[Federal Register Volume 85, Number 49 (Thursday, March 12, 2020)]
[Proposed Rules]
[Pages 14442-14449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05013]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0217; FRL-10006-37-Region 4]
Air Plan Approval; Kentucky; Infrastructure Requirements for the
2015 8-Hour Ozone National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the State Implementation Plan (SIP) submission,
provided by the Commonwealth of Kentucky, Energy and Environment
Cabinet, Department for Environmental Protection, through the Kentucky
Division for Air Quality (KDAQ), on January 9, 2019, to demonstrate
that the Commonwealth meets the infrastructure requirements of the
Clean Air Act (CAA or Act) for the 2015 8-hour ozone national ambient
air quality standard (NAAQS). Whenever EPA promulgates a new or revised
NAAQS, the CAA requires that each state adopt and submit a SIP for the
implementation, maintenance and enforcement of each such NAAQS. KDAQ
certified that the Kentucky SIP contains provisions that ensure the
2015 8-hour ozone NAAQS is implemented, enforced, and maintained in
Kentucky.
[[Page 14443]]
EPA is proposing to determine that Kentucky's submission addresses
certain infrastructure elements for the 2015 8-hour ozone NAAQS.
DATES: Written comments must be received on or before April 13, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2019-0217 at http://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 http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Tiereny Bell, 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. Ms. Bell can be reached
via electronic mail at [email protected] or the telephone number
(404) 562-9088.
SUPPLEMENTARY INFORMATION:
I. Background
On October 1, 2015, (published on October 26, 2015 (80 FR 65292)),
EPA promulgated a revised primary and secondary NAAQS for ozone
revising the 8-hour ozone NAAQS from 0.075 parts per million (ppm) to a
new more protective level of 0.070 ppm. Pursuant to section 110(a)(1)
of the CAA, states are required to submit SIP revisions meeting the
applicable requirements of section 110(a)(2) within three years after
promulgation of a new or revised NAAQS or within such shorter period as
EPA may prescribe. Section 110(a)(2) requires states to address basic
SIP elements such as requirements for monitoring, basic program
requirements and legal authority that are designed to assure attainment
and maintenance of the NAAQS. This particular type of SIP is commonly
referred to as an ``infrastructure SIP.'' States were required to
submit such SIPs for the 2015 8-hour ozone NAAQS to EPA no later than
October 1, 2018.\1\
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\1\ In these infrastructure SIP submissions States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2).
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This rulemaking is proposing to approve portions of Kentucky's
January 9, 2019, ozone infrastructure SIP submission for the applicable
requirements of the 2015 8-hour ozone NAAQS, with the exception of the
interstate transport provisions of section 110(a)(2)(D)(i)(I)
pertaining to contribution to nonattainment or interference with
maintenance in other states; the prevention of significant
deterioration (PSD) provisions related to major sources under sections
110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J); and air quality
modeling and submission of modeling data under sections 110(a)(2)(K).
With respect to the interstate transport provisions of section
110(a)(2)(D)(i)(I), the PSD provisions related to major sources under
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J), and the
air quality modeling provisions under section 110(a)(2)(K), EPA will
address these in separate rulemaking actions.
II. What elements are required under sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains.\2\
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\2\ Throughout this rulemaking, unless otherwise indicated, the
term ``Kentucky Administrative Regulations'' or ``KAR'' indicates
that the cited regulation has been approved into Kentucky's
federally-approved SIP. The term ``KRS'' indicates cited Kentucky
Revised Statutes, which govern the Commonwealth of Kentucky and are
not a part of the SIP unless otherwise indicated.
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More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements of Section 110(a)(2) are listed below and summarized in
Section IV, and in EPA's September 13, 2013, memorandum entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2).'' \3\
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\3\ Two elements identified in section 110(a)(2) are not
governed by the three-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather are due at the time the nonattainment
area plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D, title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, title I of the CAA. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the Part D nonattainment permitting requirements of
110(a)(2)(C).
110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)(2)(C): Programs for Enforcement of Control Measures
and for Construction or Modification of Stationary Sources \4\
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\4\ As mentioned above, the Part D permit program for
construction and modification of stationary sources is not relevant
to this proposed rulemaking.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution
Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict
of Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP Revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \5\
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\5\ As also mentioned above, this element is not relevant to
this proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials,
Public
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Notification, and Prevention of Significant Deterioration (PSD) and
Visibility Protection
110(a)(2)(K): Air Quality Modeling and Submission of
Modeling Data
110(a)(2)(L): Permitting fees
110(a)(2)(M): Consultation and Participation by Affected
Local Entities
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from Kentucky that addresses
certain infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2015 8-hour ozone NAAQS. Whenever EPA promulgates a
new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP
submissions to provide for the implementation, maintenance, and
enforcement of the NAAQS, commonly referred to as an ``infrastructure
SIP.'' These submissions must meet the various requirements of CAA
section 110(a)(2), as applicable. Due to ambiguity in some of the
language of CAA section 110(a)(2), EPA believes that it is appropriate
to interpret these provisions in the specific context of acting on
infrastructure SIP submissions. EPA has previously provided
comprehensive guidance on the application of these provisions through a
guidance document for infrastructure SIP submissions and through
regional actions on infrastructure submissions.\6\ Unless otherwise
noted below, we are following that existing approach in acting on this
submission. In addition, in the context of acting on such
infrastructure submissions, EPA evaluates the submitting state's SIP
for facial compliance with statutory and regulatory requirements, not
for the state's implementation of its SIP.\7\ EPA has other authority
to address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\6\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on Kentucky's infrastructure SIP to address the 2010 Nitrogen
Dioxide NAAQS. (81 FR 41488 (June 27, 2016)).
\7\ See Mont. Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th
Cir. 2018).
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IV. What is EPA's analysis of how Kentucky addressed the elements of
the sections 110(a)(1) and (2) ``Infrastructure'' provisions?
Kentucky's January 9, 2019 infrastructure submission addresses the
provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section
110(a)(2)(A) requires that each implementation plan include enforceable
emission limitations and other control measures, means, or techniques
(including economic incentives such as fees, marketable permits, and
auctions of emissions rights), as well as schedules and timetables for
compliance, as may be necessary or appropriate to meet the applicable
requirements.
Kentucky's submission cites to numerous SIP-approved regulations
that include enforceable emission limits and other control measures
found in 401 Kentucky Administrative Regulations (KAR) Chapters 50-53,
59, 61, 63, and 65 to demonstrate that the Commonwealth meets the
requirements of this element, including the following:
Chapter 50 General Administrative Procedures: 401 KAR
50:010. Definitions for 401 KAR Chapter 50; 401 KAR 50:012. General
application; 401 KAR 50:015. Documents incorporated by reference; 401
KAR 50:020. Air quality control regions; 401 KAR 50:025. Classification
of counties; 401 KAR 50:040. Air quality models; 401 KAR 50:042. Good
engineering practice stack height; 401 KAR 50:045. Performance tests;
401 KAR 50:047. Test procedures for capture efficiency; 401 KAR 50:050.
Monitoring; 401 KAR 50:055. General compliance requirements; and 401
KAR 50:060. Enforcement.
Chapter 51 Attainment and Maintenance of the National
Ambient Air Quality Standards: 401 KAR 51:001. Definitions for 401 KAR
Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR
51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of
significant deterioration of air quality; 401 KAR 51:052. Review of new
sources in or impacting upon nonattainment areas; 401 KAR 51:150 NOX
requirements for stationary and internal combustion engines; 401 KAR
51:160 NOX requirements for large utility and industrial boilers 401
KAR 51:170 NOX requirements for cement kilns; 401 KAR 51:180
NOX credits for early reduction and emergency; 401 KAR
51:190 Banking and trading NOX allowances; 401 KAR 51:195 NOX opt-in
provisions; 401 KAR 51:220 CAIR NOX Ozone Season Trading Program.
Chapter 52 Permits, Registrations, and Prohibitory Rules:
401 KAR 52:001. Definitions for 401 KAR Chapter 52; 401 KAR 52:020.
Title V permits; \8\ 401 KAR 52:030. Federally-enforceable permits for
nonmajor sources; 401 KAR 52:090. Prohibitory rule for hot mix asphalt
plants.
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\8\ This rule is not approved into Kentucky's federally-approved
SIP.
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Chapter 53 Ambient Air Quality: 401 KAR 53:005. General
provisions; 401 KAR 53:010 Ambient air quality standards.
Chapter 59 New Source Standards: 401 KAR 59:001
Definition; 401 KAR 59:005 General provisions; 401 KAR 59:010 New
process operations; 401 KAR 59:015 New indirect heat exchangers; 401KAR
59:020 New Incinerators; 401 KAR 59:046 Selected new petroleum refining
processes and equipment; 401 KAR 59:050 New storage vessels for
petroleum liquids; 401 KAR 59:095 New oil-effluent water separators;
401 KAR 59:101 New bulk gasoline plants; 401 KAR 59:174 Stage II
controls at gasoline dispensing facilities; 401 KAR 59:175 New service
stations; 401 KAR 59:185 New solvent metal cleaning equipment; 401 KAR
59:190 New insulation of magnet wire operations; 401 KAR 59:210 New
fabric, vinyl and paper surface coating operations; 401 KAR 59:212 New
graphic arts facilities using rotogravure and flexography; 401 KAR
59:214 New factory surface coating operations of flat wood paneling;
401 KAR 59:225 New miscellaneous metal parts and products surface
coating operations; 401 KAR 59:230 New synthesized pharmaceutical
product manufacturing operations; 401 KAR 59:240 New perchloroethylene
dry cleaning systems; 401 KAR 59:315 Specific new sources; 401 KAR
59:760 Commercial Motor Vehicle and Mobile Equipment Refinishing
Operations.
Chapter 61 Existing Source Standards: 401 KAR 61:001
Definitions and abbreviations of terms used in 401 KAR Chapter 61; 401
KAR 61:005 General provisions; 401 KAR 61:010 Existing incinerators;
401 KAR 61:045 Existing oil-effluent water separators; 401 KAR 61:050
Existing storage vessels for petroleum liquids; 401 KAR 61:055 Existing
loading facilities at bulk gasoline terminals; 401 KAR 61:056 Existing
bulk gasoline plants; 401 KAR 61:060 Existing sources using organic
solvents; 401 KAR 61:065 Existing nitric acid plants; 401 KAR 61:085
Existing service stations; 401 KAR 61:090 Existing automobile and
light-duty surface coating operations; 401 KAR 61:095 Existing solvent
metal cleaning equipment; 401 KAR 61:100 Existing
[[Page 14445]]
insulation of magnet wire operations; 401 KAR 61:105 Existing metal
furniture surface coating operations; 401 KAR 61:110 Existing large
appliance surface coating operations.; 401 KAR 61:120 Existing fabric,
vinyl and paper surface coating operations; 401 KAR 61:122 Existing
graphic arts facilities using rotogravure and flexography; 401 KAR
61:124 Existing factory surface coating operations of flat wood
paneling.; 401 KAR 61:125 Existing can surface coating operations; 401
KAR 61:130 Existing coil surface coating operations; 401 KAR 61:132
Existing miscellaneous metal parts and products surface coating
operations; 401 KAR 61:135 Selected existing petroleum refining
processes and equipment; 401 KAR 61:137 Leaks from existing petroleum
refinery equipment; 401 KAR 61:150 Existing synthesized pharmaceutical
product manufacturing operations; 401 KAR 61:155 Existing pneumatic
rubber tire manufacturing plants; 401 KAR 61:160 Existing
perchloroethylene dry cleaning systems; 401 KAR 61:175 Leaks from
existing synthetic organic chemical and polymer manufacturing
equipment.
Chapter 63 General Standard of Performance: 401 KAR 63:001
Definitions and abbreviations of terms used in 401 KAR Chapter 63; 401
KAR 63:005 Open burning; 401 KAR 63:010 Fugitive emissions; 401 KAR
63:025 Asphalt paving operations; 401 KAR 63:031 Leaks from gasoline
tank trucks.
Chapter 65 Mobile Source-Related Emissions: 401 KAR 63:001
Definitions and abbreviations of terms used in 401 KAR Chapter 63; 401
KAR 63:005 Open burning.
Collectively these regulations establish enforceable emissions
limitations and other control measures, means or techniques, for
activities that contribute to ozone concentrations in the ambient air
and provide authority to establish such limits and measures as well as
schedules for compliance to meet the applicable requirements of the
CAA. In addition, Kentucky Revised Statute (KRS) Chapter 224 Section
10-100 (KRS 224.10-100), provides the Energy and Environment Cabinet
the authority to administer all rules, regulations, and orders
promulgated under Chapter 224, and to provide for the prevention,
abatement, and control of all water, land, and air pollution.
EPA has made the preliminary determination that the provisions
contained in these regulations, and Kentucky's statute are adequate for
enforceable emission limitations and other control measures, means, or
techniques, as well as schedules and timetables for compliance for the
2015 8-hour ozone NAAQS in the Commonwealth.
2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to:
(i) Monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. These
requirements are met through KRS 224.10-100 (22), which provides the
authority to require the installation, maintenance, and use of
equipment, devices, or tests and methodologies to monitor the nature
and amount of any substance emitted into the ambient air and to provide
the information to the Cabinet.
KDAQ also cites to the following regulations to demonstrate that
the Commonwealth meets the requirements of this element: 401 KAR
50:050. Monitoring; 401 KAR 51:017. Prevention of significant
deterioration of air quality; and 401 KAR 51:052. Review of new sources
in or impacting upon nonattainment areas; 401 KAR 53:005. General
provisions; 401 KAR 53:010. Ambient air quality standards.
Annually, states develop and submit to EPA for approval statewide
ambient monitoring network plans consistent with the requirements of 40
CFR parts 50, 53, and 58. The annual network plan involves an
evaluation of any proposed changes to the monitoring network, includes
the annual ambient monitoring network design plan and a certified
evaluation of the agency's ambient monitors and auxiliary support
equipment.\9\ KDAQ's monitoring network plan was submitted on June 28,
2019, and approved by EPA on October 3, 2019. Kentucky's approved
monitoring network plan can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2019-0217. These SIP-approved rules and
Kentucky's statute, along with Kentucky's Ambient Air Monitoring
Network Plan, provide for the establishment and operation of ambient
air quality monitors, the compilation and analysis of ambient air
quality data, and the submission of these data to EPA upon request.
Therefore, EPA has made the preliminary determination that Kentucky's
SIP and practices are adequate for the ambient air quality monitoring
and data system related to the 2015 8-hour ozone NAAQS.
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\9\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources: This element
consists of three sub-elements: Enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources, and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). EPA's analysis of how these provisions of Kentucky's SIP
address each sub-element are described below.
Enforcement: KDAQ's SIP-approved regulation, 401 KAR 50:060,
Enforcement, provides for enforcement of emission limits and control
measures associated with ozone through permit terms and conditions, and
compliance schedules. This regulation also authorizes the Cabinet to
modify and revoke permits and compliance schedules, and authorizes
administrative penalties and injunctive relief, citing to statutory
civil penalty and injunctive relief provisions of KRS 224.99-010. EPA
has made the preliminary determination that Kentucky's SIP is adequate
for enforcement related to the 2015 8-hour ozone NAAQS.
Preconstruction PSD Permitting for Major Sources: With regard to
section 110(a)(2)(C) related to the programs for preconstruction PSD
permitting for major sources, EPA is not proposing any action in this
rulemaking. EPA will consider these requirements in relation to
Kentucky's 2015 8-hour ozone NAAQS infrastructure submission in a
separate rulemaking.
Regulation of minor sources and modifications: Kentucky's SIP-
approved rules, 401 KAR 51:005, Purpose and general provisions and 401
KAR 52:030, Federally-enforceable permits for non-major sources
collectively govern the preconstruction permitting of modifications and
construction of minor stationary sources, and minor modifications of
major stationary sources.
EPA has made the preliminary determination that Kentucky's SIP is
adequate for program enforcement of control measures, and regulation of
minor sources and modifications related to the 2015 8-hour ozone NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components has two subparts
resulting in four distinct components, commonly referred to as
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``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1'') and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (``prong 3''), or to protect visibility
in another state (``prong 4'').
110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2). EPA will consider these requirements in relation to Kentucky's 2015
8-hour ozone NAAQS infrastructure submission in a separate rulemaking.
110(a)(2)(D)(i)(II)--prong 3: With regard to section
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, EPA is
not proposing any action in this rulemaking. EPA will consider these
requirements in relation to Kentucky's 2015 8-hour ozone NAAQS
infrastructure submission in a separate rulemaking.
110(a)(2)(D)(i)(II)--prong 4: Section 110(a)(2)(D)(i)(II) requires
that the SIP contain adequate provisions to protect visibility in other
States. This requirement is satisfied for any relevant NAAQS when the
state has a fully-approved regional haze SIP. Kentucky's SIP contains a
fully approved Regional Haze Plan (see 84 FR 13800 (April 8, 2019)).
EPA's approval of the Kentucky regional haze SIP therefore ensures that
emissions from Kentucky are not interfering with measures to protect
visibility in other states, satisfying the requirements of prong 4 of
section 110(a)(2)(D)(i)(II) for the 2015 8-hour ozone NAAQS. EPA has
made the preliminary determination Kentucky's SIPs meet the
requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2015 8-
hour ozone NAAQS.
5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Regulation 401 KAR 51:010. Attainment Status Designations designates
the status of all areas of the Commonwealth of Kentucky with regard to
attainment of the NAAQS. Regulation 401 KAR 51:017. Prevention of
significant deterioration of air quality and Regulation 401 KAR 51:052.
Review of new sources in or impacting upon nonattainment areas, Section
1, require Kentucky to provide notice to nearby states that may be
affected by proposed major source modifications. These regulations cite
to Federal notification requirements under 40 CFR Sections 51.166 and
to 401 KAR 52:100. Public, affected state, and the US. EPA review,
Section 6, which requires that public notice for permit actions be
provided to affected states. Additionally, Kentucky does not have any
pending obligation under sections 115 and 126 of the CAA with respect
to the 2015 ozone NAAQS. EPA has made the preliminary determination
that Kentucky's SIP is adequate for ensuring compliance with the
applicable requirements relating to interstate and international
pollution abatement for the 2015 8-hour ozone NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide:
(i) Necessary assurances that the state will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the state comply with the requirements respecting state
boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
Kentucky's SIP submission as meeting the requirements of sub-elements
110(a)(2)(E)(i), (ii), and (iii).
In support of elements 110(a)(2)(E)(i) and (iii), Kentucky's
infrastructure submission demonstrates that it is responsible for
promulgating rules and regulations for the NAAQS, emissions standards,
general policies, a system of permits, fee schedules for the review of
plans, and other planning needs. With respect to having the necessary
funding and authority to implement the Kentucky SIP, Kentucky's State
statute 401 KAR 50:038. Air Emissions Fee, and the following State
statutes support sub-elements (i) and (iii): KRS 224.10-100. Powers and
Duties of the Cabinet and KRS 224.10-020. Departments within the
cabinet--Offices and divisions within the departments--Appointments. As
evidence of the adequacy of KDAQ's resources with respect to sub-
elements (i) and (iii), KDAQ has a performance partnership agreement
with EPA outlining 105 grant commitments and current status of these
commitments for fiscal year 2018. Annually, the Commonwealth updates
this performance partnership agreement based on current SIP
requirements, air quality planning, and applicable requirements related
to the NAAQS. There were no outstanding issues in relation to the SIP
for fiscal year 2018, therefore, KDAQ's grants were finalized and
closed out. With respect to (iii) necessary assurances that, where the
state has relied on a local or regional government, agency, or
instrumentality for the implementation of any plan provision, the state
has responsibility for ensuring adequate implementation of such plan
provisions, Kentucky's State statute KRS 224.2-130, Concurrent
jurisdiction with local district provides the Cabinet with oversight
authority of local programs and concurrent jurisdiction. EPA has made
the preliminary determination that Kentucky has adequate resources for
implementation of the 2015 8-hour ozone NAAQS. Accordingly, EPA is
proposing to approve Kentucky's infrastructure SIP submission with
respect to section 110(a)(2)(E)(i) and (iii).
Section 110(a)(2)(E)(ii) requires that Kentucky comply with section
128 of the CAA. Section 128 requires that (a)(1) the majority of
members of the state board or body which approves permits or
enforcement orders represent the public interest and do not derive any
significant portion of their income from persons subject to permitting
or enforcement orders under the CAA; (a)(2) any potential conflicts of
interest by such board or body, or the head of an executive agency with
similar, powers be adequately disclosed. For purposes of section
128(a)(1), Kentucky has no boards or bodies with authority over air
pollution permits or enforcement actions. Such matters are instead
handled by the Director of the KDAQ. As such, a ``board or body'' is
not responsible for approving permits or enforcement orders in
Kentucky, and the requirements of section 128(a)(1) are not applicable.
For purposes of section 128(a)(2), Kentucky's SIP has been updated. On
October 3, 2012 (77 FR 60307), EPA took final action to approve KRS
Chapters 11A.020, 11A.030, 11A.040 and Chapters 224.10-020 and 224.10-
100 into the SIP to address the conflict of interest requirements of
[[Page 14447]]
section 128. These SIP-approved state statutes establish the powers and
duties of the Cabinet, departments within the Cabinet, and offices and
divisions within such departments (Chapters 224.10-020 and 224.10-100)
and support sub-element (ii) by requiring adequate disclosures of
potential conflicts (KRS 11A.020. Public servant prohibited from
certain conduct--Exception--Disclosure of personal or private interest)
and otherwise ensuring that public officers and servants do not engage
in activities that may present a conflict of interest (KRS 11A.030
Considerations in determination to abstain from action on official
decision--Advisory opinion; and KRS 11A.040 Acts prohibited for public
servant or officer--Exception). With the incorporation of these
statutes into the Kentucky SIP, the Commonwealth has adequately
addressed the requirements of section 128(a)(2). Thus, EPA is proposing
approval of KDAQ's infrastructure SIP submission for the 2015 8-hour
ozone NAAQS with respect to section 110(a)(2)(E)(ii).
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing:
(i) The installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. EPA's rules regarding how
SIPs need to address source monitoring requirements at 40 CFR 51.212
require SIPs to exclude any provision that would prevent the use of
credible evidence of noncompliance.
The Kentucky infrastructure submission demonstrates how the major
source and minor source emission inventory programs collect emission
data throughout the Commonwealth and ensure the quality of such data.
Kentucky meets these requirements through Chapter 50 General
Administrative Procedures, specifically 401 KAR 50:050 Monitoring. 401
KAR 50:050, Section 1, Monitoring Records and Reporting, states that
the Cabinet may require a facility to install, use, and maintain stack
gas and ambient air monitoring equipment and to establish and maintain
records, and make periodic emission reports at intervals prescribed by
the Cabinet. Also, KRS 224.10-100 (23) requires that any person engaged
in any operation regulated pursuant to this chapter file with the
Cabinet reports containing information as to location, size, height,
rate of emission or discharge, and composition of any substance
discharged or emitted into the ambient air or into the waters or onto
the land of the Commonwealth, and such other information the Cabinet
may require. In addition, EPA is unaware of any provision preventing
the use of credible evidence in the Kentucky SIP.
Additionally, Kentucky is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI), pursuant to
Subpart A to 40 CFR part 51,--``Air Emissions Reporting Requirements,''
(AERR). All states are required to submit a comprehensive emission
inventory every three years and report emissions for certain larger
sources annually through EPA's online Emissions Inventory System.
States report emissions data for the six criteria pollutants and the
precursors that form them--nitrogen oxides, sulfur dioxides, ammonia,
lead, carbon monoxide, particulate matter, and volatile organic
compounds. Many states also voluntarily report emissions of hazardous
air pollutants. Kentucky's most recently published triennial compiled
emissions information is available as part of the 2014 NEI. EPA
compiles the emissions data, supplementing it where necessary, and
releases it to the general public through the website https://www.epa.gov/air-emissions-inventories.\10\
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\10\ EPA compiles the emissions data and releases the National
Emissions Inventory (NEI) to the public triennial. According to
EPA's 2017 NEI Plan, the 2017 NEI will be available on April 1,
2020, See https://www.epa.gov/sites/production/files/2019-04/documents/2017nei_plan_addendum_final_apr2019_0.pdf
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EPA has made the preliminary determination that Kentucky's SIP and
practices are adequate for the stationary source monitoring systems
related to the 2015 8-hour ozone NAAQS. Accordingly, EPA is proposing
to approve Kentucky's infrastructure SIP submission with respect to
section 110(a)(2)(F).
8. 110(a)(2)(G) Emergency Powers: This section requires that states
demonstrate authority comparable with section 303 of the CAA and
adequate contingency plans to implement such authority. Section 303
authorizes EPA to take action seeking to immediately restrain pollution
sources if such pollution is presenting an imminent and substantial
endangerment to public health, welfare, or the environment. Kentucky's
infrastructure SIP submission identifies air pollution emergency
episodes and preplanned abatement strategies as outlined in the
following Kentucky regulations in Chapter 55 Emergency Episodes,
specifically: 401 KAR 55:005. Significant harm criteria, 401 KAR
55:010. Episode Criteria, and 401 KAR 55:015. Episode Declaration.401
KAR 55:020, Abatement, 401 KAR 55:005. Significant Harm Criteria,
Section 1, Purpose, defines those levels of pollutant concentration
which must be prevented in order to avoid significant harm to the
health of persons. 401 KAR 55:010. Episodic Criteria defines those
levels of pollutant concentrations which justify the proclamation of an
air pollution alert, air pollution warning, an air pollution emergency.
401 KAR 55:015. Episode Declaration provides for the curtailment or
reduction of processes or operations which emit an air contaminant or
an air contaminant precursor whose criteria has been reached and are
located in the affected areas for which an episode level has been
declared.
In addition, KRS 224.10-100 Powers and duties of cabinet and KRS
224.10-410 Order for discontinuance, abatement, or alleviation of
condition or activity without hearing--Subsequent hearing, establish
the authority for Kentucky's secretary to issue orders to person(s) for
discontinuance, abatement, or alleviation of any condition or activity
without hearing because the condition or activity presents a danger to
the health or welfare of the people of the state, and for the Cabinet
to require adoption of any remedial measures deemed necessary. EPA has
made the preliminary determination that Kentucky's SIP, and state laws
are adequate for emergency powers related to the 2015 8-hour ozone
NAAQS. Accordingly, EPA is proposing to approve Kentucky's
infrastructure SIP submission with respect to section 110(a)(2)(G).
9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary,
requires each SIP to provide for revisions of such plan: (i) As may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. As previously discussed, KDAQ is
responsible for adopting air quality rules and revising SIPs as
[[Page 14448]]
needed to attain or maintain the NAAQS. Kentucky has the ability and
authority to respond to calls for SIP revisions and has provided a
number of SIP revisions over the years for implementation of the NAAQS.
Additionally, 401 KAR 53:010 outlines the ambient air quality
standards necessary for the protection of the public health, the
general welfare, and the property and people in the Commonwealth and
states that within 60 days of promulgation or revision of any NAAQS by
EPA, the Cabinet will initiate a process to promulgate or review this
administrative regulation. 401 KAR 51:010. Attainment Status
Designations provides provisions for the Cabinet to review applicable
data and submit to EPA proposed revisions to the list of attainment-
nonattainment areas. EPA has made the preliminary determination that
Kentucky adequately demonstrates a commitment to provide future SIP
revisions related to the 2015 8-hour ozone NAAQS when necessary.
Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP
submission for the 2015 8-hour ozone NAAQS with respect to section
110(a)(2)(H).
10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve Kentucky's infrastructure SIP submission for the 2015 8-hour
ozone NAAQS with respect to the general requirement in section
110(a)(2)(J) to include a program in the SIP that provides for meeting
the applicable consultation requirements of section 121, and the public
notification requirements of section 127. EPA's rationale for each sub-
element is described below.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to meet the requirements of
section 121 relating to consultation with local governments, designated
organizations and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements pursuant to section 121 relative to
consultation. This requirement is met through the Regional Haze SIP,
which provides for continued consultation with government officials,
including the FLMs. Kentucky also adopted consultation procedures in
coordination with the transportation partners in the Commonwealth, for
the implementation of transportation conformity, which includes the
development of mobile inventories for SIP development. Implementation
of transportation conformity as outlined in the consultation procedures
requires KDAQ to consult with Federal, state and local transportation
and air quality agency officials on the development of motor vehicle
emissions budgets. Also, KDAQ notes in its January 1, 2019, SIP
submission that the following Kentucky regulations provide the
Commonwealth the authority to meet this requirement: 401 KAR 50:055.
General compliance requirements; 401 KAR 50:060. Enforcement; 401 KAR
50:065. Conformity of general federal actions; 401 KAR 50:066.
Conformity of Transportation Plans, Programs, and Projects; 401 KAR
51:017. Prevention of Significant Deterioration of Air Quality; and 401
KAR 51:052. Review of new sources in or impacting upon nonattainment
areas. EPA has made the preliminary determination that Kentucky's SIP
and practices adequately demonstrate consultation with government
officials related to the 2015 8-hour ozone NAAQS when necessary for the
consultation with government official(s) element of section
110(a)(2)(J).
Public notification (127 public notification): With respect to
public notification, section 110(a)(3)(J) of the CAA requires states to
notify the public of NAAQS exceedances and associated health hazards,
and to enhance public awareness of measures that can prevent such
exceedances. These requirements are met through the following Kentucky
regulations: 401 KAR 51:001. Definitions for 401 KAR Chapter 51; 401
KAR 51:005. Purpose and General Provisions; 401 KAR 51:010. Attainment
Status Designations; 401 KAR 51:017. Prevention of significant
deterioration of air quality; 401 KAR 51:052. Review of new sources in
or impacting upon nonattainment areas; and 401 KAR 52:100. Public,
Affected State, and the US EPA Review. Additionally, Kentucky provides
air quality information to the public via its website at: http://eppcapp.ky.gov/daq/. EPA has made the preliminary determination that
Kentucky's SIP and practices adequately demonstrate the Commonwealth's
ability to provide public notification related to the 2015 8-hour ozone
NAAQS when necessary for the public notification element of section
110(a)(2)(J).
PSD: With regard to the PSD element of section 110(a)(2)(J), EPA is
not proposing any action in this rulemaking. EPA will consider these
requirements in relation to Kentucky's 2015 8-hour ozone NAAQS
infrastructure submission in a separate rulemaking.
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process.
KDAQ referenced its regional haze program as germane to the visibility
component of section 110(a)(2)(J). EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under Part C of the Act (which includes sections 169A and 169B).
However, there are no newly applicable visibility protection
obligations after the promulgation of a new or revised NAAQS. Thus, EPA
has determined that states do not need to address the visibility
component of 110(a)(2)(J) in infrastructure SIP submittals. As such,
EPA has made the preliminary determination that Kentucky's
infrastructure SIP submission is approvable for section 110(a)(2)(J)
related to the 2015 8-hour ozone NAAQS and that Kentucky does not need
to rely on its regional haze program to address this element.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to EPA can be made. With regard to section 110(a)(2)(K), air
quality models, EPA is not proposing any action in this rulemaking. EPA
will consider these requirements in relation to Kentucky's 2015 8-hour
ozone NAAQS infrastructure submission in a separate rulemaking.
12. 110(a)(2)(L) Permitting Fees: This section requires the SIP to
direct the owner or operator of each major stationary source to pay to
the permitting authority, as a condition of any permit required under
the CAA, a fee sufficient to cover: (i) The reasonable costs of
reviewing and acting upon any application for such a permit, and (ii)
if the owner or operator receives a permit for such source, the
reasonable costs of implementing and enforcing the terms and conditions
of any such permit (not including any court costs or other costs
associated with any enforcement action), until such fee requirement is
superseded with respect to such sources by the Administrator's approval
of a fee program under title V.
Kentucky regulation, 401 KAR 50:038 Air Emissions Fee,\11\ provides
for the assessment of fees necessary to fund the state permit program.
KDAQ ensures this is sufficient for the reasonable cost of reviewing
and acting upon PSD and NNSR permits. Additionally, Kentucky has a
fully approved title V operating permit program at 401 KAR 52:020 Title
[[Page 14449]]
V permits \12\ that covers the cost of implementation and enforcement
of PSD and NNSR permits after they have been issued. EPA has made the
preliminary determination that Kentucky's SIP and practices adequately
provide for permitting fees related to the 2015 8-hour ozone NAAQS,
when necessary. Accordingly, EPA is proposing to approve Kentucky's
infrastructure SIP submission with respect to section 110(a)(2)(L).
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\11\ This rule is not approved into the federally approved SIP.
\12\ This rule is not approved into the federally approved SIP.
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13. 110(a)(2)(M) Consultation and Participation by Affected Local
Entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. Kentucky regulation, 401
KAR 50:066. Conformity of transportation plans, programs, and projects,
and the interagency consultation process as directed by Kentucky's
approved Conformity SIP and 40 CFR 93.112 provide for consultation with
local groups. More specifically, Kentucky adopted state-wide
consultation procedures for the implementation of transportation
conformity which includes the development of mobile inventories for SIP
development and the requirements that link transportation planning and
air quality planning in nonattainment and maintenance areas. Required
partners covered by Kentucky's consultation procedures include Federal,
state and local transportation and air quality agency officials.
Further, Kentucky's ozone infrastructure SIP submission notes that the
following State regulations and State statutes provide the Commonwealth
the authority to meet the requirements of this element; 401 KAR 52:100.
Public, Affected State, and the U.S. EPA Review; and KRS Chapter 77.
Air Pollution Control. EPA has made the preliminary determination that
Kentucky's SIP and practices adequately demonstrate consultation with
affected local entities related to the 2015 8-hour ozone NAAQS when
necessary.
V. Proposed Action
With the exception of interstate transport provisions of section
110(a)(2)(D)(i)(I) and (II) (prongs 1 and 2), PSD provisions related to
major sources under section 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3)
and 110(a)(2)(J), and air quality models of section 110(a)(2)(K), EPA
is proposing to approve Kentucky's January 9, 2019, infrastructure SIP
submission for the 2015 8-hour ozone NAAQS for the above described
infrastructure SIP requirements. EPA is proposing to approve these
portions of Kentucky's infrastructure SIP submission for the 2015 8-
hour ozone NAAQS because these aspects of the submission are consistent
with section 110 of the CAA.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely proposes to approve state law as meeting federal
requirements and would not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 27, 2020.
Mary S. Walker,
Regional Administrator, Region 4.
[FR Doc. 2020-05013 Filed 3-11-20; 8:45 am]
BILLING CODE 6560-50-P