Air Plan Approval; Kentucky: Cross-State Air Pollution Rule, 36852-36859 [2019-16052]
Download as PDF
<![CDATA[
jspears on DSK3GMQ082PROD with PROPOSALS
36852
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
• 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);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• 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 and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements.
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
Dated: July 17, 2019.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2019–16076 Filed 7–29–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2019–0155; FRL–9997–30–
Region 4]
Air Plan Approval; Kentucky: CrossState Air Pollution Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
revisions to the Kentucky State
Implementation Plan (SIP) concerning
the Cross-State Air Pollution Rule
(CSAPR) submitted by Kentucky on
September 14, 2018, as later clarified on
December 18, 2018. Under CSAPR, large
electricity generating units (EGUs) in
Kentucky are subject to Federal
Implementation Plans (FIPs) requiring
the units to participate in CSAPR’s
federal trading program for annual
emissions of nitrogen oxides (NOX), one
of CSAPR’s two federal trading
programs for ozone season emissions of
NOX, and one of CSAPR’s two federal
trading programs for annual emissions
of sulfur dioxide (SO2). This action
proposes to approve into the SIP the
Commonwealth’s regulations requiring
large Kentucky EGUs to participate in
CSAPR state trading programs for ozone
season NOX emissions, annual NOX
emissions, and annual SO2 emissions
integrated with the CSAPR federal
trading programs, replacing the
corresponding FIP requirements. EPA is
proposing to approve the SIP revision
concerning these CSAPR state trading
programs because the SIP revision meets
the requirements of the Clean Air Act
(CAA or Act) and EPA’s regulations for
approval of a CSAPR full SIP revision
replacing the requirements of a CSAPR
FIP. Under the CSAPR regulations,
approval of this SIP revision would
automatically eliminate Kentucky units’
obligations to participate in CSAPR’s
federal trading programs for ozone
season NOX emissions, annual NOX
emissions, and annual SO2 emissions
under the corresponding CSAPR FIPs
addressing interstate transport
requirements for the 1997 annual fine
particulate matter (PM2.5) national
ambient air quality standards (NAAQS),
the 1997 8-hour ozone NAAQS, the
SUMMARY:
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
2006 24-hour PM2.5 NAAQS, and the
2008 8-hour ozone NAAQS. Approval of
the SIP revision would also satisfy
Kentucky’s good neighbor obligation
under the CAA to prohibit emissions
which will significantly contribute to
nonattainment or interfere with
maintenance of the 1997 8-hour ozone
NAAQS, 1997 annual PM2.5 NAAQS,
2006 24-hour PM2.5 NAAQS, and the
2008 8-hour ozone NAAQS.
DATES: Comments must be received on
or before August 29, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2019–0155 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: D.
Brad Akers, Air Regulatory Management
Section, Air and Radiation Division,
U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. Mr. Akers can be
reached by telephone at (404) 562–9089
or via electronic mail at akers.brad@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary
EPA is proposing to approve the
September 14, 2018,1 revisions to the
1 The Commonwealth originally requested EPA to
fully approve good neighbor CAA transport
obligations pursuant to CAA section
110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS, the
1997 PM2.5 NAAQS, the 2006 PM2.5 NAAQS, the
2010 nitrogen dioxide (NO2) NAAQS and the 2010
SO2 NAAQS. However, CSAPR does not address
transport for the 2010 1-hour NO2 or SO2 NAAQS.
Therefore, the Commonwealth submitted a
clarifying letter on December 18, 2018, to instead
request that EPA approve its transport obligations
for the 1997 ozone NAAQS, the 1997 PM2.5
E:\FR\FM\30JYP1.SGM
30JYP1
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
jspears on DSK3GMQ082PROD with PROPOSALS
Kentucky SIP concerning CSAPR 2
trading programs for ozone season
emissions of NOX and annual emissions
of NOX and SO2. Large EGUs in
Kentucky are subject to CSAPR FIPs that
require the units to participate in the
federal CSAPR NOX Ozone Season
Group 2 Trading Program, federal
CSAPR NOX Annual Trading Program,
and the federal CSAPR SO2 Group 1
Trading Program. CSAPR also provides
a process for the submission and
approval of SIP revisions to replace the
requirements of CSAPR FIPs with SIP
requirements under which a state’s
units participate in CSAPR state trading
programs that are integrated with and,
with certain permissible exceptions,
substantively identical to the CSAPR
federal trading programs.
The SIP revision proposed for
approval would incorporate into
Kentucky’s SIP state trading program
regulations for ozone season NOX and
annual NOX and SO2 emissions that
would replace EPA’s federal trading
program regulations for those emissions
for the Commonwealth’s units.3 EPA is
proposing to approve this SIP revision
because it meets the requirements of the
CAA and EPA’s regulations for approval
of a CSAPR full SIP revision replacing
a federal trading program with a state
trading program that is integrated with
and substantively identical to the
federal trading program. Under the
CSAPR regulations, approval of this SIP
revision would automatically eliminate
the obligations of large EGUs in
Kentucky to participate in CSAPR’s
federal trading programs for ozone
season NOX and annual NOX and SO2
emissions under the corresponding
CSAPR FIPs. EPA proposes to find that
approval of this SIP revision would
satisfy Kentucky’s obligations pursuant
to CAA section 110(a)(2)(D)(i)(I) to
prohibit emissions which will
significantly contribute to
nonattainment or interfere with
maintenance of the 1997 8-hour ozone
NAAQS, the 1997 annual PM2.5
NAAQS, the 2006 24-hour PM2.5
NAAQS, and the 2008 8-hour ozone
NAAQS in any other state.
Section II of this document
summarizes relevant aspects of the
NAAQS, the 2006 PM2.5 NAAQS, and the 2008
ozone NAAQS.
2 Federal Implementation Plans; Interstate
Transport of Fine Particulate Matter and Ozone and
Correction of SIP Approvals, 76 FR 48208 (August
8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through EEEEE of 40
CFR part 97).
3 Under Kentucky’s regulations, the
Commonwealth will retain EPA’s default allowance
allocation methodology and EPA will remain the
implementing authority for administration of the
trading program. See sections III and IV.B.2, below.
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
CSAPR federal trading programs and
FIPs as well as the range of
opportunities states have to submit SIP
revisions to modify or replace the FIP
requirements while continuing to rely
on CSAPR’s trading programs to address
the states’ obligations to mitigate
interstate air pollution. Section III
describes the specific conditions for
approval of such SIP revisions. Section
IV contains EPA’s analysis of
Kentucky’s SIP submittal. Section V
addresses incorporation by reference,
and Section VI sets forth EPA’s
proposed action on the submittal.
Section VII addresses statutory and
Executive Order reviews.
II. Background on CSAPR and CSAPRRelated SIP Revisions
EPA issued CSAPR in July 2011 to
address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning
interstate transport of air pollution. As
amended (including the 2016 CSAPR
Update),4 CSAPR requires 27 Eastern
states to limit their statewide emissions
of SO2 and/or NOX in order to mitigate
transported air pollution unlawfully
impacting other states’ ability to attain
or maintain four NAAQS: The 1997
annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, the 1997 8-hour ozone
NAAQS, and the 2008 8-hour ozone
NAAQS. The CSAPR emissions
limitations are defined in terms of
maximum statewide ‘‘budgets’’ for
emissions of annual SO2, annual NOX,
and/or ozone season NOX by each
covered state’s large EGUs. The CSAPR
state budgets are implemented in two
phases of generally increasing
stringency, with the Phase 1 budgets
applying to emissions in 2015 and 2016
and the Phase 2 (and CSAPR Update)
budgets applying to emissions in 2017
and later years. As a mechanism for
achieving compliance with the
emissions limitations, CSAPR
establishes five federal emissions
trading programs: A program for annual
NOX emissions, two geographically
separate programs for annual SO2
emissions, and two geographically
separate programs for ozone-season NOX
emissions. CSAPR also establishes FIP
4 See 81 FR 74504 (October 26, 2016). The CSAPR
Update was promulgated to address interstate
pollution with respect to the 2008 ozone NAAQS
and to address a judicial remand of certain original
CSAPR ozone season NOX budgets promulgated
with respect to the 1997 ozone NAAQS. See 81 FR
at 74505. The CSAPR Update established new
emission reduction requirements addressing the
more recent NAAQS and coordinated them with the
remaining emission reduction requirements
addressing the older NAAQS, so that starting in
2017, CSAPR includes two geographically separate
trading programs for ozone season NOX emissions
covering EGUs in a total of 23 states. See 40 CFR
52.38(b)(1)–(2).
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
36853
requirements applicable to the large
EGUs in each covered state. Currently,
the CSAPR FIP provisions require each
state’s units to participate in up to three
of the five CSAPR trading programs.
CSAPR includes provisions under
which states may submit and EPA will
approve SIP revisions to modify or
replace the CSAPR FIP requirements
while allowing states to continue to
meet their transport-related obligations
using either CSAPR’s federal emissions
trading programs or state emissions
trading programs integrated with the
federal programs.5 Through such a SIP
revision, a state may replace EPA’s
default provisions for allocating
emission allowances among the state’s
units, employing any state-selected
methodology to allocate or auction the
allowances, subject to timing conditions
and limits on overall allowance
quantities. In the case of CSAPR’s
federal trading programs for ozone
season NOX emissions (or an integrated
state trading program), a state may also
expand trading program applicability to
include certain smaller electricity
generating units.6 If a state wants to
replace CSAPR FIP requirements with
SIP requirements under which the
state’s units participate in a state trading
program that is integrated with and
identical to the federal trading program
even as to the allocation and
applicability provisions, the state may
submit a SIP revision for that purpose
as well. However, no emissions budget
increases or other substantive changes
to the trading program provisions are
allowed. A state whose units are subject
to multiple CSAPR FIPs and federal
trading programs may submit SIP
revisions to modify or replace either
some or all of those FIP requirements.
States can submit two basic forms of
CSAPR-related SIP revisions effective
for emissions control periods in 2017 or
later years (or 2019 or later years in the
case of the CSAPR NOX Ozone Season
Group 2 Trading Program).7 Specific
conditions for approval of each form of
SIP revision are set forth in the CSAPR
5 See 40 CFR 52.38, 52.39. States also retain the
ability to submit SIP revisions to meet their
transport-related obligations using mechanisms
other than the CSAPR federal trading programs or
integrated state trading programs.
6 States covered by both the CSAPR Update and
the NOX SIP Call have the additional option to
expand applicability under the CSAPR NOX Ozone
Season Group 2 Trading Program to include nonelectric generating units that would have
participated in the former NOX Budget Trading
Program.
7 CSAPR also provides for a third, more
streamlined form of SIP revision that is effective
only for control periods in 2016 (or 2018 in the case
of the CSAPR NOX Ozone Season Group 2 Trading
Program) and is not relevant here. See 40 CFR
52.38(a)(3), (b)(3), (b)(7); 52.39(d), (g).
E:\FR\FM\30JYP1.SGM
30JYP1
jspears on DSK3GMQ082PROD with PROPOSALS
36854
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
regulations, as described in section IV
below. Under the first alternative—an
‘‘abbreviated’’ SIP revision—a state may
submit a SIP revision that upon
approval replaces the default allowance
allocation and/or applicability
provisions of a CSAPR federal trading
program for the state.8 Approval of an
abbreviated SIP revision leaves the
corresponding CSAPR FIP and all other
provisions of the relevant federal
trading program in place for the state’s
units.
Under the second alternative—a
‘‘full’’ SIP revision—a state may submit
a SIP revision that upon approval
replaces a CSAPR federal trading
program for the state with a state trading
program integrated with the federal
trading program, so long as the state
trading program is substantively
identical to the federal trading program
or does not substantively differ from the
federal trading program except as
discussed above with regard to the
allowance allocation and/or
applicability provisions.9 For purposes
of a full SIP revision, a state may either
adopt state rules with complete trading
program language, incorporate the
federal trading program language into its
state rules by reference (with
appropriate conforming changes), or
employ a combination of these
approaches.
The CSAPR regulations identify
several important consequences and
limitations associated with approval of
a full SIP revision. First, upon EPA’s
approval of a full SIP revision as
correcting the deficiency in the state’s
implementation plan that was the basis
for a particular set of CSAPR FIP
requirements, the obligation to
participate in the corresponding CSAPR
federal trading program is automatically
eliminated for units subject to the state’s
jurisdiction without the need for a
separate EPA withdrawal action, so long
as EPA’s approval of the SIP is full and
unconditional.10 Second, approval of a
full SIP revision does not terminate the
obligation to participate in the
corresponding CSAPR federal trading
program for any units located in any
Indian country within the borders of the
state, and if and when a unit is located
in Indian country within a state’s
borders, EPA may modify the SIP
approval to exclude from the SIP, and
include in the surviving CSAPR FIP
instead, certain trading program
provisions that apply jointly to units in
8 See
40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e),
(h).
9 See
40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
10 See
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
the state and to units in Indian country
within the state’s borders.11
Finally, if at the time a full SIP
revision is approved EPA has already
started recording allocations of
allowances for a given control period to
a state’s units, the federal trading
program provisions authorizing EPA to
complete the process of allocating and
recording allowances for that control
period to those units will continue to
apply, unless EPA’s approval of the SIP
revision provides otherwise.12
III. Conditions for Approval of CSAPRRelated SIP Revisions
Each CSAPR-related abbreviated or
full SIP revision must meet the
following general submittal conditions:
• Timeliness and completeness of SIP
submittal. The SIP submittal
completeness criteria in section 2.1 of
appendix V to 40 CFR part 51 apply. In
addition, if a state wants to replace the
default allowance allocation or
applicability provisions of a CSAPR
federal trading program, the complete
SIP revision must be submitted to EPA
by December 1 of the year before the
deadlines described below for
submitting allocation or auction
amounts to EPA for the first control
period for which the state wants to
replace the default allocation and/or
applicability provisions.13 This SIP
submission deadline is inoperative in
the case of a SIP revision that seeks only
to replace a CSAPR FIP and federal
trading program with a SIP and a
substantively identical state trading
program integrated with the federal
trading program.
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP seeking to address the
allocation or auction of emission
allowances must meet the following
further conditions:
• Methodology covering all
allowances potentially requiring
allocation. For each federal trading
program addressed by a SIP revision,
the SIP revision’s allowance allocation
or auction methodology must replace
both the federal program’s default
allocations to existing units 14 at 40 CFR
11 See 40 CFR 52.38(a)(5)(iv)–(v), (a)(6), (b)(5)(v)–
(vi), (b)(9)(vi)–(vii), (b)(10)(i); 52.39(f)(4)–(5), (i)(4)–
(5), (j).
12 See 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
13 See 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); 52.39(e)(2), (f)(6),
(h)(2), (i)(6).
14 In the context of the approval conditions for
CSAPR-related SIP revisions, an ‘‘existing unit’’ is
a unit for which EPA has determined default
allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing
and amending CSAPR. Spreadsheets showing EPA’s
default allocations to existing units are posted at
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a), as applicable,
and the federal trading program’s
provisions for allocating allowances
from the new unit set-aside (NUSA) for
the state at 40 CFR 97.411(b)(1) and
97.412(a), 97.511(b)(1) and 97.512(a),
97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and
97.812(a), as applicable.15 In the case of
a state with Indian country within its
borders, while the SIP revision may
neither alter nor assume the federal
program’s provisions for administering
the Indian country NUSA for the state,
the SIP revision must include
procedures addressing the disposition of
any otherwise unallocated allowances
from an Indian country NUSA that may
be made available for allocation by the
state after EPA has carried out the
Indian country NUSA allocation
procedures.16
• Assurance that total allocations will
not exceed the state budget. For each
federal trading program addressed by a
SIP revision, the total amount of
allowances auctioned or allocated for
each control period under the SIP
revision (prior to the addition by EPA of
any unallocated allowances from any
Indian country NUSA for the state)
generally may not exceed the state’s
emissions budget for the control period
less the sum of the amount of any
Indian country NUSA for the state for
the control period and any allowances
already allocated to the state’s units for
the control period and recorded by
EPA.17 Under its SIP revision, a state is
free to not allocate allowances to some
or all potentially affected units, to
allocate or auction allowances to
entities other than potentially affected
units, or to allocate or auction fewer
than the maximum permissible quantity
of allowances and retire the remainder.
Under the CSAPR NOX Ozone Season
Group 2 Trading Program only,
additional allowances may be allocated
if the state elects to expand applicability
to non-electric generating units that
would have been subject to the NOX
Budget Trading Program established for
compliance with the NOX SIP Call.18
• Timely submission of statedetermined allocations to EPA. The SIP
https://www.epa.gov/csapr/unit-level-allocationsunder-csapr-transport-rule-fips-after-tolling and
https://www.epa.gov/airmarkets/final-cross-stateair-pollution-rule-update.
15 See 40 CFR 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii),
(b)(5)(ii), (b)(8)(iii), (b)(9)(iii); 52.39(e)(1), (f)(1),
(h)(1), (i)(1).
16 See 40 CFR 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
17 40 CFR 52.38(a)(4)(i)(A), (a)(5)(i)(A),
(b)(4)(ii)(A), (b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A);
52.39(e)(1)(i), (f)(1)(i), (h)(1)(i), (i)(1)(i).
18 See 40 CFR 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
E:\FR\FM\30JYP1.SGM
30JYP1
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
revision must require the state to submit
to EPA the amounts of any allowances
allocated or auctioned to each unit for
each control period (other than
allowances initially set aside in the
state’s allocation or auction process and
later allocated or auctioned to such
units from the set-aside amount) by the
following deadlines.19 Note that the
submission deadlines differ for amounts
36855
allocated or auctioned to units
considered existing units for CSAPR
purposes and amounts allocated or
auctioned to other units.
CSAPR NOX ANNUAL, CSAPR NOX OZONE SEASON GROUP 1, CSAPR SO2 GROUP 1, AND CSAPR SO2 GROUP 2
TRADING PROGRAMS
Year of the
control period
Units
and
and
and
and
Deadline for submission to EPA of allocations or
auction results
Existing .................................
2017
2019
2021
2023
2018 ................................................................
2020 ................................................................
2022 ................................................................
later years .......................................................
Other ....................................
All years ..........................................................................
June 1, 2016.
June 1, 2017.
June 1, 2018.
June 1 of the fourth year before the year of the control
period.
July 1 of the year of the control period.
CSAPR NOX OZONE SEASON GROUP 2 TRADING PROGRAM
jspears on DSK3GMQ082PROD with PROPOSALS
Units
Deadline for submission to EPA of allocations or
auction results
Year of the control period
Existing .................................
2019
2021
2023
2025
and
and
and
and
2020 ................................................................
2022 ................................................................
2024 ................................................................
later years .......................................................
Other ....................................
All years ..........................................................................
June 1, 2018.
June 1, 2019.
June 1, 2020.
June 1 of the fourth year before the year of the control
period.
July 1 of the year of the control period.
• No changes to allocations already
submitted to EPA or recorded. The SIP
revision must not provide for any
change to the amounts of allowances
allocated or auctioned to any unit after
those amounts are submitted to EPA or
any change to any allowance allocation
determined and recorded by EPA under
the federal trading program
regulations.20
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also expands program
applicability as described below.21 Any
new definitions adopted in the SIP
revision (in addition to the federal
trading program’s definitions) may
apply only for purposes of the SIP
revision’s allocation or auction
provisions.22
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP revision seeking to expand
applicability under the CSAPR NOX
Ozone Season Group 1 or CSAPR NOX
Ozone Season Group 2 Trading
Programs (or an integrated state trading
program) must meet the following
further conditions:
• Only electricity generating units
with nameplate capacity of at least 15
MWe. The SIP revision may expand
applicability only to additional fossil
fuel-fired boilers or combustion turbines
serving generators producing electricity
for sale, and only by lowering the
generator nameplate capacity threshold
used to determine whether a particular
boiler or combustion turbine serving a
particular generator is a potentially
affected unit. The nameplate capacity
threshold adopted in the SIP revision
may not be less than 15 MWe.23 In
addition or alternatively, applicability
under the CSAPR NOX Ozone Season
Group 2 Trading Program may be
expanded to non-electric generating
units that would have been subject to
the NOX Budget Trading Program
established for compliance with the
NOX SIP Call.24
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also addresses the
19 See 40 CFR 52.38(a)(4)(i)(B)–(C), (a)(5)(i)(B)–
(C), (b)(4)(ii)(B)–(C), (b)(5)(ii)(B)–(C), (b)(8)(iii)(B)–
(C), (b)(9)(iii)(B)–(C); 52.39(e)(1)(ii)–(iii), (f)(1)(ii)–
(iii), (h)(1)(ii)–(iii), (i)(1)(ii)–(iii).
20 See 40 CFR 52.38(a)(4)(i)(D), (a)(5)(i)(D),
(b)(4)(ii)(D), (b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D);
52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
21 See 40 CFR 52.38(a)(4), (a)(5), (b)(4), (b)(5),
(b)(8), (b)(9); 52.39(e), (f), (h), (i).
22 See 40 CFR 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii),
(b)(5)(iii), (b)(8)(iii), (b)(9)(iv); 52.39(e)(1), (f)(2),
(h)(1), (i)(2).
23 See 40 CFR 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i),
(b)(9)(i).
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
allocation or auction of emission
allowances as described above.25
In addition to the general submittal
conditions and the other applicable
conditions described above, a CSAPRrelated full SIP revision must meet the
following further conditions:
• Complete, substantively identical
trading program provisions. The SIP
revision must adopt complete state
trading program regulations
substantively identical to the complete
federal trading program regulations at
40 CFR 97.402 through 97.435, 97.502
through 97.535, 97.602 through 97.635,
97.702 through 97.735, or 97.802
through 97.835, as applicable, except as
described above in the case of a SIP
revision that seeks to replace the default
allowance allocation and/or
applicability provisions.26
• Only non-substantive substitutions
for the term ‘‘State.’’ The SIP revision
may substitute the name of the state for
the term ‘‘State’’ as used in the federal
trading program regulations, but only to
the extent that EPA determines that the
substitutions do not substantively
change the trading program
regulations.27
24 See
40 CFR 52.38(b)(8)(ii), (b)(9)(ii).
40 CFR 52.38(b)(4), (b)(5), (b)(8), (b)(9).
26 See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f),
(i).
27 See 40 CFR 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
25 See
E:\FR\FM\30JYP1.SGM
30JYP1
36856
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
jspears on DSK3GMQ082PROD with PROPOSALS
• Exclusion of provisions addressing
units in Indian country. The SIP
revision may not impose requirements
on any unit in any Indian country
within the state’s borders and must not
include the federal trading program
provisions governing allocation of
allowances from any Indian country
NUSA for the state.28
2016 CSAPR Update rulemaking, using
updated data and analyses, EPA
determined that air pollution
transported from Kentucky would
unlawfully affect other states’ ability to
maintain the 2008 8-hour ozone
NAAQS, established an ozone season
NOX budget for Kentucky’s EGUs
representing a partial remedy for the
Commonwealth’s interstate transport
IV. Kentucky’s SIP Submittal and EPA’s
obligations with respect to that NAAQS,
Analysis
and implemented the budget by
A. Kentucky’s Submittal
including the units in a new ozone
season NOX trading program.32 Also in
In CSAPR and the CSAPR Update,
the
CSAPR Update rulemaking, EPA
EPA found that air pollution transported
determined that Kentucky’s previous
from Kentucky unlawfully affects other
ozone season NOX budget established in
states’ ability to attain or maintain the
the 2011 CSAPR rulemaking as a partial
1997 8-hour ozone NAAQS, the 1997
annual PM2.5 NAAQS, the 2006 24-hour remedy for the Commonwealth’s
interstate transport obligations with
PM2.5 NAAQS, and the 2008 8-hour
respect to the 1997 8-hour ozone
ozone NAAQS. As discussed below,
NAAQS now represents a full remedy
Kentucky’s submittal addresses each of
with respect to that NAAQS 33 and
these NAAQS.
coordinated
compliance requirements
In the 2011 CSAPR rulemaking,
by allowing compliance with the new
among other findings, EPA determined
CSAPR Update budget to serve the
that air pollution transported from
Kentucky would unlawfully affect other purpose of addressing the
states’ ability to attain and maintain the Commonwealth’s obligations with
1997 annual PM2.5 NAAQS and the 2006 respect to the 1997 and 2008 8-hour
ozone NAAQS.34 Most recently, in a
24-hour PM2.5 NAAQS, established
2018 action approving a revision to
annual NOX and SO2 budgets for
Kentucky’s SIP, based on further
Kentucky’s EGUs representing full
updated data and analyses, EPA
remedies for the Commonwealth’s
determined that Kentucky’s ozone
interstate transport obligations with
season NOX budget established in the
respect to these NAAQS, and
2016 CSAPR Update rulemaking as a
implemented the budgets by including
partial remedy for the Commonwealth’s
the EGUs in annual NOX and SO2
interstate transport obligations with
trading programs.29 Consequently,
respect to the 2008 8-hour ozone
Kentucky’s units meeting the CSAPR
NAAQS now represents a full remedy
applicability criteria are currently
with respect to that NAAQS.35
subject to CSAPR FIPs that require
Consequently,
Kentucky units meeting
participation in the CSAPR NOX Annual
the CSAPR applicability criteria are
Trading Program and the CSAPR SO2
currently subject to CSAPR Update FIP
Group 1 Trading Program in order to
requirements for participation in the
address, in full, the Commonwealth’s
CSAPR NOX Ozone Season Group 2
interstate transport obligations with
Trading Program in order to address, in
respect to both the 1997 annual PM2.5
full, the Commonwealth’s interstate
NAAQS and the 2006 24-hour PM2.5
transport obligations with respect to
NAAQS.30
both the 1997 8-hour ozone NAAQS and
In the 2011 CSAPR rulemaking, EPA
the 2008 8-hour ozone NAAQS.36
also determined that air pollution
If approved, Kentucky’s September
transported from Kentucky would
14, 2018, SIP submission would
unlawfully affect other states’ ability to
incorporate into the SIP CSAPR state
attain or maintain the 1997 8-hour
trading program regulations
ozone NAAQS, established an ozone
season NOX budget for Kentucky’s EGUs implementing the CSAPR and CSAPR
Update emissions budgets for Kentucky
representing a partial remedy for the
units’ ozone season NOX, annual SO2,
Commonwealth’s interstate transport
obligations with respect to that NAAQS, and annual NOX emissions, thereby
fully addressing through SIP provisions
and implemented the budget by
the Commonwealth’s interstate
including the EGUs in an ozone season
transport obligations with respect to the
31
NOX trading program. Later, in the
1997 8-hour ozone NAAQS, the 1997
28 See 40 CFR 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi);
52.39(f)(4), (i)(4).
29 See 76 FR at 48209–13.
30 See 40 CFR 52.38(a)(2); 52.39(b); 52.940(a);
52.941(a).
31 See 76 FR at 48209–13.
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
PO 00000
32 See
81 FR at 74507–09.
at 74525.
34 Id. at 74563 n.169.
35 83 FR 33730, 33759 (July 17, 2018).
36 See 40 CFR 52.38(b)(2)(iii); 52.940(b)(2).
33 Id.
Frm 00014
Fmt 4702
Sfmt 4702
annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, and the 2008 8-hour
ozone NAAQS. As described in section
II, pursuant to the CSAPR regulations,
full and unconditional approval of the
SIP revision by EPA would therefore
automatically eliminate Kentucky EGU’s
obligations under the CSAPR and
CSAPR Update FIPs to participate in the
CSAPR federal trading programs.37
The SIP submittal includes the
addition of the following Kentucky
Administrative Regulations: 401 KAR
51:240 ‘‘Cross-State Air Pollution Rule
(CSAPR) NOX annual trading program,’’
401 KAR 51:250 ‘‘Cross-State Air
Pollution Rule (CSAPR) NOX ozone
season group 2 trading program,’’ and
401 KAR 51:260 ‘‘Cross-State Air
Pollution Rule (CSAPR) SO2 group 1
trading program.’’ In general,
Kentucky’s CSAPR state trading
program rules are designed to replace
the corresponding federal trading
program regulations. For example, 401
KAR 51:240 ‘‘Cross-State Air Pollution
Rule (CSAPR) NOX annual trading
program’’ is designed to replace subpart
AAAAA of 40 CFR part 97 (i.e., 40 CFR
97.401 through 97.435).
With regard to form, the CSAPR state
trading program rules generally
incorporate the corresponding federal
trading program section or sections by
reference, with a few exceptions.
With regard to content, the rules for
each Kentucky CSAPR state trading
program differ from the corresponding
CSAPR federal trading program
regulations in two main ways, as further
described below. First, the applicability
provisions in the Kentucky rules require
participation in Kentucky CSAPR state
trading programs only for units in
Kentucky, not for units in any other
state or in Indian country within the
borders of Kentucky or any other state.
Second, the Kentucky rules omit some
federal trading program provisions not
applicable to Kentucky’s state trading
programs, including provisions setting
forth the amounts of emissions budgets,
NUSAs, Indian country NUSAs, and
variability limits for other states and
provisions relating to EPA’s
administration of Indian country
NUSAs.
The September 14, 2018, SIP revisions
were submitted to EPA by a letter from
the Secretary of the Kentucky Energy
and Environment Cabinet, as clarified in
a subsequent December 18, 2018, letter.
The letter and enclosures describe steps
taken by Kentucky to provide public
notice prior to adoption of the state
rules.
37 See
E:\FR\FM\30JYP1.SGM
40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
30JYP1
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
B. EPA’s Analysis of Kentucky’s
Submittal
At this time, EPA is proposing to take
action on Kentucky SIP submissions,
which are designed to replace the
federal CSAPR NOX Ozone Season
Group 2 Trading Program, federal
CSAPR NOX Annual Trading Program,
and the federal CSAPR SO2 Group 1
Trading Program with regard to
Kentucky units.
jspears on DSK3GMQ082PROD with PROPOSALS
1. Timeliness and Completeness of
Submittal
Kentucky submitted the SIP revisions
to EPA on September 14, 2018, and EPA
has determined that the submittals
comply with the applicable minimum
completeness criteria in section 2.3 of
appendix V to 40 CFR part 51. The SIP
submission deadline specified in 40
CFR 52.38(a)(5)(vi), 52.38(b)(9)(viii), and
52.39(f)(6) is defined with reference to
certain separate CSAPR deadlines for
submission of state-determined
allowance allocations to EPA and is
therefore inoperative in the case of a SIP
revision that does not seek to replace
the EPA-administered allowance
allocation methodology and process set
forth in the federal trading program
rules. Because Kentucky is seeking to
replace the federal trading program
rules with substantively identical state
trading program rules and is not seeking
to replace the EPA-administered
allowance allocation methodology and
process, the SIP submission deadline
does not apply.38
2. Complete, Substantively Identical
Trading Program Provisions
The Kentucky rules adopt state
budgets identical to the Ozone Season
Group 2 NOX budgets and the Phase 2
NOX Annual and SO2 Group 1 budgets
for Kentucky under the federal trading
programs. The Kentucky rules also
adopt almost all of the provisions of the
federal CSAPR NOX Ozone Season
Group 2 Trading Program, federal
CSAPR NOX Annual Trading Program
and federal CSAPR SO2 Group 1
Trading Program, including the default
allowance allocation provisions. Under
the Commonwealth’s rules, EPA would
administer the programs and would
retain the authority to allocate
allowances.
With the following exceptions, the
Kentucky rules comprising Kentucky’s
CSAPR state trading program for ozone
season NOX emissions incorporate by
reference all of the provisions of 40 CFR
97.801 through 97.835, the rules
comprising the state program for annual
38 See 40 CFR 52.38(a)(5)(vi), 52.38(b)(9)(viii), and
52.39(f)(6).
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
NOX emissions incorporate by reference
all of the provisions of 40 CFR 97.401
through 97.435, and the rules
comprising the state program for SO2
emissions incorporate by reference all of
the provisions of 40 CFR 97.601 through
97.635.
The first exception is that, as
discussed subsequently in section
IV.B.3, 401 KAR 51:240, Section 2, 401
KAR 51:250, Section 2, and 401 KAR
51:260, Section 2, of the Kentucky rules
limit applicability of the rules to units
located in Kentucky. This modification
of the applicability provisions in the
federal trading program rules is
appropriate for state trading program
rules which necessarily must be
designed to apply only to sources
subject to the state’s jurisdiction.
The second exception is that the
Kentucky rules do not incorporate the
complete provisions of 40 CFR 97.410,
97.810, and 97.610 concerning the
amounts of emissions budgets, NUSAs,
Indian country NUSAs, and variability
limits for the three CSAPR federal
trading programs. Instead, Kentucky
rules 401 KAR 51:240, Section 3(7), 401
KAR 51:250, Section 3(7), and 401 KAR
51:260, Section 3(7) adopt full-text
replacement provisions specifying (and
describing the relationships among) the
emissions budget, NUSA, and
variability limit amounts for the three
trading programs only as applicable to
Kentucky units and only for control
periods occurring after 2016. The fulltext replacement provisions adopted by
Kentucky are substantively identical to
the provisions of the respective federal
rules that would apply to Kentucky
units after 2016. For purposes of
Kentucky’s state trading program rules,
which apply only to Kentucky units and
only starting in 2018, the omission of
provisions of the corresponding federal
rules that apply to units located in other
states or Indian country and provisions
that applied to Kentucky units only for
control periods before 2017 is not a
substantive change from the federal
trading program regulations.
The third exception is that Kentucky
rules 401 KAR 51:240, 51:250, and
51:260 omit 40 CFR 97.411(b)(2),
97.411(c)(5)(iii), 97.412(b), 97.421(h),
97.421(j), 97.811(b)(2), 97.811(c)(5)(iii),
97.812(b), 97.821(h), 97.821(j),
97.611(b)(2), 97.611(c)(5)(iii), 97.612(b),
97.621(h), and 97.621(j), concerning
EPA’s administration of Indian country
NUSAs. Omission of these provisions
from Kentucky’s state trading program
rules is required, as discussed in section
IV.B.4.
The final exception is that, only for
purposes of units located in the
Commonwealth, Kentucky rules 401
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
36857
KAR 51.240, Section 1(2), 401 KAR
51.250, Section 1(2), and 401 KAR
51.260, Section 1(2), define the term
‘‘Permitting Authority’’ as the Kentucky
Energy and Environmental Cabinet. The
definition in the federal trading program
regulations is not altered with respect to
units located in other states or Indian
country. Because the term ‘‘permitting
authority’’ in the federal trading
program regulations is intended to
reference the appropriate permitting
authority for each unit under 40 CFR
part 70 or part 71, the definition in
Kentucky’s rules merely adds specificity
without causing a substantive change.
None of the omissions undermine the
completeness of Kentucky’s state
trading program regulations, and EPA
has determined that Kentucky’s
proposed SIP revision makes no
substantive changes to the provisions of
the federal trading program regulations.
Thus, Kentucky’s SIP revision meets the
condition under 40 CFR 52.38(a)(5),
52.38(b)(9), and 52.39(f) that the SIP
revision must adopt complete state
trading program regulations
substantively identical to the complete
federal trading program regulations at
40 CFR 97.402 through 97.435, 40 CFR
97.802 through 97.835, and 97.602
through 97.635, respectively, except to
the extent permitted in the case of a SIP
revision that seeks to replace the default
allowance allocation and/or
applicability provisions.
3. Only Non-Substantive Substitutions
for the Term ‘‘State’’
401 KAR 51:240, Section 3(2)(b), 401
KAR 51:250, Section 3(2)(b), and 401
KAR 51:260, Section 3(2)(b) of the
Kentucky rules substitute the phrase ‘‘in
Kentucky,’’ for the phrase ‘‘in a State
(and Indian country within the borders
of such State)’’ in the corresponding
federal trading program regulations at
40 CFR 97.404(a)(1) and (b), 97.804(a)(1)
and (b), and 97.604(a)(1) and (b),
respectively. These provisions of the
Kentucky rules define the units that are
required to participate in Kentucky’s
CSAPR state trading programs. The
substitutions appropriately exclude all
units located in other states or in Indian
country within the borders of any state,
thereby limiting the applicability of
Kentucky’s state trading programs to
units that are subject to Kentucky’s
jurisdiction. These substitutions do not
substantively change the provisions of
CSAPR’s federal trading program
regulations. The remaining Kentucky
rules do not substitute for the term
‘‘State’’ as used in the federal trading
program regulations. Kentucky’s SIP
revision therefore meets the condition
under 40 CFR 52.38(a)(5)(iii),
E:\FR\FM\30JYP1.SGM
30JYP1
36858
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
52.38(b)(9)(v), and 52.39(f)(3) that the
SIP revision may substitute the name of
the state for the term ‘‘State’’ as used in
the federal trading program regulations,
but only to the extent that EPA
determines that the substitutions do not
substantively change the provisions of
the federal trading program regulations.
4. Exclusion of Provisions Addressing
Indian Country
As discussed above in section IV.B.3,
paragraphs 401 KAR 51:240, Section
3(2)(b), 401 KAR 51:250, Section 3(2)(b),
and 401 KAR 51:260, Section 3(2)(b) of
the Kentucky rules do not include units
in Indian country within Kentucky’s
borders in the applicable requirements
of the Commonwealth’s rules. In
addition, as required under 40 CFR
52.38(a)(5)(iv), 52.38(b)(9)(vi), and
52.39(f)(4), Kentucky’s SIP revisions
exclude federal trading program
provisions related to EPA’s process for
allocating and recording allowances
from Indian country NUSAs (i.e., 40
CFR 97.411(b)(2), 97.411(c)(5)(iii),
97.412(b), 97.421(h), 97.421(j),
97.811(b)(2), 97.811(c)(5)(iii), 97.812(b),
97.821(h), 97.821(j), 97.611(b)(2),
97.611(c)(5)(iii), 97.612(b), 97.621(h),
and 97.621(j)). Kentucky’s SIP revision
therefore meets the conditions under
52.38(a)(5)(iv), 52.38(b)(9)(vi), and
52.39(f)(4) that a SIP submittal must not
impose any requirement on any unit in
Indian country within the borders of the
Commonwealth and must exclude
certain provisions related to
administration of Indian country
NUSAs.
jspears on DSK3GMQ082PROD with PROPOSALS
V. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the Kentucky Regulations 401 KAR
51:240, entitled ‘‘Cross-State Air
Pollution Rule (CSAPR) NOX annual
trading program’’; 401 KAR 51:250,
entitled ‘‘Cross-State Air Pollution Rule
(CSAPR) NOX ozone season group 2
trading program’’; and 401 KAR 51.260,
entitled ‘‘Cross-State Air Pollution Rule
SO2 (CSAPR) group 1 trading program.’’
The rules became state-effective as of
July 5, 2018. EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 4 office (please contact the
person identified in the ‘‘For Further
Information Contact’’ section of this
preamble for more information).
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
VI. Proposed Action
EPA is proposing to approve
Kentucky’s September 14, 2018, SIP
submittals concerning the establishment
for Kentucky units of CSAPR state
trading programs for ozone season NOX
emissions and annual NOX and SO2
emissions. The proposed revisions
would adopt into the SIP state trading
program rules codified in Kentucky
regulations at 401 KAR 51:240, ‘‘CrossState Air Pollution Rule (CSAPR) NOX
annual trading program,’’ 401 KAR
51:250, ‘‘Cross-State Air Pollution Rule
(CSAPR) NOX ozone season group 2
trading program,’’ and 401 KAR 51.260,
‘‘Cross-State Air Pollution Rule (CSAPR)
SO2 group 1 trading program.’’ These
Kentucky CSAPR state trading programs
would be integrated with the federal
CSAPR NOX Annual Trading Program,
the federal CSAPR NOX Ozone Season
Group 2 Trading Program, and the
federal CSAPR SO2 Group 1 Trading
Program, respectively, and would be
substantively identical to the federal
trading programs.39 If EPA approves
these SIP revisions, Kentucky units
therefore would generally be required to
meet requirements under Kentucky’s
CSAPR state trading programs
equivalent to the requirements the units
otherwise would have been required to
meet under the corresponding CSAPR
federal trading programs. EPA is
proposing to approve the September 14,
2018, SIP revisions because they meet
the requirements of the CAA and EPA’s
regulations for approval of a CSAPR full
SIP revision replacing a federal trading
program with a state trading program
that is integrated with and substantively
identical to the federal trading program
except for permissible differences, as
discussed in section IV of this action.
EPA promulgated FIPs requiring
Kentucky units to participate in the
federal CSAPR NOX Ozone Season
Group 2 Trading Program, the federal
CSAPR NOX Annual Trading Program,
and the federal CSAPR SO2 Group 1
Trading Program in order to address
Kentucky’s obligations under CAA
section 110(a)(2)(D)(i)(I) with respect to
the 1997 8-hour ozone NAAQS, 1997
annual PM2.5 NAAQS, 2006 24-hour
PM2.5 NAAQS, and 2008 8-hour ozone
NAAQS in the absence of SIP provisions
addressing those requirements.
Approval of the Kentucky SIP
submittals adopting CSAPR state trading
program rules for ozone season NOX and
39 As previously discussed in sections III and
IV.B.2, under Kentucky’s regulations, the
Commonwealth will retain EPA’s default allowance
allocation methodology and EPA will remain the
implementing authority for administration of the
trading program.
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
annual NOX and SO2 substantively
identical to the corresponding CSAPR
federal trading program regulations
would satisfy Kentucky’s obligation
pursuant to CAA section
110(a)(2)(D)(i)(I) to prohibit emissions
which will significantly contribute to
nonattainment or interfere with
maintenance of these NAAQS in any
other state and therefore would correct
the same deficiency in the SIP that
otherwise would be corrected by those
CSAPR FIPs. Under the CSAPR
regulations, upon EPA’s full and
unconditional approval of a SIP revision
as correcting the SIP’s deficiency that is
the basis for a particular CSAPR FIP, the
obligation to participate in the
corresponding CSAPR federal trading
program is automatically eliminated for
units subject to the state’s jurisdiction
(but not for any units located in any
Indian country within the state’s
borders).40 Approval of Kentucky’s SIP
submittal establishing CSAPR state
trading program rules for ozone season
NOX emissions and annual NOX and
SO2 emissions therefore would result in
automatic termination of the obligations
of Kentucky units to participate in the
federal CSAPR NOX Ozone Season
Group 2 Trading Program, the federal
CSAPR NOX Annual Trading Program,
and the federal CSAPR SO2 Group 1
Trading Program.
VII. 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. This action merely proposes to
approve 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);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
40 See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j); see
also 40 CFR 52.940(a)(1), (b)(2); 52.941(a).
E:\FR\FM\30JYP1.SGM
30JYP1
Federal Register / Vol. 84, No. 146 / Tuesday, July 30, 2019 / Proposed Rules
• 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
jspears on DSK3GMQ082PROD with PROPOSALS
Authority: 42 U.S.C. 7401 et seq.
Dated: July 17, 2019.
Mary S. Walker,
Regional Administrator, Region 4.
[FR Doc. 2019–16052 Filed 7–29–19; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014
16:14 Jul 29, 2019
Jkt 247001
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2019–0337; FRL–9996–10–
Region 7]
Air Plan Approval; Missouri; Revisions
to Cross-State Air Pollution Rule
Annual Trading Program and
Rescission of Clean Air Interstate Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing approval of
revisions to the State Implementation
Plan (SIP) submitted on January 15,
2019, and two revisions on March 7,
2019, by the State of Missouri. The
January 15, 2019, revision requests EPA
remove from the Missouri Code of State
Regulations (CSR), the regulations that
established trading programs under the
Clean Air Interstate Rule (CAIR). The
EPA is proposing to act only on the
revisions to the annual nitrogen oxides
(NOX) and sulfur dioxide (SO2) trading
program. The EPA will act on the
revisions to the seasonal NOX trading
program in a separate action. The March
7, 2019, submissions revise Missouri’s
regulations related to the Cross-State Air
Pollution (CSAPR) Annual Trading
Program for SO2 and NOX, and for ozone
season NOX. Approval of these revisions
will not impact air quality and ensures
Federal enforceability of the State’s
rules. The EPA is proposing to approve
these SIP revisions in accordance with
the requirements of the Clean Air Act
(CAA).
SUMMARY:
Comments must be received on
or before August 29, 2019.
ADDRESSES: You may send comments,
identified by Docket ID No. EPA–R07–
OAR–2019–0337 to https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received will be
posted without change to https://
www.regulations.gov, including any
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘Written Comments’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
Lachala Kemp, Environmental
Protection Agency, Region 7 Office, Air
Quality Planning Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219;
DATES:
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
36859
telephone number (913) 551–7214;
email address kemp.lachala@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. Written Comments
II. What is being addressed in this document?
III. Background
IV. What part 52 revision is the EPA
proposing to approve?
V. Have the requirements for approval of a
SIP revision been met?
VI. What action is the EPA taking?
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. Written Comments
Submit your comments, identified by
Docket ID No. EPA–R07–OAR–2019–
0337 at https://www.regulations.gov.
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, 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.
II. What is being addressed in this
document?
The EPA is proposing to approve
revisions to the Missouri State
Implementation Plan (SIP) that were
submitted to EPA on January 15, 2019,
and March 7, 2019.
The January 15, 2019, submission
revises Missouri’s regulations, title 10
Code of State Regulations (10 CSR) 10–
6.362 and 10–6.366 1 by rescinding and
removing these rules. The EPAadministered trading programs under
CAIR were discontinued on December
31, 2014, upon the implementation of
the Cross-State Air Pollution Rule
1 The January 15, 2019, submission also
contained a revision to 10 CSR 10–6.364. EPA is not
proposing to act on that portion of the submission
in this action. EPA will address this portion of the
submission in a separate action.
E:\FR\FM\30JYP1.SGM
30JYP1
]]>Agencies
[Federal Register Volume 84, Number 146 (Tuesday, July 30, 2019)]
[Proposed Rules]
[Pages 36852-36859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16052]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0155; FRL-9997-30-Region 4]
Air Plan Approval; Kentucky: Cross-State Air Pollution Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Kentucky State Implementation Plan (SIP)
concerning the Cross-State Air Pollution Rule (CSAPR) submitted by
Kentucky on September 14, 2018, as later clarified on December 18,
2018. Under CSAPR, large electricity generating units (EGUs) in
Kentucky are subject to Federal Implementation Plans (FIPs) requiring
the units to participate in CSAPR's federal trading program for annual
emissions of nitrogen oxides (NOX), one of CSAPR's two
federal trading programs for ozone season emissions of NOX,
and one of CSAPR's two federal trading programs for annual emissions of
sulfur dioxide (SO2). This action proposes to approve into
the SIP the Commonwealth's regulations requiring large Kentucky EGUs to
participate in CSAPR state trading programs for ozone season
NOX emissions, annual NOX emissions, and annual
SO2 emissions integrated with the CSAPR federal trading
programs, replacing the corresponding FIP requirements. EPA is
proposing to approve the SIP revision concerning these CSAPR state
trading programs because the SIP revision meets the requirements of the
Clean Air Act (CAA or Act) and EPA's regulations for approval of a
CSAPR full SIP revision replacing the requirements of a CSAPR FIP.
Under the CSAPR regulations, approval of this SIP revision would
automatically eliminate Kentucky units' obligations to participate in
CSAPR's federal trading programs for ozone season NOX
emissions, annual NOX emissions, and annual SO2
emissions under the corresponding CSAPR FIPs addressing interstate
transport requirements for the 1997 annual fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS), the
1997 8-hour ozone NAAQS, the 2006 24-hour PM2.5 NAAQS, and
the 2008 8-hour ozone NAAQS. Approval of the SIP revision would also
satisfy Kentucky's good neighbor obligation under the CAA to prohibit
emissions which will significantly contribute to nonattainment or
interfere with maintenance of the 1997 8-hour ozone NAAQS, 1997 annual
PM2.5 NAAQS, 2006 24-hour PM2.5 NAAQS, and the
2008 8-hour ozone NAAQS.
DATES: Comments must be received on or before August 29, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2019-0155 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: D. Brad Akers, Air Regulatory
Management Section, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. Mr. Akers can be reached by telephone at (404) 562-9089 or
via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Summary
EPA is proposing to approve the September 14, 2018,\1\ revisions to
the
[[Page 36853]]
Kentucky SIP concerning CSAPR \2\ trading programs for ozone season
emissions of NOX and annual emissions of NOX and
SO2. Large EGUs in Kentucky are subject to CSAPR FIPs that
require the units to participate in the federal CSAPR NOX
Ozone Season Group 2 Trading Program, federal CSAPR NOX
Annual Trading Program, and the federal CSAPR SO2 Group 1
Trading Program. CSAPR also provides a process for the submission and
approval of SIP revisions to replace the requirements of CSAPR FIPs
with SIP requirements under which a state's units participate in CSAPR
state trading programs that are integrated with and, with certain
permissible exceptions, substantively identical to the CSAPR federal
trading programs.
---------------------------------------------------------------------------
\1\ The Commonwealth originally requested EPA to fully approve
good neighbor CAA transport obligations pursuant to CAA section
110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS, the 1997
PM2.5 NAAQS, the 2006 PM2.5 NAAQS, the 2010
nitrogen dioxide (NO2) NAAQS and the 2010 SO2
NAAQS. However, CSAPR does not address transport for the 2010 1-hour
NO2 or SO2 NAAQS. Therefore, the Commonwealth
submitted a clarifying letter on December 18, 2018, to instead
request that EPA approve its transport obligations for the 1997
ozone NAAQS, the 1997 PM2.5 NAAQS, the 2006
PM2.5 NAAQS, and the 2008 ozone NAAQS.
\2\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through EEEEE of 40 CFR part 97).
---------------------------------------------------------------------------
The SIP revision proposed for approval would incorporate into
Kentucky's SIP state trading program regulations for ozone season
NOX and annual NOX and SO2 emissions
that would replace EPA's federal trading program regulations for those
emissions for the Commonwealth's units.\3\ EPA is proposing to approve
this SIP revision because it meets the requirements of the CAA and
EPA's regulations for approval of a CSAPR full SIP revision replacing a
federal trading program with a state trading program that is integrated
with and substantively identical to the federal trading program. Under
the CSAPR regulations, approval of this SIP revision would
automatically eliminate the obligations of large EGUs in Kentucky to
participate in CSAPR's federal trading programs for ozone season
NOX and annual NOX and SO2 emissions
under the corresponding CSAPR FIPs. EPA proposes to find that approval
of this SIP revision would satisfy Kentucky's obligations pursuant to
CAA section 110(a)(2)(D)(i)(I) to prohibit emissions which will
significantly contribute to nonattainment or interfere with maintenance
of the 1997 8-hour ozone NAAQS, the 1997 annual PM2.5 NAAQS,
the 2006 24-hour PM2.5 NAAQS, and the 2008 8-hour ozone
NAAQS in any other state.
---------------------------------------------------------------------------
\3\ Under Kentucky's regulations, the Commonwealth will retain
EPA's default allowance allocation methodology and EPA will remain
the implementing authority for administration of the trading
program. See sections III and IV.B.2, below.
---------------------------------------------------------------------------
Section II of this document summarizes relevant aspects of the
CSAPR federal trading programs and FIPs as well as the range of
opportunities states have to submit SIP revisions to modify or replace
the FIP requirements while continuing to rely on CSAPR's trading
programs to address the states' obligations to mitigate interstate air
pollution. Section III describes the specific conditions for approval
of such SIP revisions. Section IV contains EPA's analysis of Kentucky's
SIP submittal. Section V addresses incorporation by reference, and
Section VI sets forth EPA's proposed action on the submittal. Section
VII addresses statutory and Executive Order reviews.
II. Background on CSAPR and CSAPR-Related SIP Revisions
EPA issued CSAPR in July 2011 to address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning interstate transport of air
pollution. As amended (including the 2016 CSAPR Update),\4\ CSAPR
requires 27 Eastern states to limit their statewide emissions of
SO2 and/or NOX in order to mitigate transported
air pollution unlawfully impacting other states' ability to attain or
maintain four NAAQS: The 1997 annual PM2.5 NAAQS, the 2006
24-hour PM2.5 NAAQS, the 1997 8-hour ozone NAAQS, and the
2008 8-hour ozone NAAQS. The CSAPR emissions limitations are defined in
terms of maximum statewide ``budgets'' for emissions of annual
SO2, annual NOX, and/or ozone season
NOX by each covered state's large EGUs. The CSAPR state
budgets are implemented in two phases of generally increasing
stringency, with the Phase 1 budgets applying to emissions in 2015 and
2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions
in 2017 and later years. As a mechanism for achieving compliance with
the emissions limitations, CSAPR establishes five federal emissions
trading programs: A program for annual NOX emissions, two
geographically separate programs for annual SO2 emissions,
and two geographically separate programs for ozone-season
NOX emissions. CSAPR also establishes FIP requirements
applicable to the large EGUs in each covered state. Currently, the
CSAPR FIP provisions require each state's units to participate in up to
three of the five CSAPR trading programs.
---------------------------------------------------------------------------
\4\ See 81 FR 74504 (October 26, 2016). The CSAPR Update was
promulgated to address interstate pollution with respect to the 2008
ozone NAAQS and to address a judicial remand of certain original
CSAPR ozone season NOX budgets promulgated with respect
to the 1997 ozone NAAQS. See 81 FR at 74505. The CSAPR Update
established new emission reduction requirements addressing the more
recent NAAQS and coordinated them with the remaining emission
reduction requirements addressing the older NAAQS, so that starting
in 2017, CSAPR includes two geographically separate trading programs
for ozone season NOX emissions covering EGUs in a total
of 23 states. See 40 CFR 52.38(b)(1)-(2).
---------------------------------------------------------------------------
CSAPR includes provisions under which states may submit and EPA
will approve SIP revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's federal emissions trading
programs or state emissions trading programs integrated with the
federal programs.\5\ Through such a SIP revision, a state may replace
EPA's default provisions for allocating emission allowances among the
state's units, employing any state-selected methodology to allocate or
auction the allowances, subject to timing conditions and limits on
overall allowance quantities. In the case of CSAPR's federal trading
programs for ozone season NOX emissions (or an integrated
state trading program), a state may also expand trading program
applicability to include certain smaller electricity generating
units.\6\ If a state wants to replace CSAPR FIP requirements with SIP
requirements under which the state's units participate in a state
trading program that is integrated with and identical to the federal
trading program even as to the allocation and applicability provisions,
the state may submit a SIP revision for that purpose as well. However,
no emissions budget increases or other substantive changes to the
trading program provisions are allowed. A state whose units are subject
to multiple CSAPR FIPs and federal trading programs may submit SIP
revisions to modify or replace either some or all of those FIP
requirements.
---------------------------------------------------------------------------
\5\ See 40 CFR 52.38, 52.39. States also retain the ability to
submit SIP revisions to meet their transport-related obligations
using mechanisms other than the CSAPR federal trading programs or
integrated state trading programs.
\6\ States covered by both the CSAPR Update and the
NOX SIP Call have the additional option to expand
applicability under the CSAPR NOX Ozone Season Group 2
Trading Program to include non-electric generating units that would
have participated in the former NOX Budget Trading
Program.
---------------------------------------------------------------------------
States can submit two basic forms of CSAPR-related SIP revisions
effective for emissions control periods in 2017 or later years (or 2019
or later years in the case of the CSAPR NOX Ozone Season
Group 2 Trading Program).\7\ Specific conditions for approval of each
form of SIP revision are set forth in the CSAPR
[[Page 36854]]
regulations, as described in section IV below. Under the first
alternative--an ``abbreviated'' SIP revision--a state may submit a SIP
revision that upon approval replaces the default allowance allocation
and/or applicability provisions of a CSAPR federal trading program for
the state.\8\ Approval of an abbreviated SIP revision leaves the
corresponding CSAPR FIP and all other provisions of the relevant
federal trading program in place for the state's units.
---------------------------------------------------------------------------
\7\ CSAPR also provides for a third, more streamlined form of
SIP revision that is effective only for control periods in 2016 (or
2018 in the case of the CSAPR NOX Ozone Season Group 2
Trading Program) and is not relevant here. See 40 CFR 52.38(a)(3),
(b)(3), (b)(7); 52.39(d), (g).
\8\ See 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
---------------------------------------------------------------------------
Under the second alternative--a ``full'' SIP revision--a state may
submit a SIP revision that upon approval replaces a CSAPR federal
trading program for the state with a state trading program integrated
with the federal trading program, so long as the state trading program
is substantively identical to the federal trading program or does not
substantively differ from the federal trading program except as
discussed above with regard to the allowance allocation and/or
applicability provisions.\9\ For purposes of a full SIP revision, a
state may either adopt state rules with complete trading program
language, incorporate the federal trading program language into its
state rules by reference (with appropriate conforming changes), or
employ a combination of these approaches.
---------------------------------------------------------------------------
\9\ See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
---------------------------------------------------------------------------
The CSAPR regulations identify several important consequences and
limitations associated with approval of a full SIP revision. First,
upon EPA's approval of a full SIP revision as correcting the deficiency
in the state's implementation plan that was the basis for a particular
set of CSAPR FIP requirements, the obligation to participate in the
corresponding CSAPR federal trading program is automatically eliminated
for units subject to the state's jurisdiction without the need for a
separate EPA withdrawal action, so long as EPA's approval of the SIP is
full and unconditional.\10\ Second, approval of a full SIP revision
does not terminate the obligation to participate in the corresponding
CSAPR federal trading program for any units located in any Indian
country within the borders of the state, and if and when a unit is
located in Indian country within a state's borders, EPA may modify the
SIP approval to exclude from the SIP, and include in the surviving
CSAPR FIP instead, certain trading program provisions that apply
jointly to units in the state and to units in Indian country within the
state's borders.\11\
---------------------------------------------------------------------------
\10\ See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
\11\ See 40 CFR 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi),
(b)(9)(vi)-(vii), (b)(10)(i); 52.39(f)(4)-(5), (i)(4)-(5), (j).
---------------------------------------------------------------------------
Finally, if at the time a full SIP revision is approved EPA has
already started recording allocations of allowances for a given control
period to a state's units, the federal trading program provisions
authorizing EPA to complete the process of allocating and recording
allowances for that control period to those units will continue to
apply, unless EPA's approval of the SIP revision provides
otherwise.\12\
---------------------------------------------------------------------------
\12\ See 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
---------------------------------------------------------------------------
III. Conditions for Approval of CSAPR-Related SIP Revisions
Each CSAPR-related abbreviated or full SIP revision must meet the
following general submittal conditions:
Timeliness and completeness of SIP submittal. The SIP
submittal completeness criteria in section 2.1 of appendix V to 40 CFR
part 51 apply. In addition, if a state wants to replace the default
allowance allocation or applicability provisions of a CSAPR federal
trading program, the complete SIP revision must be submitted to EPA by
December 1 of the year before the deadlines described below for
submitting allocation or auction amounts to EPA for the first control
period for which the state wants to replace the default allocation and/
or applicability provisions.\13\ This SIP submission deadline is
inoperative in the case of a SIP revision that seeks only to replace a
CSAPR FIP and federal trading program with a SIP and a substantively
identical state trading program integrated with the federal trading
program.
---------------------------------------------------------------------------
\13\ See 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); 52.39(e)(2), (f)(6), (h)(2),
(i)(6).
---------------------------------------------------------------------------
In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP seeking to address the allocation or auction of
emission allowances must meet the following further conditions:
Methodology covering all allowances potentially requiring
allocation. For each federal trading program addressed by a SIP
revision, the SIP revision's allowance allocation or auction
methodology must replace both the federal program's default allocations
to existing units \14\ at 40 CFR 97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a), as applicable, and the federal trading
program's provisions for allocating allowances from the new unit set-
aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a),
97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.\15\ In the
case of a state with Indian country within its borders, while the SIP
revision may neither alter nor assume the federal program's provisions
for administering the Indian country NUSA for the state, the SIP
revision must include procedures addressing the disposition of any
otherwise unallocated allowances from an Indian country NUSA that may
be made available for allocation by the state after EPA has carried out
the Indian country NUSA allocation procedures.\16\
---------------------------------------------------------------------------
\14\ In the context of the approval conditions for CSAPR-related
SIP revisions, an ``existing unit'' is a unit for which EPA has
determined default allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing and amending
CSAPR. Spreadsheets showing EPA's default allocations to existing
units are posted at https://www.epa.gov/csapr/unit-level-allocations-under-csapr-transport-rule-fips-after-tolling and
https://www.epa.gov/airmarkets/final-cross-state-air-pollution-rule-update.
\15\ See 40 CFR 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii),
(b)(5)(ii), (b)(8)(iii), (b)(9)(iii); 52.39(e)(1), (f)(1), (h)(1),
(i)(1).
\16\ See 40 CFR 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
---------------------------------------------------------------------------
Assurance that total allocations will not exceed the state
budget. For each federal trading program addressed by a SIP revision,
the total amount of allowances auctioned or allocated for each control
period under the SIP revision (prior to the addition by EPA of any
unallocated allowances from any Indian country NUSA for the state)
generally may not exceed the state's emissions budget for the control
period less the sum of the amount of any Indian country NUSA for the
state for the control period and any allowances already allocated to
the state's units for the control period and recorded by EPA.\17\ Under
its SIP revision, a state is free to not allocate allowances to some or
all potentially affected units, to allocate or auction allowances to
entities other than potentially affected units, or to allocate or
auction fewer than the maximum permissible quantity of allowances and
retire the remainder. Under the CSAPR NOX Ozone Season Group
2 Trading Program only, additional allowances may be allocated if the
state elects to expand applicability to non-electric generating units
that would have been subject to the NOX Budget Trading
Program established for compliance with the NOX SIP
Call.\18\
---------------------------------------------------------------------------
\17\ 40 CFR 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A); 52.39(e)(1)(i),
(f)(1)(i), (h)(1)(i), (i)(1)(i).
\18\ See 40 CFR 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
---------------------------------------------------------------------------
Timely submission of state-determined allocations to EPA.
The SIP
[[Page 36855]]
revision must require the state to submit to EPA the amounts of any
allowances allocated or auctioned to each unit for each control period
(other than allowances initially set aside in the state's allocation or
auction process and later allocated or auctioned to such units from the
set-aside amount) by the following deadlines.\19\ Note that the
submission deadlines differ for amounts allocated or auctioned to units
considered existing units for CSAPR purposes and amounts allocated or
auctioned to other units.
---------------------------------------------------------------------------
\19\ See 40 CFR 52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C),
(b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C), (b)(8)(iii)(B)-(C),
(b)(9)(iii)(B)-(C); 52.39(e)(1)(ii)-(iii), (f)(1)(ii)-(iii),
(h)(1)(ii)-(iii), (i)(1)(ii)-(iii).
CSAPR NOX Annual, CSAPR NOX Ozone Season Group 1, CSAPR SO2 Group 1, and
CSAPR SO2 Group 2 Trading Programs
------------------------------------------------------------------------
Deadline for
Year of the control submission to EPA of
Units period allocations or
auction results
------------------------------------------------------------------------
Existing.................... 2017 and 2018....... June 1, 2016.
2019 and 2020....... June 1, 2017.
2021 and 2022....... June 1, 2018.
2023 and later years June 1 of the fourth
year before the
year of the control
period.
Other....................... All years........... July 1 of the year
of the control
period.
------------------------------------------------------------------------
CSAPR NOX Ozone Season Group 2 Trading Program
------------------------------------------------------------------------
Deadline for
Year of the control submission to EPA of
Units period allocations or
auction results
------------------------------------------------------------------------
Existing.................... 2019 and 2020....... June 1, 2018.
2021 and 2022....... June 1, 2019.
2023 and 2024....... June 1, 2020.
2025 and later years June 1 of the fourth
year before the
year of the control
period.
Other....................... All years........... July 1 of the year
of the control
period.
------------------------------------------------------------------------
No changes to allocations already submitted to EPA or
recorded. The SIP revision must not provide for any change to the
amounts of allowances allocated or auctioned to any unit after those
amounts are submitted to EPA or any change to any allowance allocation
determined and recorded by EPA under the federal trading program
regulations.\20\
---------------------------------------------------------------------------
\20\ See 40 CFR 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D); 52.39(e)(1)(iv),
(f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also expands program applicability as described below.\21\ Any new
definitions adopted in the SIP revision (in addition to the federal
trading program's definitions) may apply only for purposes of the SIP
revision's allocation or auction provisions.\22\
---------------------------------------------------------------------------
\21\ See 40 CFR 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8),
(b)(9); 52.39(e), (f), (h), (i).
\22\ See 40 CFR 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii),
(b)(5)(iii), (b)(8)(iii), (b)(9)(iv); 52.39(e)(1), (f)(2), (h)(1),
(i)(2).
---------------------------------------------------------------------------
In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP revision seeking to expand applicability under
the CSAPR NOX Ozone Season Group 1 or CSAPR NOX
Ozone Season Group 2 Trading Programs (or an integrated state trading
program) must meet the following further conditions:
Only electricity generating units with nameplate capacity
of at least 15 MWe. The SIP revision may expand applicability only to
additional fossil fuel-fired boilers or combustion turbines serving
generators producing electricity for sale, and only by lowering the
generator nameplate capacity threshold used to determine whether a
particular boiler or combustion turbine serving a particular generator
is a potentially affected unit. The nameplate capacity threshold
adopted in the SIP revision may not be less than 15 MWe.\23\ In
addition or alternatively, applicability under the CSAPR NOX
Ozone Season Group 2 Trading Program may be expanded to non-electric
generating units that would have been subject to the NOX
Budget Trading Program established for compliance with the
NOX SIP Call.\24\
---------------------------------------------------------------------------
\23\ See 40 CFR 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
\24\ See 40 CFR 52.38(b)(8)(ii), (b)(9)(ii).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also addresses the allocation or auction of emission allowances as
described above.\25\
---------------------------------------------------------------------------
\25\ See 40 CFR 52.38(b)(4), (b)(5), (b)(8), (b)(9).
---------------------------------------------------------------------------
In addition to the general submittal conditions and the other
applicable conditions described above, a CSAPR-related full SIP
revision must meet the following further conditions:
Complete, substantively identical trading program
provisions. The SIP revision must adopt complete state trading program
regulations substantively identical to the complete federal trading
program regulations at 40 CFR 97.402 through 97.435, 97.502 through
97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through
97.835, as applicable, except as described above in the case of a SIP
revision that seeks to replace the default allowance allocation and/or
applicability provisions.\26\
---------------------------------------------------------------------------
\26\ See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
---------------------------------------------------------------------------
Only non-substantive substitutions for the term ``State.''
The SIP revision may substitute the name of the state for the term
``State'' as used in the federal trading program regulations, but only
to the extent that EPA determines that the substitutions do not
substantively change the trading program regulations.\27\
---------------------------------------------------------------------------
\27\ See 40 CFR 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
---------------------------------------------------------------------------
[[Page 36856]]
Exclusion of provisions addressing units in Indian
country. The SIP revision may not impose requirements on any unit in
any Indian country within the state's borders and must not include the
federal trading program provisions governing allocation of allowances
from any Indian country NUSA for the state.\28\
---------------------------------------------------------------------------
\28\ See 40 CFR 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi);
52.39(f)(4), (i)(4).
---------------------------------------------------------------------------
IV. Kentucky's SIP Submittal and EPA's Analysis
A. Kentucky's Submittal
In CSAPR and the CSAPR Update, EPA found that air pollution
transported from Kentucky unlawfully affects other states' ability to
attain or maintain the 1997 8-hour ozone NAAQS, the 1997 annual
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and
the 2008 8-hour ozone NAAQS. As discussed below, Kentucky's submittal
addresses each of these NAAQS.
In the 2011 CSAPR rulemaking, among other findings, EPA determined
that air pollution transported from Kentucky would unlawfully affect
other states' ability to attain and maintain the 1997 annual
PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS,
established annual NOX and SO2 budgets for
Kentucky's EGUs representing full remedies for the Commonwealth's
interstate transport obligations with respect to these NAAQS, and
implemented the budgets by including the EGUs in annual NOX
and SO2 trading programs.\29\ Consequently, Kentucky's units
meeting the CSAPR applicability criteria are currently subject to CSAPR
FIPs that require participation in the CSAPR NOX Annual
Trading Program and the CSAPR SO2 Group 1 Trading Program in
order to address, in full, the Commonwealth's interstate transport
obligations with respect to both the 1997 annual PM2.5 NAAQS
and the 2006 24-hour PM2.5 NAAQS.\30\
---------------------------------------------------------------------------
\29\ See 76 FR at 48209-13.
\30\ See 40 CFR 52.38(a)(2); 52.39(b); 52.940(a); 52.941(a).
---------------------------------------------------------------------------
In the 2011 CSAPR rulemaking, EPA also determined that air
pollution transported from Kentucky would unlawfully affect other
states' ability to attain or maintain the 1997 8-hour ozone NAAQS,
established an ozone season NOX budget for Kentucky's EGUs
representing a partial remedy for the Commonwealth's interstate
transport obligations with respect to that NAAQS, and implemented the
budget by including the EGUs in an ozone season NOX trading
program.\31\ Later, in the 2016 CSAPR Update rulemaking, using updated
data and analyses, EPA determined that air pollution transported from
Kentucky would unlawfully affect other states' ability to maintain the
2008 8-hour ozone NAAQS, established an ozone season NOX
budget for Kentucky's EGUs representing a partial remedy for the
Commonwealth's interstate transport obligations with respect to that
NAAQS, and implemented the budget by including the units in a new ozone
season NOX trading program.\32\ Also in the CSAPR Update
rulemaking, EPA determined that Kentucky's previous ozone season
NOX budget established in the 2011 CSAPR rulemaking as a
partial remedy for the Commonwealth's interstate transport obligations
with respect to the 1997 8-hour ozone NAAQS now represents a full
remedy with respect to that NAAQS \33\ and coordinated compliance
requirements by allowing compliance with the new CSAPR Update budget to
serve the purpose of addressing the Commonwealth's obligations with
respect to the 1997 and 2008 8-hour ozone NAAQS.\34\ Most recently, in
a 2018 action approving a revision to Kentucky's SIP, based on further
updated data and analyses, EPA determined that Kentucky's ozone season
NOX budget established in the 2016 CSAPR Update rulemaking
as a partial remedy for the Commonwealth's interstate transport
obligations with respect to the 2008 8-hour ozone NAAQS now represents
a full remedy with respect to that NAAQS.\35\ Consequently, Kentucky
units meeting the CSAPR applicability criteria are currently subject to
CSAPR Update FIP requirements for participation in the CSAPR
NOX Ozone Season Group 2 Trading Program in order to
address, in full, the Commonwealth's interstate transport obligations
with respect to both the 1997 8-hour ozone NAAQS and the 2008 8-hour
ozone NAAQS.\36\
---------------------------------------------------------------------------
\31\ See 76 FR at 48209-13.
\32\ See 81 FR at 74507-09.
\33\ Id. at 74525.
\34\ Id. at 74563 n.169.
\35\ 83 FR 33730, 33759 (July 17, 2018).
\36\ See 40 CFR 52.38(b)(2)(iii); 52.940(b)(2).
---------------------------------------------------------------------------
If approved, Kentucky's September 14, 2018, SIP submission would
incorporate into the SIP CSAPR state trading program regulations
implementing the CSAPR and CSAPR Update emissions budgets for Kentucky
units' ozone season NOX, annual SO2, and annual
NOX emissions, thereby fully addressing through SIP
provisions the Commonwealth's interstate transport obligations with
respect to the 1997 8-hour ozone NAAQS, the 1997 annual
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and
the 2008 8-hour ozone NAAQS. As described in section II, pursuant to
the CSAPR regulations, full and unconditional approval of the SIP
revision by EPA would therefore automatically eliminate Kentucky EGU's
obligations under the CSAPR and CSAPR Update FIPs to participate in the
CSAPR federal trading programs.\37\
---------------------------------------------------------------------------
\37\ See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
---------------------------------------------------------------------------
The SIP submittal includes the addition of the following Kentucky
Administrative Regulations: 401 KAR 51:240 ``Cross-State Air Pollution
Rule (CSAPR) NOX annual trading program,'' 401 KAR 51:250
``Cross-State Air Pollution Rule (CSAPR) NOX ozone season
group 2 trading program,'' and 401 KAR 51:260 ``Cross-State Air
Pollution Rule (CSAPR) SO2 group 1 trading program.'' In
general, Kentucky's CSAPR state trading program rules are designed to
replace the corresponding federal trading program regulations. For
example, 401 KAR 51:240 ``Cross-State Air Pollution Rule (CSAPR)
NOX annual trading program'' is designed to replace subpart
AAAAA of 40 CFR part 97 (i.e., 40 CFR 97.401 through 97.435).
With regard to form, the CSAPR state trading program rules
generally incorporate the corresponding federal trading program section
or sections by reference, with a few exceptions.
With regard to content, the rules for each Kentucky CSAPR state
trading program differ from the corresponding CSAPR federal trading
program regulations in two main ways, as further described below.
First, the applicability provisions in the Kentucky rules require
participation in Kentucky CSAPR state trading programs only for units
in Kentucky, not for units in any other state or in Indian country
within the borders of Kentucky or any other state. Second, the Kentucky
rules omit some federal trading program provisions not applicable to
Kentucky's state trading programs, including provisions setting forth
the amounts of emissions budgets, NUSAs, Indian country NUSAs, and
variability limits for other states and provisions relating to EPA's
administration of Indian country NUSAs.
The September 14, 2018, SIP revisions were submitted to EPA by a
letter from the Secretary of the Kentucky Energy and Environment
Cabinet, as clarified in a subsequent December 18, 2018, letter. The
letter and enclosures describe steps taken by Kentucky to provide
public notice prior to adoption of the state rules.
[[Page 36857]]
B. EPA's Analysis of Kentucky's Submittal
At this time, EPA is proposing to take action on Kentucky SIP
submissions, which are designed to replace the federal CSAPR
NOX Ozone Season Group 2 Trading Program, federal CSAPR
NOX Annual Trading Program, and the federal CSAPR
SO2 Group 1 Trading Program with regard to Kentucky units.
1. Timeliness and Completeness of Submittal
Kentucky submitted the SIP revisions to EPA on September 14, 2018,
and EPA has determined that the submittals comply with the applicable
minimum completeness criteria in section 2.3 of appendix V to 40 CFR
part 51. The SIP submission deadline specified in 40 CFR
52.38(a)(5)(vi), 52.38(b)(9)(viii), and 52.39(f)(6) is defined with
reference to certain separate CSAPR deadlines for submission of state-
determined allowance allocations to EPA and is therefore inoperative in
the case of a SIP revision that does not seek to replace the EPA-
administered allowance allocation methodology and process set forth in
the federal trading program rules. Because Kentucky is seeking to
replace the federal trading program rules with substantively identical
state trading program rules and is not seeking to replace the EPA-
administered allowance allocation methodology and process, the SIP
submission deadline does not apply.\38\
---------------------------------------------------------------------------
\38\ See 40 CFR 52.38(a)(5)(vi), 52.38(b)(9)(viii), and
52.39(f)(6).
---------------------------------------------------------------------------
2. Complete, Substantively Identical Trading Program Provisions
The Kentucky rules adopt state budgets identical to the Ozone
Season Group 2 NOX budgets and the Phase 2 NOX
Annual and SO2 Group 1 budgets for Kentucky under the
federal trading programs. The Kentucky rules also adopt almost all of
the provisions of the federal CSAPR NOX Ozone Season Group 2
Trading Program, federal CSAPR NOX Annual Trading Program
and federal CSAPR SO2 Group 1 Trading Program, including the
default allowance allocation provisions. Under the Commonwealth's
rules, EPA would administer the programs and would retain the authority
to allocate allowances.
With the following exceptions, the Kentucky rules comprising
Kentucky's CSAPR state trading program for ozone season NOX
emissions incorporate by reference all of the provisions of 40 CFR
97.801 through 97.835, the rules comprising the state program for
annual NOX emissions incorporate by reference all of the
provisions of 40 CFR 97.401 through 97.435, and the rules comprising
the state program for SO2 emissions incorporate by reference
all of the provisions of 40 CFR 97.601 through 97.635.
The first exception is that, as discussed subsequently in section
IV.B.3, 401 KAR 51:240, Section 2, 401 KAR 51:250, Section 2, and 401
KAR 51:260, Section 2, of the Kentucky rules limit applicability of the
rules to units located in Kentucky. This modification of the
applicability provisions in the federal trading program rules is
appropriate for state trading program rules which necessarily must be
designed to apply only to sources subject to the state's jurisdiction.
The second exception is that the Kentucky rules do not incorporate
the complete provisions of 40 CFR 97.410, 97.810, and 97.610 concerning
the amounts of emissions budgets, NUSAs, Indian country NUSAs, and
variability limits for the three CSAPR federal trading programs.
Instead, Kentucky rules 401 KAR 51:240, Section 3(7), 401 KAR 51:250,
Section 3(7), and 401 KAR 51:260, Section 3(7) adopt full-text
replacement provisions specifying (and describing the relationships
among) the emissions budget, NUSA, and variability limit amounts for
the three trading programs only as applicable to Kentucky units and
only for control periods occurring after 2016. The full-text
replacement provisions adopted by Kentucky are substantively identical
to the provisions of the respective federal rules that would apply to
Kentucky units after 2016. For purposes of Kentucky's state trading
program rules, which apply only to Kentucky units and only starting in
2018, the omission of provisions of the corresponding federal rules
that apply to units located in other states or Indian country and
provisions that applied to Kentucky units only for control periods
before 2017 is not a substantive change from the federal trading
program regulations.
The third exception is that Kentucky rules 401 KAR 51:240, 51:250,
and 51:260 omit 40 CFR 97.411(b)(2), 97.411(c)(5)(iii), 97.412(b),
97.421(h), 97.421(j), 97.811(b)(2), 97.811(c)(5)(iii), 97.812(b),
97.821(h), 97.821(j), 97.611(b)(2), 97.611(c)(5)(iii), 97.612(b),
97.621(h), and 97.621(j), concerning EPA's administration of Indian
country NUSAs. Omission of these provisions from Kentucky's state
trading program rules is required, as discussed in section IV.B.4.
The final exception is that, only for purposes of units located in
the Commonwealth, Kentucky rules 401 KAR 51.240, Section 1(2), 401 KAR
51.250, Section 1(2), and 401 KAR 51.260, Section 1(2), define the term
``Permitting Authority'' as the Kentucky Energy and Environmental
Cabinet. The definition in the federal trading program regulations is
not altered with respect to units located in other states or Indian
country. Because the term ``permitting authority'' in the federal
trading program regulations is intended to reference the appropriate
permitting authority for each unit under 40 CFR part 70 or part 71, the
definition in Kentucky's rules merely adds specificity without causing
a substantive change.
None of the omissions undermine the completeness of Kentucky's
state trading program regulations, and EPA has determined that
Kentucky's proposed SIP revision makes no substantive changes to the
provisions of the federal trading program regulations. Thus, Kentucky's
SIP revision meets the condition under 40 CFR 52.38(a)(5), 52.38(b)(9),
and 52.39(f) that the SIP revision must adopt complete state trading
program regulations substantively identical to the complete federal
trading program regulations at 40 CFR 97.402 through 97.435, 40 CFR
97.802 through 97.835, and 97.602 through 97.635, respectively, except
to the extent permitted in the case of a SIP revision that seeks to
replace the default allowance allocation and/or applicability
provisions.
3. Only Non-Substantive Substitutions for the Term ``State''
401 KAR 51:240, Section 3(2)(b), 401 KAR 51:250, Section 3(2)(b),
and 401 KAR 51:260, Section 3(2)(b) of the Kentucky rules substitute
the phrase ``in Kentucky,'' for the phrase ``in a State (and Indian
country within the borders of such State)'' in the corresponding
federal trading program regulations at 40 CFR 97.404(a)(1) and (b),
97.804(a)(1) and (b), and 97.604(a)(1) and (b), respectively. These
provisions of the Kentucky rules define the units that are required to
participate in Kentucky's CSAPR state trading programs. The
substitutions appropriately exclude all units located in other states
or in Indian country within the borders of any state, thereby limiting
the applicability of Kentucky's state trading programs to units that
are subject to Kentucky's jurisdiction. These substitutions do not
substantively change the provisions of CSAPR's federal trading program
regulations. The remaining Kentucky rules do not substitute for the
term ``State'' as used in the federal trading program regulations.
Kentucky's SIP revision therefore meets the condition under 40 CFR
52.38(a)(5)(iii),
[[Page 36858]]
52.38(b)(9)(v), and 52.39(f)(3) that the SIP revision may substitute
the name of the state for the term ``State'' as used in the federal
trading program regulations, but only to the extent that EPA determines
that the substitutions do not substantively change the provisions of
the federal trading program regulations.
4. Exclusion of Provisions Addressing Indian Country
As discussed above in section IV.B.3, paragraphs 401 KAR 51:240,
Section 3(2)(b), 401 KAR 51:250, Section 3(2)(b), and 401 KAR 51:260,
Section 3(2)(b) of the Kentucky rules do not include units in Indian
country within Kentucky's borders in the applicable requirements of the
Commonwealth's rules. In addition, as required under 40 CFR
52.38(a)(5)(iv), 52.38(b)(9)(vi), and 52.39(f)(4), Kentucky's SIP
revisions exclude federal trading program provisions related to EPA's
process for allocating and recording allowances from Indian country
NUSAs (i.e., 40 CFR 97.411(b)(2), 97.411(c)(5)(iii), 97.412(b),
97.421(h), 97.421(j), 97.811(b)(2), 97.811(c)(5)(iii), 97.812(b),
97.821(h), 97.821(j), 97.611(b)(2), 97.611(c)(5)(iii), 97.612(b),
97.621(h), and 97.621(j)). Kentucky's SIP revision therefore meets the
conditions under 52.38(a)(5)(iv), 52.38(b)(9)(vi), and 52.39(f)(4) that
a SIP submittal must not impose any requirement on any unit in Indian
country within the borders of the Commonwealth and must exclude certain
provisions related to administration of Indian country NUSAs.
V. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the Kentucky Regulations 401 KAR 51:240, entitled ``Cross-
State Air Pollution Rule (CSAPR) NOX annual trading
program''; 401 KAR 51:250, entitled ``Cross-State Air Pollution Rule
(CSAPR) NOX ozone season group 2 trading program''; and 401
KAR 51.260, entitled ``Cross-State Air Pollution Rule SO2
(CSAPR) group 1 trading program.'' The rules became state-effective as
of July 5, 2018. EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and at the
EPA Region 4 office (please contact the person identified in the ``For
Further Information Contact'' section of this preamble for more
information).
VI. Proposed Action
EPA is proposing to approve Kentucky's September 14, 2018, SIP
submittals concerning the establishment for Kentucky units of CSAPR
state trading programs for ozone season NOX emissions and
annual NOX and SO2 emissions. The proposed
revisions would adopt into the SIP state trading program rules codified
in Kentucky regulations at 401 KAR 51:240, ``Cross-State Air Pollution
Rule (CSAPR) NOX annual trading program,'' 401 KAR 51:250,
``Cross-State Air Pollution Rule (CSAPR) NOX ozone season
group 2 trading program,'' and 401 KAR 51.260, ``Cross-State Air
Pollution Rule (CSAPR) SO2 group 1 trading program.'' These
Kentucky CSAPR state trading programs would be integrated with the
federal CSAPR NOX Annual Trading Program, the federal CSAPR
NOX Ozone Season Group 2 Trading Program, and the federal
CSAPR SO2 Group 1 Trading Program, respectively, and would
be substantively identical to the federal trading programs.\39\ If EPA
approves these SIP revisions, Kentucky units therefore would generally
be required to meet requirements under Kentucky's CSAPR state trading
programs equivalent to the requirements the units otherwise would have
been required to meet under the corresponding CSAPR federal trading
programs. EPA is proposing to approve the September 14, 2018, SIP
revisions because they meet the requirements of the CAA and EPA's
regulations for approval of a CSAPR full SIP revision replacing a
federal trading program with a state trading program that is integrated
with and substantively identical to the federal trading program except
for permissible differences, as discussed in section IV of this action.
---------------------------------------------------------------------------
\39\ As previously discussed in sections III and IV.B.2, under
Kentucky's regulations, the Commonwealth will retain EPA's default
allowance allocation methodology and EPA will remain the
implementing authority for administration of the trading program.
---------------------------------------------------------------------------
EPA promulgated FIPs requiring Kentucky units to participate in the
federal CSAPR NOX Ozone Season Group 2 Trading Program, the
federal CSAPR NOX Annual Trading Program, and the federal
CSAPR SO2 Group 1 Trading Program in order to address
Kentucky's obligations under CAA section 110(a)(2)(D)(i)(I) with
respect to the 1997 8-hour ozone NAAQS, 1997 annual PM2.5
NAAQS, 2006 24-hour PM2.5 NAAQS, and 2008 8-hour ozone NAAQS
in the absence of SIP provisions addressing those requirements.
Approval of the Kentucky SIP submittals adopting CSAPR state trading
program rules for ozone season NOX and annual NOX
and SO2 substantively identical to the corresponding CSAPR
federal trading program regulations would satisfy Kentucky's obligation
pursuant to CAA section 110(a)(2)(D)(i)(I) to prohibit emissions which
will significantly contribute to nonattainment or interfere with
maintenance of these NAAQS in any other state and therefore would
correct the same deficiency in the SIP that otherwise would be
corrected by those CSAPR FIPs. Under the CSAPR regulations, upon EPA's
full and unconditional approval of a SIP revision as correcting the
SIP's deficiency that is the basis for a particular CSAPR FIP, the
obligation to participate in the corresponding CSAPR federal trading
program is automatically eliminated for units subject to the state's
jurisdiction (but not for any units located in any Indian country
within the state's borders).\40\ Approval of Kentucky's SIP submittal
establishing CSAPR state trading program rules for ozone season
NOX emissions and annual NOX and SO2
emissions therefore would result in automatic termination of the
obligations of Kentucky units to participate in the federal CSAPR
NOX Ozone Season Group 2 Trading Program, the federal CSAPR
NOX Annual Trading Program, and the federal CSAPR
SO2 Group 1 Trading Program.
---------------------------------------------------------------------------
\40\ See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j); see also 40
CFR 52.940(a)(1), (b)(2); 52.941(a).
---------------------------------------------------------------------------
VII. 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. This action merely
proposes to approve 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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
[[Page 36859]]
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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 17, 2019.
Mary S. Walker,
Regional Administrator, Region 4.
[FR Doc. 2019-16052 Filed 7-29-19; 8:45 am]
BILLING CODE 6560-50-P
