Air Plan Approval; Kentucky; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone NAAQS, 17131-17134 [2017-07028]
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[FR Doc. 2017–07032 Filed 4–7–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0048; FRL–9960–54–
Region 4]
Air Plan Approval; Kentucky;
Nonattainment New Source Review
Requirements for the 2008 8-Hour
Ozone NAAQS
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving the portion
of the State Implementation Plan (SIP)
revision submitted by the
Commonwealth of Kentucky, through
the Energy and Environment Cabinet’s
Division of Air Quality on August 26,
2016, regarding the nonattainment new
source review (NNSR) requirements for
the 2008 8-hour ozone national ambient
air quality standards (NAAQS) for the
Kentucky portion of the CincinnatiHamilton, Ohio-Kentucky-Indiana 2008
8-hour ozone nonattainment area
(hereinafter referred to as the
‘‘Cincinnati-Hamilton, OH–KY–IN
Area’’ or ‘‘Area’’). The Area consists of
Butler, Clermont, Clinton, Hamilton,
and Warren Counties in Ohio; portions
of Boone, Campbell, Kenton Counties in
Kentucky; and a portion of Dearborn
County in Indiana. This action is being
taken pursuant to the Clean Air Act
(CAA or Act) and its implementing
regulations.
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SUMMARY:
This direct final rule is effective
June 9, 2017 without further notice,
unless EPA receives adverse comment
by May 10, 2017. If EPA receives such
comments, it will publish a timely
withdrawal of the direct final rule in the
DATES:
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Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2017–0048 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://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Andres Febres of the Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr.
Febres can be reached via telephone at
(404) 562–8966 or via electronic mail at
febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 12, 2008, EPA promulgated
a revised 8-hour ozone NAAQS of 0.075
parts per million (ppm). See 73 FR
16436 (March 27, 2008). Under EPA’s
regulations at 40 CFR 50.15, the 2008 8-
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hour ozone NAAQS is attained when
the 3-year average of the annual fourthhighest daily maximum 8-hour average
ambient air quality ozone
concentrations is less than or equal to
0.075 ppm. Ambient air quality
monitoring data for the 3-year period
must meet a data completeness
requirement. The ambient air quality
monitoring data completeness
requirement is met when the average
percent of days with valid ambient
monitoring data is greater than 90
percent, and no single year has less than
75 percent data completeness as
determined in appendix I of part 50.
Upon promulgation of a new or
revised NAAQS, the CAA requires EPA
to designate as nonattainment any area
that is violating the NAAQS based on
the three most recent years of ambient
air quality data at the conclusion of the
designation process. As part of the
designations process for the 2008 8-hour
ozone NAAQS, the CincinnatiHamilton, OH–KY–IN Area was
designated as a marginal ozone
nonattainment area, effective July 20,
2012. See 77 FR 30088 (May 21, 2012).
On March 6, 2015, EPA issued a final
rule entitled, ‘‘Implementation of the
2008 National Ambient Air Quality
Standards for Ozone: State
Implementation Plan Requirements’’
(SIP Requirements Rule), which
establishes the requirements that state,
tribal, and local air quality management
agencies must meet as they develop
implementation plans for areas where
air quality exceeds the 2008 8-hour
ozone NAAQS.1 See 80 FR 12264. Areas
1 The SIP Requirements Rule addresses a range of
nonattainment area SIP requirements for the 2008
8-hour ozone NAAQS, including requirements
pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control
technology, reasonably available control measures,
major new source review, emission inventories, and
the timing of SIP submissions and of compliance
with emission control measures in the SIP. The
Rule also revokes the 1997 8-hour ozone NAAQS
and establishes anti-backsliding requirements.
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that were designated as marginal ozone
nonattainment areas were required to
attain the 2008 8-hour ozone NAAQS no
later than July 20, 2015 (3 years after the
effective date of designation).2 See 40
CFR 51.1103.
Based on the nonattainment
designation for the 2008 8-hour ozone
standard, Kentucky was required to
develop a SIP revision addressing
certain CAA requirements for the
Kentucky portion of the Area. On
August 26, 2016, the Commonwealth of
Kentucky submitted a SIP revision
addressing, among other things, NNSR
requirements for the 2008 8-hour ozone
NAAQS for the Kentucky Area. EPA’s
analysis of how this SIP revision
addresses the NNSR requirements for
the 2008 8-hour ozone NAAQS is
provided below.
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II. Analysis of Kentucky’s
Nonattainment New Source Review
Requirements
The minimum SIP requirements for
NNSR permitting programs for the 2008
8-hour ozone NAAQS are located in 40
CFR 51.165. See 40 CFR 51.1114. These
NNSR program requirements include
those promulgated in the ‘‘Phase 2
Rule’’ implementing the 1997 8-hour
ozone NAAQS (70 FR 71612) and the
SIP Requirements Rule for
implementing the 2008 8-hour ozone
NAAQS (80 FR 12264). Under the Phase
2 Rule, the SIP for each ozone
nonattainment area must contain
nonattainment NSR provisions that: Set
major source thresholds for nitrogen
oxides (NOX) and volatile organic
compounds (VOC) pursuant to 40 CFR
51.165(a)(1)(iv)(A)(1)(i)–(iv) and
(a)(1)(iv)(A)(2); classify physical
changes as a major source if the change
would constitute a major source by itself
pursuant to 40 CFR
51.165(a)(1)(iv)(A)(3); consider any
significant net emissions increase of
NOX as a significant net emissions
increase for ozone pursuant to 40 CFR
51.165(a)(1)(v)(E); consider certain
increases of VOC emissions in extreme
ozone nonattainment areas as a
significant net emissions increase and a
major modification for ozone pursuant
to 40 CFR 51.165(a)(1)(v)(F); set
significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40
2 On May 4, 2016 (81 FR 26697), EPA published
its determination that the Area had attained the
2008 8-hour ozone NAAQS by the attainment
deadline. However, an attainment determination is
not equivalent to a redesignation under CAA
section 107(d)(3). The Area will remain
nonattainment for the 2008 8-hour ozone NAAQS
and subject to the NNSR requirements for that
NAAQS until such time as EPA determines that the
Area meets the requirements for redesignation to
attainment.
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CFR 51.165(a)(1)(x)(A)–(C) and (E);
contain provisions for emissions
reductions credits pursuant to 40 CFR
51.165(a)(3)(ii)(C)(1) and (2); provide
that the requirements applicable to VOC
also apply to NOX pursuant to 40 CFR
51.165(a)(8); and set offset ratios for
VOC and NOX pursuant to 40 CFR
51.165(a)(9)(i)–(iii) (renumbered as
(a)(9)(ii)–(iv) under the SIP
Requirements Rule for the 2008 8-hour
ozone NAAQS). Under the SIP
Requirements Rule for the 2008 8-hour
ozone NAAQS, the SIP for each ozone
nonattainment area designated
nonattainment for the 2008 8-hour
ozone NAAQS and designated
nonattainment for the 1997 8-hour
ozone NAAQS on April 6, 2015, must
also contain NNSR provisions that
include the anti-backsliding
requirements at 40 CFR 51.1105. See 40
CFR 51.165(a)(12).
Kentucky has a longstanding and fully
implemented NNSR program (found at
401 Kentucky Administrative
Regulation (KAR) 51:052) that
establishes air quality permitting
requirements for the construction or
modification of major stationary sources
located within, or impacting, areas
designated as nonattainment. EPA last
approved revisions to the SIP-approved
version of Kentucky’s NNSR rule on
September 15, 2010. Those revisions,
submitted to EPA in a February 5, 2010
SIP revision, addressed the NNSR
requirements in the Phase 2 Rule for the
1997 8-hour ozone NAAQS. In
approving the revisions to Kentucky’s
NNSR rule, EPA found the revisions to
be in accordance with the changes in
the federal NSR program for the 1997 8hour ozone NAAQS.3 See 75 FR 55988.
In Kentucky’s August 26, 2016 SIP
revision, the Commonwealth states that
its NNSR program is applicable to the
2008 8-hour ozone NAAQS and cites to
the program as containing acceptable
provisions to provide for new source
review in the Kentucky portion of the
Area.
The version of 401 KAR 52:052 that
is contained in the current SIP has not
changed since the 2010 rulemaking.
This version of the rule covers the
Kentucky portion of the Area and is
adequate to meet all applicable NNSR
requirements for the 2008 8-hour ozone
NAAQS. The Phase 2 requirements for
8-hour ozone nonattainment areas
classified as serious or above remain
inapplicable because the Area is
3 In that action, EPA determined that the SIP
revision was consistent with changes to federal NSR
requirements (40 CFR 51.165 and 51.166 and the
Phase II Rule) relating to the incorporation of
nitrogen oxides as an ozone precursor. See 75 FR
55988 (September 15, 2010).
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classified as a marginal nonattainment
area for the 2008 8-hour NAAQS, and
the anti-backsliding requirements added
in the SIP Requirements Rule for
implementing the 2008 8-hour ozone
NAAQS are inapplicable because the
Kentucky portion of the Area was
redesignated to attainment for the 1997
8-hour ozone NAAQS in 2010.4 As
stated above, the anti-backsliding
requirements for NNSR in the SIP
Requirements Rule only apply to areas
designated nonattainment for the 2008
8-hour ozone NAAQS and designated
nonattainment for the 1997 8-hour
ozone NAAQS on April 6, 2015.
III. Final Action
EPA is approving the portion of
Kentucky’s August 26, 2016, SIP
revision addressing the NNSR
requirements for the 2008 8-hour ozone
NAAQS for the Kentucky portion of the
Cincinnati-Hamilton, OH–KY–IN Area.
EPA has concluded that the
Commonwealth’s submission fulfills the
40 CFR 51.1114 revision requirement
and meets the requirements of CAA
section 110 and the minimum SIP
requirements of 40 CFR 51.165.
EPA is publishing this rule without
prior proposal because the Agency
views this as a noncontroversial
submittal and anticipates no adverse
comments. However, in the proposed
rules section of this Federal Register
publication, EPA is publishing a
separate document that will serve as the
proposal to approve the SIP revision
should adverse comments be filed. This
rule will be effective June 9, 2017
without further notice unless the
Agency receives adverse comments by
May 10, 2017.
If EPA receives such comments, then
EPA will publish a document
withdrawing the final rule and
informing the public that the rule will
not take effect. All public comments
received will then be addressed in a
subsequent final rule based on the
proposed rule. EPA will not institute a
second comment period. Parties
interested in commenting should do so
at this time. If no such comments are
received, the public is advised that this
rule will be effective on June 9, 2017
and no further action will be taken on
the proposed rule.
4 See 75 FR 47218 (August 5, 2010). The 1997 8hour ozone NAAQS was revoked with the 2008 8hour ozone NAAQS SIP Requirements Rule, and as
discussed above, the anti-backsliding requirements
for the 1997 8-hour ozone NAAQS only apply for
areas that were nonattainment for the 1997 standard
on the effective date of the revocation (April 6,
2015). See 80 FR 12264 (March 6, 2015).
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IV. 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 action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive 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).
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.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by June 9, 2017. Filing a petition
for reconsideration by the Administrator
of this final rule does not affect the
finality of this action for the purposes of
judicial review nor does it extend the
time within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. Parties with objections to this
direct final rule are encouraged to file a
comment in response to the parallel
notice of proposed rulemaking for this
action published in the proposed rules
section of this Federal Register, rather
than file an immediate petition for
judicial review of this direct final rule,
so that EPA can withdraw this direct
final rule and address the comment in
the proposed rulemaking. This action
may not be challenged later in
proceedings to enforce its requirements.
See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: March 15, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart S—Kentucky
2. Section 52.920(e) is amended by
adding an entry for ‘‘2008 8-hour ozone
NAAQS Nonattainment New Source
Review Requirements for the Kentucky
Portion of the Cincinnati-Hamilton OH–
KY–IN Area’’ at the end of the table to
read as follows:
■
§ 52.920
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS
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Name of non-regulatory SIP
provision
Applicable geographic or nonattainment area
*
*
2008 8-hour ozone NAAQS Nonattainment New Source Review
Requirements for the Kentucky
Portion of the Cincinnati-Hamilton OH–KY–IN Area.
*
Boone, Campbell and Kenton
Counties (part) (Kentucky portion of the Cincinnati-Hamilton,
OH–KY–IN Area).
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17134
Federal Register / Vol. 82, No. 67 / Monday, April 10, 2017 / Rules and Regulations
[FR Doc. 2017–07028 Filed 4–7–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2016–0705; FRL–9960–81–
Region 5]
Air Plan Approval; Michigan;
Transportation Conformity Procedures
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision for
carbon monoxide (CO) and particulate
matter (PM2.5), submitted by the State of
Michigan on October 3, 2016. The
purpose of this revision is to establish
transportation conformity criteria and
procedures related to interagency
consultation, and enforceability of
certain transportation related control
and mitigation measures.
DATES: This direct final rule is effective
June 9, 2017, unless EPA receives
adverse comments by May 10, 2017. If
adverse comments are received, EPA
will publish a timely withdrawal of the
direct final rule in the Federal Register
informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2016–0705 at https://
www.regulations.gov or via email to
blakley.pamela@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, 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, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
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SUMMARY:
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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:
Michael Leslie, Environmental
Engineer, Control Strategies Section, Air
Programs Branch (AR 18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–6680,
leslie.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What is the background for this action?
II. What is EPA’s analysis of Michigan’s SIP
revision?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background for this
action?
Transportation conformity is required
under section 176(c) of the Clean Air
Act (Act) to ensure that transportation
planning activities are consistent with
(‘‘conform to’’) air quality planning
goals in nonattainment/maintenance
areas. The transportation conformity
regulation is found in 40 CFR part 93
and provisions related to transportation
conformity SIPs are found in 40 CFR
51.390. Transportation conformity
applies to areas that are designated
nonattainment or maintenance for the
transportation related criteria pollutants
listed in 40 CFR 93.102(b)(1). Michigan
currently has maintenance areas for CO
and PM2.5.
EPA originally promulgated the
Federal transportation conformity
criteria and procedures (‘‘Transportation
Conformity Rule’’) on November 24,
1993 (58 FR 62188). On August 10,
2005, the ‘‘Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A
Legacy for Users’’ (SAFETEA–LU) was
signed into law. SAFETEA–LU revised
section 176(c) of the Act transportation
conformity provisions. SAFETEA–LU
streamlined the requirements for
conformity SIPs. Under SAFETEA–LU,
States are required to address and tailor
only three sections of the rules in their
conformity SIPs: 40 CFR 93.105, 40 CFR
93.122(a)(4)(ii), and 40 CFR 93.125(c).
40 CFR 93.105 addresses consultation
procedures for conformity. 40 CFR
93.122(a)(4)(ii) and 40 CFR 93.125(c),
addresses written commitments from
project implementers of transportation
control measures. In general, states are
no longer required to submit conformity
SIP revisions that address the other
sections of the conformity rule.
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II. What is EPA’s analysis of Michigan’s
SIP revision?
A conformity SIP can be adopted as
a state rule, as a memorandum of
understanding, or a memorandum of
agreement (MOA). The appropriate form
of the state conformity procedures
depends upon the requirements of local
or State law, as long as the selected form
complies with all requirements used by
the Act for adoption, submission to
EPA, and implementation of SIPs. EPA
will accept state conformity SIPs in any
form provided the state can demonstrate
to EPA’s satisfaction that, as a matter of
state law, the state has adequate
authority to compel compliance with
the requirements of the conformity SIP.
Michigan concluded that this SIP
revision in the form of a MOA will be
enforceable through a number of
Michigan statutes. These statutes
authorize state agencies to enter into
legally binding cooperative contracts for
the receipt or furnishing of services. In
this case, these services relate to the
transportation/air quality planning
process in Michigan. Michigan
collaborated with the Michigan
Department of Transportation (MDOT),
the EPA, the Federal Highway
Administration (FHWA), the Federal
Transit Administration (FTA), and the
Southeast Michigan Council of
Governments, to develop the
Transportation Conformity MOA. This
MOA was agreed upon and signed by all
of the above consultation parties.
EPA has evaluated this SIP
submission and finds that the state has
addressed the requirements of the
Federal transportation conformity rule
as described in 40 CFR 51.390 and 40
CFR part 93, subpart A. The
transportation conformity rule requires
the states to develop their own
processes and procedures for
interagency consultation and resolution
of conflicts meeting the criteria in 40
CFR 93.105. The SIP revision includes
processes and procedures to be followed
by the Metropolitan Planning
Organization (MPO), MDOT, the FHWA
and the FTA, in consultation with the
state and local air quality agencies and
EPA before making transportation
conformity determinations. Michigan’s
transportation conformity SIP also
included processes and procedures for
the state and local air quality agencies
and EPA to coordinate the development
of applicable SIPs with the MPOs, the
state Department of Transportation
(DOT), and the U.S. DOT, and requires
written commitments to control
measures and mitigation measures (40
CFR 93.122(a)(4)(ii) and 93.125(c)).
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Agencies
[Federal Register Volume 82, Number 67 (Monday, April 10, 2017)]
[Rules and Regulations]
[Pages 17131-17134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07028]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0048; FRL-9960-54-Region 4]
Air Plan Approval; Kentucky; Nonattainment New Source Review
Requirements for the 2008 8-Hour Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
portion of the State Implementation Plan (SIP) revision submitted by
the Commonwealth of Kentucky, through the Energy and Environment
Cabinet's Division of Air Quality on August 26, 2016, regarding the
nonattainment new source review (NNSR) requirements for the 2008 8-hour
ozone national ambient air quality standards (NAAQS) for the Kentucky
portion of the Cincinnati-Hamilton, Ohio-Kentucky-Indiana 2008 8-hour
ozone nonattainment area (hereinafter referred to as the ``Cincinnati-
Hamilton, OH-KY-IN Area'' or ``Area''). The Area consists of Butler,
Clermont, Clinton, Hamilton, and Warren Counties in Ohio; portions of
Boone, Campbell, Kenton Counties in Kentucky; and a portion of Dearborn
County in Indiana. This action is being taken pursuant to the Clean Air
Act (CAA or Act) and its implementing regulations.
DATES: This direct final rule is effective June 9, 2017 without further
notice, unless EPA receives adverse comment by May 10, 2017. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0048 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://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Andres Febres of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Febres can be reached via telephone at (404) 562-8966
or via electronic mail at febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is
attained when the 3-year average of the annual fourth-highest daily
maximum 8-hour average ambient air quality ozone concentrations is less
than or equal to 0.075 ppm. Ambient air quality monitoring data for the
3-year period must meet a data completeness requirement. The ambient
air quality monitoring data completeness requirement is met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in appendix I of part 50.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that is violating the NAAQS
based on the three most recent years of ambient air quality data at the
conclusion of the designation process. As part of the designations
process for the 2008 8-hour ozone NAAQS, the Cincinnati-Hamilton, OH-
KY-IN Area was designated as a marginal ozone nonattainment area,
effective July 20, 2012. See 77 FR 30088 (May 21, 2012). On March 6,
2015, EPA issued a final rule entitled, ``Implementation of the 2008
National Ambient Air Quality Standards for Ozone: State Implementation
Plan Requirements'' (SIP Requirements Rule), which establishes the
requirements that state, tribal, and local air quality management
agencies must meet as they develop implementation plans for areas where
air quality exceeds the 2008 8-hour ozone NAAQS.\1\ See 80 FR 12264.
Areas
[[Page 17132]]
that were designated as marginal ozone nonattainment areas were
required to attain the 2008 8-hour ozone NAAQS no later than July 20,
2015 (3 years after the effective date of designation).\2\ See 40 CFR
51.1103.
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\1\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 8-hour ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The Rule also
revokes the 1997 8-hour ozone NAAQS and establishes anti-backsliding
requirements.
\2\ On May 4, 2016 (81 FR 26697), EPA published its
determination that the Area had attained the 2008 8-hour ozone NAAQS
by the attainment deadline. However, an attainment determination is
not equivalent to a redesignation under CAA section 107(d)(3). The
Area will remain nonattainment for the 2008 8-hour ozone NAAQS and
subject to the NNSR requirements for that NAAQS until such time as
EPA determines that the Area meets the requirements for
redesignation to attainment.
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Based on the nonattainment designation for the 2008 8-hour ozone
standard, Kentucky was required to develop a SIP revision addressing
certain CAA requirements for the Kentucky portion of the Area. On
August 26, 2016, the Commonwealth of Kentucky submitted a SIP revision
addressing, among other things, NNSR requirements for the 2008 8-hour
ozone NAAQS for the Kentucky Area. EPA's analysis of how this SIP
revision addresses the NNSR requirements for the 2008 8-hour ozone
NAAQS is provided below.
II. Analysis of Kentucky's Nonattainment New Source Review Requirements
The minimum SIP requirements for NNSR permitting programs for the
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR
51.1114. These NNSR program requirements include those promulgated in
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (70 FR
71612) and the SIP Requirements Rule for implementing the 2008 8-hour
ozone NAAQS (80 FR 12264). Under the Phase 2 Rule, the SIP for each
ozone nonattainment area must contain nonattainment NSR provisions
that: Set major source thresholds for nitrogen oxides (NOX)
and volatile organic compounds (VOC) pursuant to 40 CFR
51.165(a)(1)(iv)(A)(1)(i)-(iv) and (a)(1)(iv)(A)(2); classify physical
changes as a major source if the change would constitute a major source
by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any
significant net emissions increase of NOX as a significant
net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E);
consider certain increases of VOC emissions in extreme ozone
nonattainment areas as a significant net emissions increase and a major
modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set
significant emissions rates for VOC and NOX as ozone
precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain
provisions for emissions reductions credits pursuant to 40 CFR
51.165(a)(3)(ii)(C)(1) and (2); provide that the requirements
applicable to VOC also apply to NOX pursuant to 40 CFR
51.165(a)(8); and set offset ratios for VOC and NOX pursuant
to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under
the SIP Requirements Rule for the 2008 8-hour ozone NAAQS). Under the
SIP Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each
ozone nonattainment area designated nonattainment for the 2008 8-hour
ozone NAAQS and designated nonattainment for the 1997 8-hour ozone
NAAQS on April 6, 2015, must also contain NNSR provisions that include
the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR
51.165(a)(12).
Kentucky has a longstanding and fully implemented NNSR program
(found at 401 Kentucky Administrative Regulation (KAR) 51:052) that
establishes air quality permitting requirements for the construction or
modification of major stationary sources located within, or impacting,
areas designated as nonattainment. EPA last approved revisions to the
SIP-approved version of Kentucky's NNSR rule on September 15, 2010.
Those revisions, submitted to EPA in a February 5, 2010 SIP revision,
addressed the NNSR requirements in the Phase 2 Rule for the 1997 8-hour
ozone NAAQS. In approving the revisions to Kentucky's NNSR rule, EPA
found the revisions to be in accordance with the changes in the federal
NSR program for the 1997 8-hour ozone NAAQS.\3\ See 75 FR 55988. In
Kentucky's August 26, 2016 SIP revision, the Commonwealth states that
its NNSR program is applicable to the 2008 8-hour ozone NAAQS and cites
to the program as containing acceptable provisions to provide for new
source review in the Kentucky portion of the Area.
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\3\ In that action, EPA determined that the SIP revision was
consistent with changes to federal NSR requirements (40 CFR 51.165
and 51.166 and the Phase II Rule) relating to the incorporation of
nitrogen oxides as an ozone precursor. See 75 FR 55988 (September
15, 2010).
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The version of 401 KAR 52:052 that is contained in the current SIP
has not changed since the 2010 rulemaking. This version of the rule
covers the Kentucky portion of the Area and is adequate to meet all
applicable NNSR requirements for the 2008 8-hour ozone NAAQS. The Phase
2 requirements for 8-hour ozone nonattainment areas classified as
serious or above remain inapplicable because the Area is classified as
a marginal nonattainment area for the 2008 8-hour NAAQS, and the anti-
backsliding requirements added in the SIP Requirements Rule for
implementing the 2008 8-hour ozone NAAQS are inapplicable because the
Kentucky portion of the Area was redesignated to attainment for the
1997 8-hour ozone NAAQS in 2010.\4\ As stated above, the anti-
backsliding requirements for NNSR in the SIP Requirements Rule only
apply to areas designated nonattainment for the 2008 8-hour ozone NAAQS
and designated nonattainment for the 1997 8-hour ozone NAAQS on April
6, 2015.
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\4\ See 75 FR 47218 (August 5, 2010). The 1997 8-hour ozone
NAAQS was revoked with the 2008 8-hour ozone NAAQS SIP Requirements
Rule, and as discussed above, the anti-backsliding requirements for
the 1997 8-hour ozone NAAQS only apply for areas that were
nonattainment for the 1997 standard on the effective date of the
revocation (April 6, 2015). See 80 FR 12264 (March 6, 2015).
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III. Final Action
EPA is approving the portion of Kentucky's August 26, 2016, SIP
revision addressing the NNSR requirements for the 2008 8-hour ozone
NAAQS for the Kentucky portion of the Cincinnati-Hamilton, OH-KY-IN
Area. EPA has concluded that the Commonwealth's submission fulfills the
40 CFR 51.1114 revision requirement and meets the requirements of CAA
section 110 and the minimum SIP requirements of 40 CFR 51.165.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective June 9, 2017
without further notice unless the Agency receives adverse comments by
May 10, 2017.
If EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on June 9, 2017 and no
further action will be taken on the proposed rule.
[[Page 17133]]
IV. 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
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive 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).
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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 9, 2017. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of this Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: March 15, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart S--Kentucky
0
2. Section 52.920(e) is amended by adding an entry for ``2008 8-hour
ozone NAAQS Nonattainment New Source Review Requirements for the
Kentucky Portion of the Cincinnati-Hamilton OH-KY-IN Area'' at the end
of the table to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Kentucky Non-regulatory Provisions
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State
Name of non-regulatory SIP Applicable geographic or submittal date/ EPA approval date Explanations
provision nonattainment area effective date
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* * * * * * *
2008 8-hour ozone NAAQS Boone, Campbell and 8/26/2016 4/10/2017, [Insert Federal Register
Nonattainment New Source Review Kenton Counties (part) citation].
Requirements for the Kentucky (Kentucky portion of the
Portion of the Cincinnati- Cincinnati-Hamilton, OH-
Hamilton OH-KY-IN Area. KY-IN Area).
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[FR Doc. 2017-07028 Filed 4-7-17; 8:45 am]
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