Arkansas Regional Haze
Federal Implementation Plan’’ at page 147.
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List of Subjects in 40 CFR Part 52
Authority: 42 U.S.C. 7401 et seq.
Dated: March 23, 2016.
Lisa Price,
Acting Director, Multimedia Planning and
Permitting Division, Region 6.
[FR Doc. 2016–07486 Filed 4–1–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0426; FRL–9944–52–
Region 4]
Approval and Promulgation of
Implementation Plans; Kentucky;
Infrastructure Requirements for the
2010 Sulfur Dioxide National Ambient
Air Quality Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
portions of the 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
(KDAQ), on April 26, 2013, to
demonstrate that the Commonwealth
meets the infrastructure requirements of
the Clean Air Act (CAA or Act) for the
2010 1-hour sulfur dioxide (SO2)
national ambient air quality standard
(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. KDAQ certified
that the Kentucky SIP contains
provisions that ensure the 2010 1-hour
SO2 NAAQS is implemented, enforced,
and maintained in Kentucky. EPA is
proposing to determine that Kentucky’s
infrastructure submission, submitted on
April 26, 2013, addresses certain
infrastructure elements for the 2010 1hour SO2 NAAQS.
SUMMARY:
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Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Proposed Rules
Written comments must be
received on or before May 4, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0426 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Michele Notarianni, 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. Ms.
Notarianni can be reached via electronic
mail at notarianni.michele@epa.gov or
the telephone number (404) 562–9031.
DATES:
Table of Contents
I. Background and Overview
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
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I. Background and Overview
On June 22, 2010 (75 FR 35520), EPA
revised the primary SO2 NAAQS to an
hourly standard at a level of 75 parts per
billion (ppb), based on a 3-year average
of the annual 99th percentile of 1-hour
daily maximum concentrations.
Pursuant to section 110(a)(1) of the
CAA, states are required to submit SIPs
meeting the applicable requirements of
section 110(a)(2) within three years after
promulgation of a new or revised
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NAAQS or within such shorter period
as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP
elements such as requirements for
monitoring, basic program requirements
and legal authority that are designed to
assure attainment and maintenance of
the NAAQS. States were required to
submit such SIPs for the 2010 1-hour
SO2 NAAQS to EPA no later than June
2, 2013.1
Today’s action is proposing to
approve Kentucky’s infrastructure SIP
submission for the applicable
requirements of the 2010 1-hour SO2
NAAQS. With respect to the interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states and the visibility requirements of
section 110(a)(2)(D)(i)(I) and (II) (prongs
1, 2, and 4), and the minor source
program requirements of section
110(a)(2)(C), EPA is not proposing any
action at this time regarding these
requirements. 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
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). Throughout this
rulemaking, unless otherwise indicated, the term
‘‘401 KAR XX:XXX’’ indicates that the cited
regulation has either been approved, or submitted
for approval into Kentucky’s federally-approved
SIP. The State statutes cited from the Kentucky
Revised Statutes (also referred to as ‘‘KRS’’)
throughout this rulemaking are not approved into
the Kentucky SIP, unless otherwise indicated.
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upon what provisions the state’s
existing SIP already contains.
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 basic SIP elements such as
requirements for monitoring, basic
program requirements and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS. The requirements that are the
subject of this proposed rulemaking are
summarized below and in EPA’s
September 13, 2013, memorandum
entitled ‘‘Guidance on Infrastructure
State Implementation Plan (SIP)
Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).’’ 2
• 110(a)(2)(A): Emission Limits and
Other Control Measures
• 110(a)(2)(B): Ambient Air Quality
Monitoring/Data System
• 110(a)(2)(C): Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources 3
• 110(a)(2)(D)(i)(I) and (II): Interstate
Pollution Transport
• 110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Air
Pollution
• 110(a)(2)(E): Adequate Resources and
Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies
• 110(a)(2)(F): Stationary Source
Monitoring and Reporting
• 110(a)(2)(G): Emergency Powers
• 110(a)(2)(H): SIP Revisions
• 110(a)(2)(I): Plan Revisions for
Nonattainment Areas 4
• 110(a)(2)(J): Consultation with
Government Officials, Public
Notification, and Prevention of
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. Today’s proposed
rulemaking does not address infrastructure
elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of
110(a)(2)(C).
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 today’s proposed rulemaking.
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Significant Deterioration (PSD) and
Visibility Protection
• 110(a)(2)(K): Air Quality Modeling
and Submission of Modeling Data
• 110(a)(2)(L): Permitting fees
• 110(a)(2)(M): Consultation and
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 2010 1-hour SO2
NAAQS. The requirement for states to
make a SIP submission of this type
arises out of CAA section 110(a)(1).
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 ‘‘[e]ach 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
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 (NNSR) 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)
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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)
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
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
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
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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
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,
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).
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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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.
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
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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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 most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).12 EPA developed
this document to provide states with upto-date guidance for infrastructure SIPs
for any new or revised NAAQS. 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.13 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.
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 under Clean
Air Act sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
13 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d7
(D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However they are addressed by
the state, the substantive requirements
of section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
including greenhouse gases (GHGs). By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS.
Accordingly, the latter optional
provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
among other things, the requirement
that states have a program to regulate
minor new sources. Thus, EPA
evaluates whether the state has an EPAapproved minor NSR program and
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whether the program addresses the
pollutants relevant to that NAAQS. In
the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Thus, EPA believes it may
approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
aware of such existing provisions.14 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
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
14 By
contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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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.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
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.15 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.16
15 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).
16 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
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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.17
IV. What is EPA’s analysis of how
Kentucky addressed the elements of the
sections 110(a)(1) and (2)
‘‘Infrastructure’’ provisions?
Kentucky’s April 26, 2013,
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: Section
110(a)(2)(A) requires that each
implementation plan include
enforceable emission limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
necessary or appropriate to meet the
applicable requirements. These
requirements are met through Kentucky
Revised Statute (KRS) Chapter 224
Section 10–100 (KRS 224.10–100),
which provides the KDAQ the authority
to administer all rules, regulations, and
orders promulgated under Chapter 224,
and to provide for the prevention,
abatement, and control of all water,
land, and air pollution.
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).
17 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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KDAQ cited to chapters and
associated Kentucky Administrative
Regulations (KAR) under Title 401 to
demonstrate that the Commonwealth
meets the requirements of this element,
including the following:
• Chapter 50 General Administrative
Procedures: 401 KAR 50:010.
Definitions for 401 KAR Chapter 50; 401
KAR 50:012. General application; 401
KAR 50:015. Documents incorporated
by reference; 401 KAR 50:020. Air
quality control regions; 401 KAR 50:025.
Classification of counties; 401 KAR
50:040. Air quality models; 401 KAR
50:042. Good engineering practice stack
height; 401 KAR 50:045. Performance
tests; 401 KAR 50:047. Test procedures
for capture efficiency; 401 KAR 50:050.
Monitoring; 401 KAR 50:055. General
compliance requirements; and 401 KAR
50:060. Enforcement.
• Chapter 51 Attainment and
Maintenance of the National Ambient
Air Quality Standards: 401 KAR 51:001.
Definitions for 401 KAR Chapter 51; 401
KAR 51:005. Purpose and General
Provisions; 401 KAR 51:010. Attainment
Status Designations; 401 KAR 51:017.
Prevention of significant deterioration of
air quality; 401 KAR 51:052. Review of
new sources in or impacting upon
nonattainment areas.
• Chapter 52 Permits, Registrations,
and Prohibitory Rules: 401 KAR 52:001.
Definitions for 401 KAR Chapter 52; 401
KAR 52:020. Title V permits; 18 401
KAR 52:030. Federally-enforceable
permits for nonmajor sources; 401 KAR
52:090. Prohibitorv rule for hot mix
asphalt plants; 401 KAR 53:005. General
provisions; 401 KAR 53:010. Ambient
air quality standards.
Collectively these regulations
establish enforceable emissions
limitations and other control measures,
means or techniques, for activities that
contribute to SO2 concentrations in the
ambient air and provide authority for
KDAQ to establish such limits and
measures as well as schedules for
compliance to meet the applicable
requirements of the CAA. EPA has made
the preliminary determination that the
provisions contained in these
regulations, and Kentucky’s statute are
adequate for enforceable emission
limitations and other control measures,
means, or techniques, as well as
schedules and timetables for
compliance for the 2010 1-hour SO2
NAAQS in the Commonwealth.
In this action, EPA is not proposing to
approve or disapprove any existing
Commonwealth provisions with regard
to excess emissions during SSM
18 This rule is not approved into Kentucky’s
federally-approved SIP.
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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.19
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. EPA believes that a number
of states have such provisions which are
contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24,
1987)), and the Agency plans to take
action in the future to address such state
regulations. 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: Section
110(a)(2)(B) requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to (i) monitor,
compile, and analyze data on ambient
air quality, and (ii) upon request, make
such data available to the
Administrator. These requirements are
met through KRS 224.10–100 (22),
which provides KDAQ the authority to
require the installation, maintenance,
and use of equipment, devices, or tests
and methodologies to monitor the
nature and amount of any substance
emitted into the ambient air and to
provide the information to the cabinet.
KDAQ cites the following regulations
to demonstrate that the Commonwealth
meets the requirements of this element:
401 KAR 50:050. Monitoring; 401 KAR
51:017. Prevention of significant
deterioration of air quality; and 401
KAR 51:052. Review of new sources in
or impacting upon nonattainment areas;
401 KAR 53:005. General provisions;
401 KAR 53:010. Ambient air quality
standards.
These SIP-approved rules and
Kentucky’s statute, along with
Kentucky’s Ambient Air Monitoring
Network Plan, provide for the
establishment and operation of ambient
air quality monitors, the compilation
19 On June 12, 2015, EPA published 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.’’
See 80 FR 33840.
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19103
and analysis of ambient air quality data,
and the submission of these data to EPA
upon request. 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.20 KDAQ’s
monitoring network plan was submitted
on July 1, 2015, and approved by EPA
on October 28, 2015. Kentucky’s
approved monitoring network plan can
be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2014–0426. 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 2010 1-hour SO2 NAAQS.
3. 110(a)(2)(C) Programs for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources: 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). These
requirements are met through 401 KAR
50:060. Enforcement; 401 KAR 51:017.
Prevention of significant deterioration of
air quality; and 401 KAR 51:052. Review
of new sources in or impacting upon
nonattainment areas. Collectively, these
regulations enable KDAQ to regulate
sources contributing to the 2010 1-hour
SO2 NAAQS. EPA’s analysis of how
these provisions of Kentucky’s SIP
address each sub-element (with the
exception of the minor source program
requirements, as set forth below) is
described below.
Enforcement: KDAQ’s SIP-approved
regulation, 401 KAR 50:060.
Enforcement, provides for enforcement
of SO2 emission limits and control
measures through permit and
compliance schedule modifications and
revocations, and authorizes
administrative penalties and injunctive
relief, citing to statutory civil penalty
and injunctive relief provisions of KRS
20 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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224.99–010. EPA has made the
preliminary determination that
Kentucky’s SIP is adequate for
enforcement related to the 2010 1-hour
SO2 NAAQS.
PSD Permitting for Major Sources:
EPA interprets the PSD sub-element to
require that a state’s infrastructure SIP
submission for a particular NAAQS
demonstrate that the state has a
complete PSD permitting program in
place covering the structural PSD
requirements for all regulated NSR
pollutants. A state’s PSD permitting
program is complete for this subelement (and prong 3 of D(i) and J
related to PSD) if EPA has already
approved or is simultaneously
approving the state’s SIP with respect to
all structural PSD requirements that are
due under the EPA regulations or the
CAA on or before the date of the EPA’s
proposed action on the infrastructure
SIP submission. For the 2010 1-hour
SO2 NAAQS, Kentucky’s authority to
regulate new and modified sources to
assist in the protection of air quality in
attainment or unclassifiable areas is
established in KAR Chapter 51—
Attainment and Maintenance of the
National Ambient Air Quality
Standards, which describes the permit
requirements for new major sources or
major modifications of existing sources
in areas classified as attainment or
unclassifiable under section
107(d)(1)(A)(ii) or (iii) of the CAA.
These requirements are designed to
ensure that sources in areas attaining
the NAAQS at the time of designations
prevent any significant deterioration in
air quality. Chapter 51 also establishes
the permitting requirements for areas in
or around nonattainment areas and
provides the Commonwealth’s statutory
authority to enforce regulations relating
to attainment and maintenance of the
NAAQS.
Kentucky’s infrastructure SIP
submission demonstrates that new
major sources and major modifications
in areas of the Commonwealth
designated attainment or unclassifiable
for the specified NAAQS are subject to
a federally-approved PSD permitting
program meeting all the current
structural requirements of part C of title
I of the CAA to satisfy the infrastructure
SIP PSD elements.21 EPA has made the
preliminary determination that
Kentucky’s SIP is adequate for PSD
permitting for major sources related to
the 2010 1-hour SO2 NAAQS.
21 For more information concerning how the
Kentucky infrastructure SIP submission currently
meets applicable structural PSD program
requirements, see the technical support document
in the docket for today’s rulemaking.
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Regulation of minor sources and
minor 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 2010 1hour SO2 NAAQS. EPA is not proposing
any action in this rulemaking related to
the regulation of minor sources and
minor modifications under section
110(a)(2)(C) and will consider these
requirements in relation to Kentucky’s
2010 1-hour SO2 NAAQS infrastructure
submission in a separate rulemaking.
4. 110(a)(2)(D)(i)(I) and (II) Interstate
Pollution Transport: 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 has 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
from 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’’).
110(a)(2)(D)(i)(I)—prongs 1 and 2:
EPA is not proposing any action in this
rulemaking related to the interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states of section 110(a)(2)(D)(i)(I)
(prongs 1 and 2) because Kentucky’s
2010 1-hour SO2 NAAQS infrastructure
submission did not address prongs 1
and 2.
110(a)(2)(D)(i)(II)—prong 3: With
regard to section 110(a)(2)(D)(i)(II), the
PSD element, referred to as prong 3, this
requirement may be met by a state’s
confirmation in an infrastructure SIP
submission that new major sources and
major modifications in the state are
subject to: A PSD program meeting all
the current structural requirements of
part C of title I of the CAA, or (if the
state contains a nonattainment area that
has the potential to impact PSD in
another state) to a NNSR program. As
discussed in more detail above under
section 110(a)(2)(C), Kentucky’s SIP
contains the relevant SIP revisions
necessary to satisfy the structural PSD
requirements of prong 3. Kentucky’s
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SIP-approved NNSR program is found at
401 KAR 51:052. Review of new sources
in or impacting upon nonattainment
areas. EPA has made the preliminary
determination that Kentucky’s SIP is
adequate for interstate transport for
permitting of major sources and major
modifications related to the 2010 1-hour
SO2 NAAQS for section
110(a)(2)(D)(i)(II) (prong 3).
110(a)(2)(D)(i)(II)—prong 4: EPA is not
proposing any action in this rulemaking
related to the interstate transport
provisions pertaining to visibility
protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will
consider these requirements in relation
to Kentucky’s 2010 1-hour SO2 NAAQS
infrastructure submission in a separate
rulemaking.
5. 110(a)(2)(D)(ii) Interstate and
International Transport Provisions:
Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance
with sections 115 and 126 of the Act,
relating to interstate and international
pollution abatement. Regulation 401
KAR 51:010. Attainment Status
Designations designates the status of all
areas of the Commonwealth of Kentucky
with regard to attainment of the
NAAQS. Regulation 401 KAR 51:017.
Prevention of significant deterioration of
air quality and Regulation 401 KAR
51:052. Review of new sources in or
impacting upon nonattainment areas,
Section 1, require Kentucky to provide
notice to nearby states that may be
affected by proposed major source
modifications. These regulations cite to
Federal notification requirements under
40 CFR Sections 51.166 and 52.21, and
to 401 KAR 52:100. Public, affected
state, and US. EPA review, Section 6,
which requires that public notice for
permit actions be provided to affected
states. Additionally, Kentucky does not
have any pending obligation under
sections 115 and 126 of the CAA. EPA
has made the preliminary determination
that Kentucky’s SIP is adequate for
ensuring compliance with the
applicable requirements relating to
interstate and international pollution
abatement for the 2010 1-hour SO2
NAAQS.
6. 110(a)(2)(E) Adequate Resources
and Authority, Conflict of Interest, and
Oversight of Local Governments and
Regional Agencies: 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
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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
submission as meeting the requirements
of sub-elements 110(a)(2)(E)(i), (ii), and
(iii).
In support of EPA’s proposal to
approve elements 110(a)(2)(E)(i) and
(iii), KDAQ’s infrastructure submission
demonstrates that it is responsible for
promulgating rules and regulations for
the NAAQS, emissions standards,
general policies, a system of permits, fee
schedules for the review of plans, and
other planning needs. With respect to
having the necessary funding and
authority to implement the Kentucky
SIP, Kentucky regulation, 401 KAR
50:038. Air Emissions Fee, and the
following State statutes support subelements (i) and (iii): KRS 224.10–100.
Powers and Duties of the Cabinet and
KRS 224.10–020. Departments within
the cabinet—Offices and divisions
within the departments—Appointments.
As evidence of the adequacy of KDAQ’s
resources with respect to sub-elements
(i) and (iii), EPA submitted a letter to
KDAQ on March 12, 2015, outlining 105
grant commitments and current status of
these commitments for fiscal year 2014.
The letter EPA submitted to KDAQ can
be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2014–0426. Annually, states update
these grant commitments based on
current SIP requirements, air quality
planning, and applicable requirements
related to the NAAQS. There were no
outstanding issues in relation to the SIP
for fiscal year 2014, therefore, KDAQ’s
grants were finalized and closed out. In
addition, the requirements of
110(a)(2)(E)(i) and (iii) are met when
EPA performs a completeness
determination for each SIP submittal.
This determination ensures that each
submittal provides evidence that
adequate personnel, funding, and legal
authority under state law has been used
to carry out the state’s implementation
plan and related issues. KDAQ’s
authority is included in all prehearings
and final SIP submittal packages for
approval by EPA. EPA has made the
preliminary determination that
Kentucky has adequate resources for
implementation of the 2010 1-hour SO2
NAAQS. Accordingly, EPA is proposing
to approve Kentucky’s infrastructure SIP
submission with respect to section
110(a)(2)(E)(i) and (iii).
Section 110(a)(2)(E)(ii) requires that
Kentucky comply with section 128 of
the CAA. Section 128 requires at
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128(a)(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
128(a)(2) any potential conflicts of
interest by such board or body, or the
head of an executive agency with
similar, powers be adequately disclosed.
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
KDAQ. 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), KDAQ’s SIP has been
updated. On October 3, 2012, EPA took
final action to approve incorporation of
KRS Chapters 11A.020, 11A.030,
11A.040 and Chapters 224.10–020 and
224.10–100 into the SIP to address the
conflict of interest requirements of
section 128. See 77 FR 60307. These
SIP-approved state statutes establish the
powers and duties of the cabinet,
departments within the cabinet, and
offices and divisions within such
departments (Chapters 224.10–020 and
224.10–100), and support sub-element
(ii) by requiring adequate disclosures of
potential conflicts (KRS 11A.020. Public
servant prohibited from certain
conduct—Exception—Disclosure of
personal or private interest) and
otherwise ensuring that public officers
and servants do not engage in activities
that may present a conflict of interest
(KRS 11A.030 Considerations in
determination to abstain from action on
official decision—Advisory opinion; and
KRS 11A.040 Acts prohibited for public
servant or officer—Exception). With the
incorporation of these regulations and
statutes 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
requirements of section 110(a)(2)(E)(ii)
with respect to infrastructure SIP
requirements. Thus, EPA is proposing
approval of KDAQ’s infrastructure SIP
submission for the 2010 1-hour SO2
NAAQS with respect to section
110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source
Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet
applicable requirements addressing (i)
the installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
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19105
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) periodic reports
on the nature and amounts of emissions
and emissions related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to this section,
which reports shall be available at
reasonable times for public inspection.
The Kentucky infrastructure submission
describes how the major source and
minor source emission inventory
programs collect emission data
throughout the Commonwealth and
ensure the quality of such data.
Kentucky meets these requirements
through Chapter 50 General
Administrative Procedures, specifically
401 KAR 50:050 Monitoring. 401 KAR
50:050, Section 1, Monitoring Records
and Reporting, states that the cabinet
may require a facility to install, use, and
maintain stack gas and ambient air
monitoring equipment and to establish
and maintain records, and make
periodic emission reports at intervals
prescribed by the cabinet. 401 KAR
50:050 Monitoring, Section 1,
Monitoring, Records, and Reporting,
establishes the requirements for the
installation, use, and maintenance of
stack gas and ambient air monitoring
equipment, and authorizes the cabinet
to require the owner or operator of any
affected facility to establish and
maintain records for this equipment and
make periodic emission reports at
intervals prescribed by the cabinet.
Also, KRS 224.10–100 (23) requires that
any person engaged in any operation
regulated pursuant to this chapter file
with the cabinet reports containing
information as to location, size, height,
rate of emission or discharge, and
composition of any substance
discharged or emitted into the ambient
air or into the waters or onto the land
of the Commonwealth, and such other
information the cabinet may require. In
addition, EPA is unaware of any
provision preventing the use of credible
evidence in the Kentucky SIP.22
Additionally, 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
22 ‘‘Credible Evidence,’’ makes allowances for
owners and/or operators to utilize ‘‘any credible
evidence or information relevant’’ to demonstrate
compliance with applicable requirements if the
appropriate performance or compliance test had
been performed, for the purpose of submitting
compliance certification and can be used to
establish whether or not an owner or operator has
violated or is in violation of any rule or standard.
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Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (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—nitrogen oxides, SO2, 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
NEI on November 6, 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 related to the 2010
1-hour SO2 NAAQS. Accordingly, EPA
is proposing to approve Kentucky’s
infrastructure SIP submission with
respect to section 110(a)(2)(F).
8. 110(a)(2)(G) Emergency Powers:
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 identifies air pollution
emergency episodes and preplanned
abatement strategies as outlined in the
following Kentucky regulations in
Chapter 55 Emergency Episodes,
specifically: 401 KAR 55:005.
Significant harm criteria, 401 KAR
55:010. Episode Criteria, and 401 KAR
55:015. Episode Declaration. 401 KAR
55:005. Significant Harm Criteria,
Section 1, Purpose, defines those levels
of pollutant concentration which must
be prevented in order to avoid
significant harm to the health of
persons. 401 KAR 55:010. Episodic
Criteria, defines those levels of pollutant
concentrations which justify the
proclamation of an air pollution alert,
air pollution warning, an air pollution
emergency. 401 KAR 55:015. Episode
Declaration, provides 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
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areas for which an episode level has
been declared.
In addition, KRS 224.10–100 Powers
and duties of cabinet and KRS 224.10–
410 Order for discontinuance,
abatement, or alleviation of condition or
activity without hearing—Subsequent
hearing, establish the authority for
Kentucky’s secretary to issue orders to
person(s) for discontinuance, abatement,
or alleviation of any condition or
activity without hearing because the
condition or activity presents a danger
to the health or welfare of the people of
the state, and for the cabinet to require
adoption of any remedial measures
deemed necessary. EPA has made the
preliminary determination that
Kentucky’s SIP, and state laws are
adequate for emergency powers related
to the 2010 1-hour SO2 NAAQS.
Accordingly, EPA is proposing to
approve Kentucky’s infrastructure SIP
submission with respect to section
110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section
110(a)(2)(H), in summary, requires each
SIP to provide for revisions of such plan
(i) as may be necessary to take account
of revisions of such national primary or
secondary ambient air quality standard
or the availability of improved or more
expeditious methods of attaining such
standard, and (ii) whenever the
Administrator finds that the plan is
substantially inadequate to attain the
NAAQS or to otherwise comply with
any additional applicable requirements.
As previously discussed, KDAQ is
responsible for adopting air quality
rules and revising SIPs as needed to
attain or maintain the NAAQS.
Kentucky has 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.
KDAQ 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 KDAQ the broad
authority to implement the CAA, and as
such, provides KDAQ the authority to
prepare and develop, after proper study,
a comprehensive plan for the prevention
of air pollution. These statutes also
provide KDAQ the ability and authority
to respond to calls for SIP revisions, and
KDAQ has provided a number of SIP
revisions over the years for
implementation of the NAAQS.
Additionally, 401 KAR 53:010 outlines
the ambient air quality standards
necessary for the protection of the
public health, the general welfare, and
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the property and people in the
Commonwealth and states that within
60 days of promulgation or revision of
any NAAQS by EPA, the cabinet will
initiate a process to promulgate or
review this administrative regulation.
401 KAR 51:010. Attainment Status
Designations provides provisions for the
Cabinet to review applicable data and
submit to EPA proposed revisions to the
list of attainment-nonattainment areas.
EPA has made the preliminary
determination that Kentucky adequately
demonstrates a commitment to provide
future SIP revisions related to the 2010
1-hour SO2 NAAQS when necessary.
Accordingly, EPA is proposing to
approve Kentucky’s infrastructure SIP
submission for the 2010 1-hour SO2
NAAQS with respect to section
110(a)(2)(H).
10. 110(a)(2)(J) Consultation with
Government Officials, Public
Notification, and PSD and Visibility
Protection: EPA is proposing to approve
Kentucky’s infrastructure SIP
submission for the 2010 1-hour SO2
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, PSD, and
visibility. EPA’s rationale for each subelement 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 carrying out NAAQS
implementation requirements pursuant
to section 121 relative to consultation.
This requirement is met through
provisions in separate implementation
plans, such as the Regional Haze SIP,
which provide for continued
consultation with government officials,
including the Federal Land Managers
(FLMs). Kentucky adopted consultation
procedures in coordination with the
transportation partners in the
Commonwealth, for the implementation
of transportation conformity, which
includes the development of mobile
inventories for SIP development.
Required partners covered by
Kentucky’s consultation procedures
include Federal, state and local
transportation and air quality agency
officials. Implementation of
transportation conformity as outlined in
the consultation procedures requires
KDAQ to consult with Federal, state and
local transportation and air quality
agency officials on the development of
motor vehicle emissions budgets. Also,
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KDAQ notes in its April 26, 2013, SIP
submission that the following Kentucky
regulations provide the Commonwealth
the authority to meet this requirement:
401 KAR 50:055. General compliance
requirements; 401 KAR 50:060.
Enforcement; 401 KAR 50:065.
Conformity of general federal actions;
401 KAR 50:066. Conformity of
Transportation Plans, Programs, and
Projects; 401 KAR 51:017. Prevention of
Significant Deterioration of Air Quality;
and 401 KAR 51:052. Review of new
sources in or impacting upon
nonattainment areas. EPA has made the
preliminary determination that
Kentucky’s SIP and practices adequately
demonstrate consultation with
government officials related to the 2010
1-hour SO2 NAAQS when necessary for
the consultation with government
officials element of section 110(a)(2)(J).
Public notification (127 public
notification): These requirements are
met through the following Kentucky
regulations: 401 KAR 51:001.
Definitions for 401 KAR Chapter 51; 401
KAR 51:005. Purpose and General
Provisions; 401 KAR 51:010. Attainment
Status Designations; 401 KAR 51:017.
Prevention of significant deterioration of
air quality; 401 KAR 51:052. Review of
new sources in or impacting upon
nonattainment areas; and 401 KAR
52:100. Public, Affected State, and US.
EPA Review. Additionally, Kentucky
provides air quality information to the
public via its Web site at: https://
eppcapp.ky.gov/daq/. EPA has made the
preliminary determination that
Kentucky’s SIP and practices adequately
demonstrate the Commonwealth’s
ability to provide public notification
related to the 2010 1-hour SO2 NAAQS
when necessary for the public
notification element of section
110(a)(2)(J).
PSD: With regard to the PSD element
of section 110(a)(2)(J), this requirement
may be met by a state’s confirmation in
an infrastructure SIP submission that
new major sources and major
modifications in the state are subject to
a PSD program meeting all the current
structural requirements of part C of title
I of the CAA. As discussed in more
detail above under section 110(a)(2)(C),
Kentucky’s SIP contains the relevant SIP
revisions necessary to satisfy the
structural PSD requirements of this
element of section 110(a)(2)(J). EPA has
made the preliminary determination
that Kentucky’s SIP is adequate for the
PSD element of section 110(a)(2)(J).
Visibility protection: EPA’s 2013
Guidance notes that it does not treat the
visibility protection aspects of section
110(a)(2)(J) as applicable for purposes of
the infrastructure SIP approval process.
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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, there are no newly
applicable visibility protection
obligations after the promulgation of a
new or revised NAAQS. Thus, EPA has
determined that states do not need to
address the visibility component of
110(a)(2)(J) in infrastructure SIP
submittals. As such, EPA has made the
determination that it does not need to
address the visibility protection element
of section 110(a)(2)(J) in Kentucky’s
infrastructure SIP submission related to
the 2010 1-hour SO2 NAAQS.
11. 110(a)(2)(K) Air Quality Modeling
and Submission of 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 EPA can
be made. This requirement is met
through Kentucky regulations 401 KAR
50:040. Air Quality Models and 401
KAR 50:050. Monitoring. Additionally,
Kentucky participates in a regional
effort to coordinate the development of
emissions inventories and conduct
regional modeling for several NAAQS,
including the 2010 1-hour SO2 NAAQS,
for the Southeastern states. Taken as a
whole, Kentucky’s air quality
regulations and practices demonstrate
that KDAQ has the authority to provide
relevant data for the purpose of
predicting the effect on ambient air
quality of the 2010 1-hour SO2 NAAQS.
EPA has made the preliminary
determination that Kentucky’s SIP and
practices adequately demonstrate the
Commonwealth’s ability to provide for
air quality modeling, along with
analysis of the associated data, related
to the 2010 1-hour SO2 NAAQS.
Accordingly, EPA is proposing to
approve Kentucky’s infrastructure SIP
submission with respect to section
110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: This
section requires the SIP to direct 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
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19107
by the Administrator’s approval of a fee
program under title V.
Kentucky regulation, 401 KAR 50:038
Air Emissions Fee,23 provides for the
assessment of fees necessary to fund the
state permit program. KDAQ ensures
this is sufficient for the reasonable cost
of reviewing and acting upon PSD and
NNSR permits. Additionally, Kentucky
has a fully approved title V operating
permit program at 401 KAR 52:020 Title
V permits 24 that covers the cost of
implementation and enforcement of
PSD and NNSR permits after they have
been issued. EPA has made the
preliminary determination that
Kentucky’s SIP and practices adequately
provide for permitting fees related to the
2010 1-hour SO2 NAAQS, when
necessary. Accordingly, EPA is
proposing to approve Kentucky’s
infrastructure SIP submission with
respect to section 110(a)(2)(L).
13. 110(a)(2)(M) Consultation and
Participation by Affected Local Entities:
Section 110(a)(2)(M) of the Act requires
states to provide for consultation and
participation in SIP development by
local political subdivisions affected by
the SIP. This requirement is met
through provisions in separate
implementation plans, such as the
regional haze SIP, which provide for
continued consultation with
government officials, including the
FLMs. Kentucky regulation, 401 KAR
50:066. Conformity of transportation
plans, programs, and projects, and the
interagency consultation process as
directed by Kentucky’s approved
Conformity SIP and 40 CFR 93.112
provide for consultation with local
groups. More specifically, Kentucky
adopted state-wide consultation
procedures for the implementation of
transportation conformity which
includes the development of mobile
inventories for SIP development and the
requirements that link transportation
planning and air quality planning in
nonattainment and maintenance areas.
Required partners covered by
Kentucky’s consultation procedures
include Federal, state and local
transportation and air quality agency
officials. The state and local
transportation agency officials are most
directly impacted by transportation
conformity requirements and are
required to provide public involvement
for their activities including the analysis
demonstrating how they meet
transportation conformity requirements.
Further, Kentucky’s SO2 infrastructure
23 This rule is not approved into the federally
approved SIP.
24 This rule is not approved into the federally
approved SIP.
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SIP submission notes that the following
State regulations and State statutes
provide the Commonwealth the
authority to meet the requirements of
this element: 401 KAR 50:066.
Conformity of transportation plans,
programs, and projects; 401 KAR
52:100. Public, Affected State, and US
EPA Review; and KRS Chapter 77. Air
Pollution Control. EPA has made the
preliminary determination that
Kentucky’s SIP and practices adequately
demonstrate consultation with affected
local entities related to the 2010 1-hour
SO2 NAAQS when necessary.
V. Proposed Action
With the exception of interstate
transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other
states and visibility protection
requirements of section 110(a)(2)(D)(i)(I)
and (II) (prongs 1, 2, and 4) and the
minor source program requirements of
section 110(a)(2)(C), EPA is proposing to
approve Kentucky’s April 26, 2013,
infrastructure SIP submission for the
2010 1-hour SO2 NAAQS for the above
described infrastructure SIP
requirements. EPA is proposing to
approve these portions of Kentucky’s
infrastructure SIP submission for the
2010 1-hour SO2 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.
See 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.);
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• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the 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,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 25, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–07644 Filed 4–1–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
42 CFR Part 88
[NIOSH Docket 094]
World Trade Center Health Program;
Petition 010—Peripheral Neuropathy;
Finding of Insufficient Evidence
Centers for Disease Control and
Prevention, HHS.
AGENCY:
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Denial of petition for addition of
a health condition.
ACTION:
On January 5, 2016, the
Administrator of the World Trade
Center (WTC) Health Program received
a petition (Petition 010) to add
peripheral neuropathy to the List of
WTC-Related Health Conditions (List).
Upon reviewing the scientific and
medical literature, including
information provided by the petitioner,
the Administrator has determined that
the available evidence does not have the
potential to provide a basis for a
decision on whether to add peripheral
neuropathy to the List. The
Administrator finds that insufficient
evidence exists to request a
recommendation of the WTC Health
Program Scientific/Technical Advisory
Committee (STAC), to publish a
proposed rule, or to publish a
determination not to publish a proposed
rule.
DATES: The Administrator of the WTC
Health Program is denying this petition
for the addition of a health condition as
of April 4, 2016.
FOR FURTHER INFORMATION CONTACT:
Rachel Weiss, Program Analyst, 1090
Tusculum Avenue, MS: C–46,
Cincinnati, OH 45226; telephone (855)
818–1629 (this is a toll-free number);
email NIOSHregs@cdc.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
A. WTC Health Program Statutory Authority
B. Approval to Submit Document to the
Office of the Federal Register
C. Petition 010
D. Administrator’s Determination on Petition
010
A. WTC Health Program Statutory
Authority
Title I of the James Zadroga 9/11
Health and Compensation Act of 2010
(Zadroga Act) Public Law 111–347, as
amended by Public Law 114–113, added
Title XXXIII to the Public Health
Service Act (PHS Act) 1 establishing the
WTC Health Program within the
Department of Health and Human
Services (HHS). The WTC Health
Program provides medical monitoring
and treatment benefits to eligible
firefighters and related personnel, law
enforcement officers, and rescue,
recovery, and cleanup workers who
responded to the September 11, 2001,
terrorist attacks in New York City, at the
Pentagon, and in Shanksville,
1 Title XXXIII of the PHS Act is codified at 42
U.S.C. 300mm to 300mm–61. Those portions of the
Zadroga Act found in Titles II and III of Public Law
111–347 do not pertain to the WTC Health Program
and are codified elsewhere.
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Agencies
[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Proposed Rules]
[Pages 19098-19108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07644]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0426; FRL-9944-52-Region 4]
Approval and Promulgation of Implementation Plans; Kentucky;
Infrastructure Requirements for the 2010 Sulfur Dioxide National
Ambient Air Quality Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the 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 (KDAQ), on April 26, 2013, to demonstrate that
the Commonwealth meets the infrastructure requirements of the Clean Air
Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2)
national ambient air quality standard (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. KDAQ certified that the
Kentucky SIP contains provisions that ensure the 2010 1-hour
SO2 NAAQS is implemented, enforced, and maintained in
Kentucky. EPA is proposing to determine that Kentucky's infrastructure
submission, submitted on April 26, 2013, addresses certain
infrastructure elements for the 2010 1-hour SO2 NAAQS.
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DATES: Written comments must be received on or before May 4, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0426 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at
notarianni.michele@epa.gov or the telephone number (404) 562-9031.
Table of Contents
I. Background and Overview
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 and Overview
On June 22, 2010 (75 FR 35520), EPA revised the primary
SO2 NAAQS to an hourly standard at a level of 75 parts per
billion (ppb), based on a 3-year average of the annual 99th percentile
of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1)
of the CAA, states are required to submit SIPs meeting the applicable
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS or within such shorter period as EPA may
prescribe. Section 110(a)(2) requires states to address basic SIP
elements such as requirements for monitoring, basic program
requirements and legal authority that are designed to assure attainment
and maintenance of the NAAQS. States were required to submit such SIPs
for the 2010 1-hour SO2 NAAQS to EPA no later than June 2,
2013.\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). Throughout this rulemaking, unless otherwise
indicated, the term ``401 KAR XX:XXX'' indicates that the cited
regulation has either been approved, or submitted for approval into
Kentucky's federally-approved SIP. The State statutes cited from the
Kentucky Revised Statutes (also referred to as ``KRS'') throughout
this rulemaking are not approved into the Kentucky SIP, unless
otherwise indicated.
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Today's action is proposing to approve Kentucky's infrastructure
SIP submission for the applicable requirements of the 2010 1-hour
SO2 NAAQS. With respect to the interstate transport
provisions pertaining to the contribution to nonattainment or
interference with maintenance in other states and the visibility
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and
4), and the minor source program requirements of section 110(a)(2)(C),
EPA is not proposing any action at this time regarding these
requirements. 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.
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 basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements that are the subject of this proposed rulemaking are
summarized below and in EPA's September 13, 2013, memorandum entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2).'' \2\
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\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. Today's 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): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \3\
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\3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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\4\ As mentioned above, this element is not relevant to today's
proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and Prevention of
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Significant Deterioration (PSD) and Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
110(a)(2)(L): Permitting fees
110(a)(2)(M): Consultation and 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 2010 1-hour SO2 NAAQS. The requirement for states to
make a SIP submission of this type arises out of CAA section 110(a)(1).
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 ``[e]ach 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 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 (NNSR) 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.
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\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.
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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,
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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. 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
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. 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.\13\ 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.
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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 under Clean Air Act sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHGs). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, among other things, the requirement that states
have a program to regulate minor new sources. Thus, EPA evaluates
whether the state has an EPA-approved minor NSR program and
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whether the program addresses the pollutants relevant to that NAAQS. In
the context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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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.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
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.\15\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\16\ 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.\17\
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\15\ 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).
\16\ 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).
\17\ 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
the sections 110(a)(1) and (2) ``Infrastructure'' provisions?
Kentucky's April 26, 2013, 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: Section
110(a)(2)(A) requires that each implementation plan include enforceable
emission limitations and other control measures, means, or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements. These requirements are met through Kentucky Revised
Statute (KRS) Chapter 224 Section 10-100 (KRS 224.10-100), which
provides the KDAQ the authority to administer all rules, regulations,
and orders promulgated under Chapter 224, and to provide for the
prevention, abatement, and control of all water, land, and air
pollution.
[[Page 19103]]
KDAQ cited to chapters and associated Kentucky Administrative
Regulations (KAR) under Title 401 to demonstrate that the Commonwealth
meets the requirements of this element, including the following:
Chapter 50 General Administrative Procedures: 401 KAR
50:010. Definitions for 401 KAR Chapter 50; 401 KAR 50:012. General
application; 401 KAR 50:015. Documents incorporated by reference; 401
KAR 50:020. Air quality control regions; 401 KAR 50:025. Classification
of counties; 401 KAR 50:040. Air quality models; 401 KAR 50:042. Good
engineering practice stack height; 401 KAR 50:045. Performance tests;
401 KAR 50:047. Test procedures for capture efficiency; 401 KAR 50:050.
Monitoring; 401 KAR 50:055. General compliance requirements; and 401
KAR 50:060. Enforcement.
Chapter 51 Attainment and Maintenance of the National
Ambient Air Quality Standards: 401 KAR 51:001. Definitions for 401 KAR
Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR
51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of
significant deterioration of air quality; 401 KAR 51:052. Review of new
sources in or impacting upon nonattainment areas.
Chapter 52 Permits, Registrations, and Prohibitory Rules:
401 KAR 52:001. Definitions for 401 KAR Chapter 52; 401 KAR 52:020.
Title V permits; \18\ 401 KAR 52:030. Federally-enforceable permits for
nonmajor sources; 401 KAR 52:090. Prohibitorv rule for hot mix asphalt
plants; 401 KAR 53:005. General provisions; 401 KAR 53:010. Ambient air
quality standards.
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\18\ This rule is not approved into Kentucky's federally-
approved SIP.
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Collectively these regulations establish enforceable emissions
limitations and other control measures, means or techniques, for
activities that contribute to SO2 concentrations in the
ambient air and provide authority for KDAQ to establish such limits and
measures as well as schedules for compliance to meet the applicable
requirements of the CAA. EPA has made the preliminary determination
that the provisions contained in these regulations, and Kentucky's
statute are adequate for enforceable emission limitations and other
control measures, means, or techniques, as well as schedules and
timetables for compliance for the 2010 1-hour SO2 NAAQS in
the Commonwealth.
In this action, EPA is not proposing to approve or disapprove any
existing Commonwealth provisions with regard to excess emissions during
SSM 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.\19\
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\19\ On June 12, 2015, EPA published 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.'' See 80 FR 33840.
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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. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. 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: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. These
requirements are met through KRS 224.10-100 (22), which provides KDAQ
the authority to require the installation, maintenance, and use of
equipment, devices, or tests and methodologies to monitor the nature
and amount of any substance emitted into the ambient air and to provide
the information to the cabinet.
KDAQ cites the following regulations to demonstrate that the
Commonwealth meets the requirements of this element: 401 KAR 50:050.
Monitoring; 401 KAR 51:017. Prevention of significant deterioration of
air quality; and 401 KAR 51:052. Review of new sources in or impacting
upon nonattainment areas; 401 KAR 53:005. General provisions; 401 KAR
53:010. Ambient air quality standards.
These SIP-approved rules and Kentucky's statute, along with
Kentucky's Ambient Air Monitoring Network Plan, 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. 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.\20\ KDAQ's monitoring network
plan was submitted on July 1, 2015, and approved by EPA on October 28,
2015. Kentucky's approved monitoring network plan can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0426. 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 2010 1-hour SO2 NAAQS.
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\20\ 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) Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources: 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). These requirements are met through 401 KAR 50:060.
Enforcement; 401 KAR 51:017. Prevention of significant deterioration of
air quality; and 401 KAR 51:052. Review of new sources in or impacting
upon nonattainment areas. Collectively, these regulations enable KDAQ
to regulate sources contributing to the 2010 1-hour SO2
NAAQS. EPA's analysis of how these provisions of Kentucky's SIP address
each sub-element (with the exception of the minor source program
requirements, as set forth below) is described below.
Enforcement: KDAQ's SIP-approved regulation, 401 KAR 50:060.
Enforcement, provides for enforcement of SO2 emission limits
and control measures through permit and compliance schedule
modifications and revocations, and authorizes administrative penalties
and injunctive relief, citing to statutory civil penalty and injunctive
relief provisions of KRS
[[Page 19104]]
224.99-010. EPA has made the preliminary determination that Kentucky's
SIP is adequate for enforcement related to the 2010 1-hour
SO2 NAAQS.
PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a
particular NAAQS demonstrate that the state has a complete PSD
permitting program in place covering the structural PSD requirements
for all regulated NSR pollutants. A state's PSD permitting program is
complete for this sub-element (and prong 3 of D(i) and J related to
PSD) if EPA has already approved or is simultaneously approving the
state's SIP with respect to all structural PSD requirements that are
due under the EPA regulations or the CAA on or before the date of the
EPA's proposed action on the infrastructure SIP submission. For the
2010 1-hour SO2 NAAQS, Kentucky's authority to regulate new
and modified sources to assist in the protection of air quality in
attainment or unclassifiable areas is established in KAR Chapter 51--
Attainment and Maintenance of the National Ambient Air Quality
Standards, which describes the permit requirements for new major
sources or major modifications of existing sources in areas classified
as attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii)
of the CAA. These requirements are designed to ensure that sources in
areas attaining the NAAQS at the time of designations prevent any
significant deterioration in air quality. Chapter 51 also establishes
the permitting requirements for areas in or around nonattainment areas
and provides the Commonwealth's statutory authority to enforce
regulations relating to attainment and maintenance of the NAAQS.
Kentucky's infrastructure SIP submission demonstrates that new
major sources and major modifications in areas of the Commonwealth
designated attainment or unclassifiable for the specified NAAQS are
subject to a federally-approved PSD permitting program meeting all the
current structural requirements of part C of title I of the CAA to
satisfy the infrastructure SIP PSD elements.\21\ EPA has made the
preliminary determination that Kentucky's SIP is adequate for PSD
permitting for major sources related to the 2010 1-hour SO2
NAAQS.
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\21\ For more information concerning how the Kentucky
infrastructure SIP submission currently meets applicable structural
PSD program requirements, see the technical support document in the
docket for today's rulemaking.
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Regulation of minor sources and minor 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 2010 1-hour SO2 NAAQS. EPA is not proposing any action
in this rulemaking related to the regulation of minor sources and minor
modifications under section 110(a)(2)(C) and will consider these
requirements in relation to Kentucky's 2010 1-hour SO2 NAAQS
infrastructure submission in a separate rulemaking.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
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 has 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 from
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'').
110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2) because Kentucky's 2010 1-hour SO2 NAAQS infrastructure
submission did not address prongs 1 and 2.
110(a)(2)(D)(i)(II)--prong 3: With regard to section
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this
requirement may be met by a state's confirmation in an infrastructure
SIP submission that new major sources and major modifications in the
state are subject to: A PSD program meeting all the current structural
requirements of part C of title I of the CAA, or (if the state contains
a nonattainment area that has the potential to impact PSD in another
state) to a NNSR program. As discussed in more detail above under
section 110(a)(2)(C), Kentucky's SIP contains the relevant SIP
revisions necessary to satisfy the structural PSD requirements of prong
3. Kentucky's SIP-approved NNSR program is found at 401 KAR 51:052.
Review of new sources in or impacting upon nonattainment areas. EPA has
made the preliminary determination that Kentucky's SIP is adequate for
interstate transport for permitting of major sources and major
modifications related to the 2010 1-hour SO2 NAAQS for
section 110(a)(2)(D)(i)(II) (prong 3).
110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to visibility protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in
relation to Kentucky's 2010 1-hour SO2 NAAQS infrastructure
submission in a separate rulemaking.
5. 110(a)(2)(D)(ii) Interstate and International Transport
Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include
provisions ensuring compliance with sections 115 and 126 of the Act,
relating to interstate and international pollution abatement.
Regulation 401 KAR 51:010. Attainment Status Designations designates
the status of all areas of the Commonwealth of Kentucky with regard to
attainment of the NAAQS. Regulation 401 KAR 51:017. Prevention of
significant deterioration of air quality and Regulation 401 KAR 51:052.
Review of new sources in or impacting upon nonattainment areas, Section
1, require Kentucky to provide notice to nearby states that may be
affected by proposed major source modifications. These regulations cite
to Federal notification requirements under 40 CFR Sections 51.166 and
52.21, and to 401 KAR 52:100. Public, affected state, and US. EPA
review, Section 6, which requires that public notice for permit actions
be provided to affected states. Additionally, Kentucky does not have
any pending obligation under sections 115 and 126 of the CAA. EPA has
made the preliminary determination that Kentucky's SIP is adequate for
ensuring compliance with the applicable requirements relating to
interstate and international pollution abatement for the 2010 1-hour
SO2 NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
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
[[Page 19105]]
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 submission as
meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and
(iii).
In support of EPA's proposal to approve elements 110(a)(2)(E)(i)
and (iii), KDAQ's infrastructure submission demonstrates that it is
responsible for promulgating rules and regulations for the NAAQS,
emissions standards, general policies, a system of permits, fee
schedules for the review of plans, and other planning needs. With
respect to having the necessary funding and authority to implement the
Kentucky SIP, Kentucky regulation, 401 KAR 50:038. Air Emissions Fee,
and the following State statutes support sub-elements (i) and (iii):
KRS 224.10-100. Powers and Duties of the Cabinet and KRS 224.10-020.
Departments within the cabinet--Offices and divisions within the
departments--Appointments. As evidence of the adequacy of KDAQ's
resources with respect to sub-elements (i) and (iii), EPA submitted a
letter to KDAQ on March 12, 2015, outlining 105 grant commitments and
current status of these commitments for fiscal year 2014. The letter
EPA submitted to KDAQ can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2014-0426. Annually, states update these
grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. There were
no outstanding issues in relation to the SIP for fiscal year 2014,
therefore, KDAQ's grants were finalized and closed out. In addition,
the requirements of 110(a)(2)(E)(i) and (iii) are met when EPA performs
a completeness determination for each SIP submittal. This determination
ensures that each submittal provides evidence that adequate personnel,
funding, and legal authority under state law has been used to carry out
the state's implementation plan and related issues. KDAQ's authority is
included in all prehearings and final SIP submittal packages for
approval by EPA. EPA has made the preliminary determination that
Kentucky has adequate resources for implementation of the 2010 1-hour
SO2 NAAQS. Accordingly, EPA is proposing to approve
Kentucky's infrastructure SIP submission with respect to section
110(a)(2)(E)(i) and (iii).
Section 110(a)(2)(E)(ii) requires that Kentucky comply with section
128 of the CAA. Section 128 requires at 128(a)(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 128(a)(2) any potential
conflicts of interest by such board or body, or the head of an
executive agency with similar, powers be adequately disclosed. 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 KDAQ. 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), KDAQ's
SIP has been updated. On October 3, 2012, EPA took final action to
approve incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and
Chapters 224.10-020 and 224.10-100 into the SIP to address the conflict
of interest requirements of section 128. See 77 FR 60307. These SIP-
approved state statutes establish the powers and duties of the cabinet,
departments within the cabinet, and offices and divisions within such
departments (Chapters 224.10-020 and 224.10-100), and support sub-
element (ii) by requiring adequate disclosures of potential conflicts
(KRS 11A.020. Public servant prohibited from certain conduct--
Exception--Disclosure of personal or private interest) and otherwise
ensuring that public officers and servants do not engage in activities
that may present a conflict of interest (KRS 11A.030 Considerations in
determination to abstain from action on official decision--Advisory
opinion; and KRS 11A.040 Acts prohibited for public servant or
officer--Exception). With the incorporation of these regulations and
statutes 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
requirements of section 110(a)(2)(E)(ii) with respect to infrastructure
SIP requirements. Thus, EPA is proposing approval of KDAQ's
infrastructure SIP submission for the 2010 1-hour SO2 NAAQS
with respect to section 110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing
(i) the installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. The Kentucky infrastructure
submission describes how the major source and minor source emission
inventory programs collect emission data throughout the Commonwealth
and ensure the quality of such data. Kentucky meets these requirements
through Chapter 50 General Administrative Procedures, specifically 401
KAR 50:050 Monitoring. 401 KAR 50:050, Section 1, Monitoring Records
and Reporting, states that the cabinet may require a facility to
install, use, and maintain stack gas and ambient air monitoring
equipment and to establish and maintain records, and make periodic
emission reports at intervals prescribed by the cabinet. 401 KAR 50:050
Monitoring, Section 1, Monitoring, Records, and Reporting, establishes
the requirements for the installation, use, and maintenance of stack
gas and ambient air monitoring equipment, and authorizes the cabinet to
require the owner or operator of any affected facility to establish and
maintain records for this equipment and make periodic emission reports
at intervals prescribed by the cabinet. Also, KRS 224.10-100 (23)
requires that any person engaged in any operation regulated pursuant to
this chapter file with the cabinet reports containing information as to
location, size, height, rate of emission or discharge, and composition
of any substance discharged or emitted into the ambient air or into the
waters or onto the land of the Commonwealth, and such other information
the cabinet may require. In addition, EPA is unaware of any provision
preventing the use of credible evidence in the Kentucky SIP.\22\
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\22\ ``Credible Evidence,'' makes allowances for owners and/or
operators to utilize ``any credible evidence or information
relevant'' to demonstrate compliance with applicable requirements if
the appropriate performance or compliance test had been performed,
for the purpose of submitting compliance certification and can be
used to establish whether or not an owner or operator has violated
or is in violation of any rule or standard.
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Additionally, 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
[[Page 19106]]
Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (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--nitrogen oxides, SO2,
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 NEI on
November 6, 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 related to the
2010 1-hour SO2 NAAQS. Accordingly, EPA is proposing to
approve Kentucky's infrastructure SIP submission with respect to
section 110(a)(2)(F).
8. 110(a)(2)(G) Emergency Powers: 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 identifies air pollution emergency
episodes and preplanned abatement strategies as outlined in the
following Kentucky regulations in Chapter 55 Emergency Episodes,
specifically: 401 KAR 55:005. Significant harm criteria, 401 KAR
55:010. Episode Criteria, and 401 KAR 55:015. Episode Declaration. 401
KAR 55:005. Significant Harm Criteria, Section 1, Purpose, defines
those levels of pollutant concentration which must be prevented in
order to avoid significant harm to the health of persons. 401 KAR
55:010. Episodic Criteria, defines those levels of pollutant
concentrations which justify the proclamation of an air pollution
alert, air pollution warning, an air pollution emergency. 401 KAR
55:015. Episode Declaration, provides 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 areas for which an episode level has been declared.
In addition, KRS 224.10-100 Powers and duties of cabinet and KRS
224.10-410 Order for discontinuance, abatement, or alleviation of
condition or activity without hearing--Subsequent hearing, establish
the authority for Kentucky's secretary to issue orders to person(s) for
discontinuance, abatement, or alleviation of any condition or activity
without hearing because the condition or activity presents a danger to
the health or welfare of the people of the state, and for the cabinet
to require adoption of any remedial measures deemed necessary. EPA has
made the preliminary determination that Kentucky's SIP, and state laws
are adequate for emergency powers related to the 2010 1-hour
SO2 NAAQS. Accordingly, EPA is proposing to approve
Kentucky's infrastructure SIP submission with respect to section
110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary,
requires each SIP to provide for revisions of such plan (i) as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. As previously discussed, KDAQ is
responsible for adopting air quality rules and revising SIPs as needed
to attain or maintain the NAAQS. Kentucky has 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.
KDAQ 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 KDAQ
the broad authority to implement the CAA, and as such, provides KDAQ
the authority to prepare and develop, after proper study, a
comprehensive plan for the prevention of air pollution. These statutes
also provide KDAQ the ability and authority to respond to calls for SIP
revisions, and KDAQ has provided a number of SIP revisions over the
years for implementation of the NAAQS. Additionally, 401 KAR 53:010
outlines the ambient air quality standards necessary for the protection
of the public health, the general welfare, and the property and people
in the Commonwealth and states that within 60 days of promulgation or
revision of any NAAQS by EPA, the cabinet will initiate a process to
promulgate or review this administrative regulation. 401 KAR 51:010.
Attainment Status Designations provides provisions for the Cabinet to
review applicable data and submit to EPA proposed revisions to the list
of attainment-nonattainment areas. EPA has made the preliminary
determination that Kentucky adequately demonstrates a commitment to
provide future SIP revisions related to the 2010 1-hour SO2
NAAQS when necessary. Accordingly, EPA is proposing to approve
Kentucky's infrastructure SIP submission for the 2010 1-hour
SO2 NAAQS with respect to section 110(a)(2)(H).
10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve Kentucky's infrastructure SIP submission for the 2010 1-hour
SO2 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, PSD, and visibility. EPA's
rationale for each sub-element 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 carrying out NAAQS implementation requirements
pursuant to section 121 relative to consultation. This requirement is
met through provisions in separate implementation plans, such as the
Regional Haze SIP, which provide for continued consultation with
government officials, including the Federal Land Managers (FLMs).
Kentucky adopted consultation procedures in coordination with the
transportation partners in the Commonwealth, for the implementation of
transportation conformity, which includes the development of mobile
inventories for SIP development. Required partners covered by
Kentucky's consultation procedures include Federal, state and local
transportation and air quality agency officials. Implementation of
transportation conformity as outlined in the consultation procedures
requires KDAQ to consult with Federal, state and local transportation
and air quality agency officials on the development of motor vehicle
emissions budgets. Also,
[[Page 19107]]
KDAQ notes in its April 26, 2013, SIP submission that the following
Kentucky regulations provide the Commonwealth the authority to meet
this requirement: 401 KAR 50:055. General compliance requirements; 401
KAR 50:060. Enforcement; 401 KAR 50:065. Conformity of general federal
actions; 401 KAR 50:066. Conformity of Transportation Plans, Programs,
and Projects; 401 KAR 51:017. Prevention of Significant Deterioration
of Air Quality; and 401 KAR 51:052. Review of new sources in or
impacting upon nonattainment areas. EPA has made the preliminary
determination that Kentucky's SIP and practices adequately demonstrate
consultation with government officials related to the 2010 1-hour
SO2 NAAQS when necessary for the consultation with
government officials element of section 110(a)(2)(J).
Public notification (127 public notification): These requirements
are met through the following Kentucky regulations: 401 KAR 51:001.
Definitions for 401 KAR Chapter 51; 401 KAR 51:005. Purpose and General
Provisions; 401 KAR 51:010. Attainment Status Designations; 401 KAR
51:017. Prevention of significant deterioration of air quality; 401 KAR
51:052. Review of new sources in or impacting upon nonattainment areas;
and 401 KAR 52:100. Public, Affected State, and US. EPA Review.
Additionally, Kentucky provides air quality information to the public
via its Web site at: https://eppcapp.ky.gov/daq/. EPA has made the
preliminary determination that Kentucky's SIP and practices adequately
demonstrate the Commonwealth's ability to provide public notification
related to the 2010 1-hour SO2 NAAQS when necessary for the
public notification element of section 110(a)(2)(J).
PSD: With regard to the PSD element of section 110(a)(2)(J), this
requirement may be met by a state's confirmation in an infrastructure
SIP submission that new major sources and major modifications in the
state are subject to a PSD program meeting all the current structural
requirements of part C of title I of the CAA. As discussed in more
detail above under section 110(a)(2)(C), Kentucky's SIP contains the
relevant SIP revisions necessary to satisfy the structural PSD
requirements of this element of section 110(a)(2)(J). EPA has made the
preliminary determination that Kentucky's SIP is adequate for the PSD
element of section 110(a)(2)(J).
Visibility protection: EPA's 2013 Guidance notes that it does not
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, there are no newly
applicable visibility protection obligations after the promulgation of
a new or revised NAAQS. Thus, EPA has determined that states do not
need to address the visibility component of 110(a)(2)(J) in
infrastructure SIP submittals. As such, EPA has made the determination
that it does not need to address the visibility protection element of
section 110(a)(2)(J) in Kentucky's infrastructure SIP submission
related to the 2010 1-hour SO2 NAAQS.
11. 110(a)(2)(K) Air Quality Modeling and Submission of 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 EPA can be made. This requirement is met through Kentucky
regulations 401 KAR 50:040. Air Quality Models and 401 KAR 50:050.
Monitoring. Additionally, Kentucky participates in a regional effort to
coordinate the development of emissions inventories and conduct
regional modeling for several NAAQS, including the 2010 1-hour
SO2 NAAQS, for the Southeastern states. Taken as a whole,
Kentucky's air quality regulations and practices demonstrate that KDAQ
has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 2010 1-hour
SO2 NAAQS. EPA has made the preliminary determination that
Kentucky's SIP and practices adequately demonstrate the Commonwealth's
ability to provide for air quality modeling, along with analysis of the
associated data, related to the 2010 1-hour SO2 NAAQS.
Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP
submission with respect to section 110(a)(2)(K).
12. 110(a)(2)(L) Permitting Fees: This section requires the SIP to
direct 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.
Kentucky regulation, 401 KAR 50:038 Air Emissions Fee,\23\ provides
for the assessment of fees necessary to fund the state permit program.
KDAQ ensures this is sufficient for the reasonable cost of reviewing
and acting upon PSD and NNSR permits. Additionally, Kentucky has a
fully approved title V operating permit program at 401 KAR 52:020 Title
V permits \24\ that covers the cost of implementation and enforcement
of PSD and NNSR permits after they have been issued. EPA has made the
preliminary determination that Kentucky's SIP and practices adequately
provide for permitting fees related to the 2010 1-hour SO2
NAAQS, when necessary. Accordingly, EPA is proposing to approve
Kentucky's infrastructure SIP submission with respect to section
110(a)(2)(L).
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\23\ This rule is not approved into the federally approved SIP.
\24\ This rule is not approved into the federally approved SIP.
---------------------------------------------------------------------------
13. 110(a)(2)(M) Consultation and Participation by Affected Local
Entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. This requirement is met
through provisions in separate implementation plans, such as the
regional haze SIP, which provide for continued consultation with
government officials, including the FLMs. Kentucky regulation, 401 KAR
50:066. Conformity of transportation plans, programs, and projects, and
the interagency consultation process as directed by Kentucky's approved
Conformity SIP and 40 CFR 93.112 provide for consultation with local
groups. More specifically, Kentucky adopted state-wide consultation
procedures for the implementation of transportation conformity which
includes the development of mobile inventories for SIP development and
the requirements that link transportation planning and air quality
planning in nonattainment and maintenance areas. Required partners
covered by Kentucky's consultation procedures include Federal, state
and local transportation and air quality agency officials. The state
and local transportation agency officials are most directly impacted by
transportation conformity requirements and are required to provide
public involvement for their activities including the analysis
demonstrating how they meet transportation conformity requirements.
Further, Kentucky's SO2 infrastructure
[[Page 19108]]
SIP submission notes that the following State regulations and State
statutes provide the Commonwealth the authority to meet the
requirements of this element: 401 KAR 50:066. Conformity of
transportation plans, programs, and projects; 401 KAR 52:100. Public,
Affected State, and US EPA Review; and KRS Chapter 77. Air Pollution
Control. EPA has made the preliminary determination that Kentucky's SIP
and practices adequately demonstrate consultation with affected local
entities related to the 2010 1-hour SO2 NAAQS when
necessary.
V. Proposed Action
With the exception of interstate transport provisions pertaining to
the contribution to nonattainment or interference with maintenance in
other states and visibility protection requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the minor source
program requirements of section 110(a)(2)(C), EPA is proposing to
approve Kentucky's April 26, 2013, infrastructure SIP submission for
the 2010 1-hour SO2 NAAQS for the above described
infrastructure SIP requirements. EPA is proposing to approve these
portions of Kentucky's infrastructure SIP submission for the 2010 1-
hour SO2 NAAQS because these aspects of the submission are
consistent with section 110 of the CAA.
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. See 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 CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the 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, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 25, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-07644 Filed 4-1-16; 8:45 am]
BILLING CODE 6560-50-P