Air Plan Approval; Kentucky: Cross-State Air Pollution Rule, 7449-7452 [2020-01747]
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requires the approval of the Office of
Management and Budget under the
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3501 et seq.).
List of Subjects in 15 CFR Part 2013
Countervailing duties, Foreign trade,
Imports.
PART 2013—[REMOVED]
For the reasons stated in the
preamble, and under the authority of 19
U.S.C. 1677(36), the Office of the United
States Trade Representative removes
part 2013 of chapter XX of title 15 of the
Code of Federal Regulations.
Joseph Barloon,
General Counsel, Office of the U.S. Trade
Representative.
[FR Doc. 2020–02445 Filed 2–7–20; 8:45 am]
BILLING CODE 3290–F0–P
DATES:
ENVIRONMENTAL PROTECTION
AGENCY
Air Plan Approval; Kentucky: CrossState Air Pollution Rule
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving changes 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 approves into the SIP the
Commonwealth’s regulations requiring
large Kentucky EGUs to participate in
CSAPR state trading programs for
annual NOX emissions and annual SO2
emissions integrated with the CSAPR
federal trading programs, replacing the
corresponding FIP requirements. EPA is
approving the portions of 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
SUMMARY:
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EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2019–0155. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air and Radiation Division,
U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. EPA requests that
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
ADDRESSES:
[EPA–R04–OAR–2019–0155; FRL–10004–
69–Region 4]
15:55 Feb 07, 2020
This rule is effective March 11,
2020.
40 CFR Part 52
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regulations for approval of a CSAPR full
SIP revision replacing the requirements
of a CSAPR FIP. Under the CSAPR
regulations, approval of these portions
of the SIP revision automatically
eliminates Kentucky units’ obligations
to participate in CSAPR’s federal trading
programs for 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
standard (NAAQS) and the 2006 24hour PM2.5 NAAQS. Approval of these
portions 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 annual
PM2.5 NAAQS and 2006 24-hour PM2.5
NAAQS.
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D.
Brad Akers, Air Regulatory Management
Section, Air Planning and
Implementation Branch, 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.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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I. 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),1 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.
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
1 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). EPA acknowledges that the D.C.
Circuit issued decisions in Wisconsin v. EPA, 938
F.3d 303 (Sept. 13, 2019) and New York v. EPA, 781
Fed. Appx. 4 (Oct. 1, 2019) regarding the CSAPR
Update; however, those decisions did not address
the annual programs designed to fulfill the
requirements of the 1997 and 2006 PM2.5 NAAQS.
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trading programs or state emissions
trading programs integrated with the
federal programs.2 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.3 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).4 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.5
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.
2 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.
3 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.
4 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).
5 See 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e),
(h).
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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.6 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.7 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.8
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
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).
8 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).
apply, unless EPA’s approval of the SIP
revision provides otherwise.9
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.10 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.11
In a notice of proposed rulemaking
(NPRM) published on July 30, 2019 (84
FR 36852), EPA proposed to approve
Kentucky’s September 14, 2018, SIP
submittal designed to replace the
CSAPR federal annual SO2 and NOX
trading programs and ozone season NOX
trading program. Comments on the
NPRM were due on or before August 29,
2019. EPA received adverse comments
on the proposed action to approve the
portions of Kentucky’s submittal
designed to replace the CSAPR federal
ozone season NOX trading program.
However, EPA received no adverse
comments on the proposed action to
approve the portions of Kentucky’s
submittal designed to replace the
CSAPR federal annual SO2 and NOX
trading programs.
In this action, EPA is finalizing
approval of the portions of Kentucky’s
SIP which replace the CSAPR federal
annual SO2 and NOX trading programs
only. EPA will address the remaining
portions of the September 14, 2018, SIP
submittal in a separate action. Please
refer to the NPRM for more detailed
information regarding the SIP revision
and the Agency’s rationale for today’s
final rulemaking.
II. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
6 See
7 See
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9 See
40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
76 FR at 48209–13.
11 See 40 CFR 52.38(a)(2)(i); 52.39(b); 52.940(a)(1);
52.941(a).
10 See
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accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of the Kentucky
Regulations 401 KAR 51:240, entitled
‘‘Cross-State Air Pollution Rule (CSAPR)
NOX annual trading program’’ and 401
KAR 51.260, entitled ‘‘Cross-State Air
Pollution Rule (CSAPR) SO2 group 1
trading program.’’ EPA is approving the
portions of the SIP revision concerning
these CSAPR state trading programs
because the SIP revision meets the
requirements of the Act and EPA’s
regulations for approval of a CSAPR full
SIP revision replacing the requirements
of a CSAPR FIP. The rules became stateeffective 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).
Therefore, these materials have been
approved by EPA for inclusion in the
State implementation plan, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference in the next
update to the SIP compilation.12
III. Final Action
EPA is approving portions of
Kentucky’s September 14, 2018, SIP
submittal, as clarified by the December
18, 2018, letter, concerning the
establishment of CSAPR state trading
programs for Kentucky units for annual
NOX and SO2 emissions. These portions
of this SIP revision 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’’
and 401 KAR 51.260, ‘‘Cross-State Air
Pollution Rule (CSAPR) SO2 group 1
trading program.’’ These Kentucky
CSAPR state trading programs will be
integrated with the federal CSAPR NOX
Annual Trading Program and the federal
CSAPR SO2 Group 1 Trading Program,
respectively, and are substantively
identical to the federal trading
programs. Kentucky units therefore will
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. Under the Commonwealth’s
regulations, Kentucky will retain EPA’s
default allowance allocation
12 See
62 FR 27968 (May 22, 1997).
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methodology and EPA will remain the
implementing authority for
administration of the trading programs.
EPA is approving the 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.
EPA promulgated the FIP provisions
requiring Kentucky units to participate
in 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 Annual PM2.5
NAAQS and the 2006 24-hour PM2.5
NAAQS in the absence of SIP provisions
addressing those requirements.
Approving the Kentucky SIP submittal
adopting CSAPR state trading program
rules for annual NOX and SO2
substantively identical to the
corresponding CSAPR federal trading
program regulations (or differing only
with respect to the allowance allocation
methodology) corrects the same
deficiencies 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).13
EPA’s approval of portions of
Kentucky’s SIP submittal establishing
CSAPR state trading program rules for
annual NOX emissions and annual SO2
emissions therefore results in automatic
termination of the obligations of
Kentucky units to participate in the
federal CSAPR NOX Annual Trading
Program and the federal CSAPR SO2
Group 1 Trading Program.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. These actions merely approve
state law as meeting Federal
requirements and do not impose
13 See
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7451
additional requirements beyond those
imposed by state law. For that reason,
these actions:
• Are not significant regulatory
actions 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);
• Are not Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
actions because SIP approvals are
exempted under Executive Order 12866;
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are 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.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are 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
• Do not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
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copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing these actions and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This action is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of these
actions must be filed in the United
States Court of Appeals for the
appropriate circuit by April 10, 2020.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of these actions for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. These actions
may not be challenged later in
proceedings to enforce its requirements.
See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: January 15, 2020.
Mary S. Walker,
Regional Administrator, Region 4.
3. Amend § 52.39 by revising
paragraph (l)(3) to read as follows:
■
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
§ 52.39 What are the requirements of the
Federal Implementation Plans (FIPs) for the
Cross-State Air Pollution Rule (CSAPR)
relating to emissions of sulfur dioxide?
*
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42.U.S.C. 7401 et seq.
Subpart A–General Provisions
2. Amend § 52.38 by revising
paragraph (a)(8)(iii) to read as follows:
■
§ 52.38 What are the requirements of the
Federal Implementation Plans (FIPs) for the
Cross-State Air Pollution Rule (CSAPR)
relating to emissions of nitrogen oxides?
(a) * * *
(8) * * *
(iii) For each of the following States,
the Administrator has approved a SIP
revision under paragraph (a)(5) of this
section as correcting the SIP’s
deficiency that is the basis for the
CSAPR Federal Implementation Plan set
forth in paragraphs (a)(1), (a)(2)(i), and
(a)(3) and (4) of this section with regard
to sources in the State (but not sources
in any Indian country within the
borders of the State): Alabama, Georgia,
Indiana, Kentucky, Missouri, and South
Carolina.
*
*
*
*
*
*
*
*
*
(l) * * *
(3) For each of the following States,
the Administrator has approved a SIP
revision under paragraph (f) of this
section as correcting the SIP’s
deficiency that is the basis for the
CSAPR Federal Implementation Plan set
forth in paragraphs (a), (b), (d), and (e)
of this section with regard to sources in
the State (but not sources in any Indian
country within the borders of the State):
Indiana, Kentucky, and Missouri.
*
*
*
*
*
Subpart S—Kentucky
4. Amend § 52.920, in paragraph (c),
in Table 1 under the heading ‘‘Chapter
51 Attainment and Maintenance of the
National Ambient Air Quality
Standards’’ by adding in numerical
order entries for ‘‘401 KAR 51:240’’ and
‘‘401 KAR 51:260’’ to read as follows:
■
§ 52.920
*
Identification of plan.
*
*
(c) * * *
*
*
TABLE 1—EPA-APPROVED KENTUCKY REGULATIONS
State citation
State
effective
date
Title/subject
*
*
*
EPA approval date
*
*
*
Explanation
*
Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
*
401 KAR 51:240 ..............
401 KAR 51:260 ..............
*
*
*
*
*
Cross-State
Air
Pollution
Rule
(CSAPR) NOX annual trading program.
Cross-State
Air
Pollution
Rule
(CSAPR) SO2 group 1 trading program.
*
*
*
*
*
7/5/2018
7/5/2018
*
*
*
2/10/2020 [Insert Federal Register citation].
2/10/2020 [Insert Federal Register citation].
*
*
*
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Agencies
[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Rules and Regulations]
[Pages 7449-7452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01747]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0155; FRL-10004-69-Region 4]
Air Plan Approval; Kentucky: Cross-State Air Pollution Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving changes
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 approves into the SIP the Commonwealth's
regulations requiring large Kentucky EGUs to participate in CSAPR state
trading programs for annual NOX emissions and annual
SO2 emissions integrated with the CSAPR federal trading
programs, replacing the corresponding FIP requirements. EPA is
approving the portions of 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 these portions of the SIP
revision automatically eliminates Kentucky units' obligations to
participate in CSAPR's federal trading programs for 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 standard (NAAQS) and the 2006 24-hour
PM2.5 NAAQS. Approval of these portions 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 annual PM2.5 NAAQS
and 2006 24-hour PM2.5 NAAQS.
DATES: This rule is effective March 11, 2020.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2019-0155. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Regulatory
Management Section, Air Planning and Implementation Branch, 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. 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),\1\ 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.
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\1\ 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). EPA acknowledges that the
D.C. Circuit issued decisions in Wisconsin v. EPA, 938 F.3d 303
(Sept. 13, 2019) and New York v. EPA, 781 Fed. Appx. 4 (Oct. 1,
2019) regarding the CSAPR Update; however, those decisions did not
address the annual programs designed to fulfill the requirements of
the 1997 and 2006 PM2.5 NAAQS.
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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
[[Page 7450]]
trading programs or state emissions trading programs integrated with
the federal programs.\2\ 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.\3\ 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.
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\2\ 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.
\3\ 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.
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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).\4\ 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.\5\ 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.
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\4\ 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).
\5\ See 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
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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.\6\ 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.
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\6\ See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
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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.\7\ 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.\8\
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\7\ See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
\8\ 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).
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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.\9\
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\9\ See 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
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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.\10\ 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.\11\
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\10\ See 76 FR at 48209-13.
\11\ See 40 CFR 52.38(a)(2)(i); 52.39(b); 52.940(a)(1);
52.941(a).
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In a notice of proposed rulemaking (NPRM) published on July 30,
2019 (84 FR 36852), EPA proposed to approve Kentucky's September 14,
2018, SIP submittal designed to replace the CSAPR federal annual
SO2 and NOX trading programs and ozone season
NOX trading program. Comments on the NPRM were due on or
before August 29, 2019. EPA received adverse comments on the proposed
action to approve the portions of Kentucky's submittal designed to
replace the CSAPR federal ozone season NOX trading program.
However, EPA received no adverse comments on the proposed action to
approve the portions of Kentucky's submittal designed to replace the
CSAPR federal annual SO2 and NOX trading
programs.
In this action, EPA is finalizing approval of the portions of
Kentucky's SIP which replace the CSAPR federal annual SO2
and NOX trading programs only. EPA will address the
remaining portions of the September 14, 2018, SIP submittal in a
separate action. Please refer to the NPRM for more detailed information
regarding the SIP revision and the Agency's rationale for today's final
rulemaking.
II. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In
[[Page 7451]]
accordance with requirements of 1 CFR 51.5, EPA is finalizing the
incorporation by reference of the Kentucky Regulations 401 KAR 51:240,
entitled ``Cross-State Air Pollution Rule (CSAPR) NOX annual
trading program'' and 401 KAR 51.260, entitled ``Cross-State Air
Pollution Rule (CSAPR) SO2 group 1 trading program.'' EPA is
approving the portions of the SIP revision concerning these CSAPR state
trading programs because the SIP revision meets the requirements of the
Act and EPA's regulations for approval of a CSAPR full SIP revision
replacing the requirements of a CSAPR FIP. 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). Therefore, these materials have been approved by EPA for
inclusion in the State implementation plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.\12\
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\12\ See 62 FR 27968 (May 22, 1997).
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III. Final Action
EPA is approving portions of Kentucky's September 14, 2018, SIP
submittal, as clarified by the December 18, 2018, letter, concerning
the establishment of CSAPR state trading programs for Kentucky units
for annual NOX and SO2 emissions. These portions
of this SIP revision 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'' and 401
KAR 51.260, ``Cross-State Air Pollution Rule (CSAPR) SO2
group 1 trading program.'' These Kentucky CSAPR state trading programs
will be integrated with the federal CSAPR NOX Annual Trading
Program and the federal CSAPR SO2 Group 1 Trading Program,
respectively, and are substantively identical to the federal trading
programs. Kentucky units therefore will 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. Under the
Commonwealth's regulations, Kentucky will retain EPA's default
allowance allocation methodology and EPA will remain the implementing
authority for administration of the trading programs. EPA is approving
the 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.
EPA promulgated the FIP provisions requiring Kentucky units to
participate in 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 Annual PM2.5 NAAQS and the 2006 24-
hour PM2.5 NAAQS in the absence of SIP provisions addressing
those requirements. Approving the Kentucky SIP submittal adopting CSAPR
state trading program rules for annual NOX and
SO2 substantively identical to the corresponding CSAPR
federal trading program regulations (or differing only with respect to
the allowance allocation methodology) corrects the same deficiencies 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).\13\ EPA's
approval of portions of Kentucky's SIP submittal establishing CSAPR
state trading program rules for annual NOX emissions and
annual SO2 emissions therefore results in automatic
termination of the obligations of Kentucky units to participate in the
federal CSAPR NOX Annual Trading Program and the federal
CSAPR SO2 Group 1 Trading Program.
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\13\ See 40 CFR 52.38(a)(6); 52.39(j).
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IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. These actions merely
approve state law as meeting Federal requirements and do not impose
additional requirements beyond those imposed by state law. For that
reason, these actions:
Are not significant regulatory actions 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);
Are not Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory actions because SIP approvals are exempted under
Executive Order 12866;
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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
Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a
[[Page 7452]]
copy of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing these
actions and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of these actions must be filed in the United States Court of Appeals
for the appropriate circuit by April 10, 2020. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. These actions may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: January 15, 2020.
Mary S. Walker,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart A-General Provisions
0
2. Amend Sec. 52.38 by revising paragraph (a)(8)(iii) to read as
follows:
Sec. 52.38 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of nitrogen oxides?
(a) * * *
(8) * * *
(iii) For each of the following States, the Administrator has
approved a SIP revision under paragraph (a)(5) of this section as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan set forth in paragraphs (a)(1), (a)(2)(i), and
(a)(3) and (4) of this section with regard to sources in the State (but
not sources in any Indian country within the borders of the State):
Alabama, Georgia, Indiana, Kentucky, Missouri, and South Carolina.
* * * * *
0
3. Amend Sec. 52.39 by revising paragraph (l)(3) to read as follows:
Sec. 52.39 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of sulfur dioxide?
* * * * *
(l) * * *
(3) For each of the following States, the Administrator has
approved a SIP revision under paragraph (f) of this section as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan set forth in paragraphs (a), (b), (d), and (e) of
this section with regard to sources in the State (but not sources in
any Indian country within the borders of the State): Indiana, Kentucky,
and Missouri.
* * * * *
Subpart S--Kentucky
0
4. Amend Sec. 52.920, in paragraph (c), in Table 1 under the heading
``Chapter 51 Attainment and Maintenance of the National Ambient Air
Quality Standards'' by adding in numerical order entries for ``401 KAR
51:240'' and ``401 KAR 51:260'' to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA-Approved Kentucky Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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* * * * * * *
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Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
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* * * * * * *
401 KAR 51:240................. Cross-State Air 7/5/2018 2/10/2020 [Insert .......................
Pollution Rule Federal Register
(CSAPR) NOX citation].
annual trading
program.
401 KAR 51:260................. Cross-State Air 7/5/2018 2/10/2020 [Insert .......................
Pollution Rule Federal Register
(CSAPR) SO2 group citation].
1 trading program.
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[FR Doc. 2020-01747 Filed 2-7-20; 8:45 am]
BILLING CODE 6560-50-P