[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 55988-55991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22856]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-1014-201026; FRL-9201-1]


Approval and Promulgation of Implementation Plans; Commonwealth 
of Kentucky; Prevention of Significant Deterioration and Nonattainment 
New Source Review Rules: Nitrogen Oxide as Precursor to Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the 
Commonwealth of Kentucky's State Implementation Plan (SIP), submitted 
to EPA by the Kentucky Energy and Environment Cabinet, through the 
Kentucky Division for Air Quality (KDAQ), on February 5, 2010. The 
revision modifies Kentucky's prevention of significant deterioration 
(PSD) and nonattainment new source review (NNSR) permitting regulations 
in Kentucky's SIP to address permit requirements promulgated in the 
1997 8-Hour Ozone National Ambient Air Quality Standards (NAAQS) 
Implementation Rule--Phase II (hereafter referred to as the ``Ozone 
Implementation NSR Update''). The Ozone Implementation NSR Update 
revised permit requirements relating to the implementation of the 1997 
8-hour ozone NAAQS, specifically, incorporating nitrogen oxides 
(NOX) as a precursor to ozone. EPA's approval of Kentucky's 
provisions to include NOX as an ozone precursor into the 
Kentucky SIP is based on EPA's determination that Kentucky's SIP 
revision related to these provisions complies with Federal 
requirements. EPA is also addressing the general adverse comments 
received on EPA's proposal to approve NOX as an ozone 
precursor for permitting purposes into the Kentucky SIP.
    The February 5, 2010, SIP revision also included provisions to 
exclude facilities that produce ethanol through a natural fermentation 
process from the definition of ``chemical process plants'' in the NSR 
major source permitting program in the Kentucky SIP. EPA also received 
adverse comments for its proposal to approve these provisions. At this 
time, EPA is not taking final action on Kentucky's provisions to 
exclude facilities that produce ethanol through a natural fermentation 
process from the definition of ``chemical process plants'' in the NSR 
major source permitting program. EPA will consider the comments 
received regarding these provisions and take any final action for these 
provisions in a separate rulemaking.

DATES: Effective Date: This rule will be effective October 15, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-1014. All documents in the docket 
are listed on the http://www.regulations.gov Web site. 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 http://www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management 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 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Kentucky 
SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. Ms. Bradley can be reached via telephone 
at (404) 562-9352 and electronic mail at [email protected]. For 
information regarding NSR, contact Ms. Yolanda Adams, Air Permits 
Section, at the same address above. Ms. Adams can be reached via 
telephone at (404) 562-9214 and electronic mail at 
[email protected]. For information regarding 8-hour ozone NAAQS, 
contact Ms. Jane Spann, Regulatory Development Section, at the

[[Page 55989]]

same address above. Ms. Spann can be reached via telephone at (404) 
562-9029 and electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Today's Action
III. Comments and Responses
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    On February 5, 2010, the Commonwealth of Kentucky, through KDAQ, 
submitted a revision to the Kentucky SIP which relates to Kentucky's 
Air Quality Regulations, Chapter 51--401 Kentucky Administrative 
Regulation (KAR) 51:001 ``Definitions for 401 KAR Chapter 51,'' 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.'' The SIP revision addressed various issues.\1\ 
This final action addresses only one component of the February 5, 2010, 
submittal--the Ozone Implementation NSR Update requirements, as 
contained in 40 Code of Federal Regulations (CFR) 51.165 and 51.166, 
and promulgated on November 29, 2005, as part of EPA's Ozone 
Implementation NSR Update.
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    \1\ Kentucky's February 5, 2010, SIP revision also included 
provisions for excluding facilities that produce ethanol through a 
natural fermentation process from the definition of ``chemical 
process plants'' in the NSR major source permitting program. In an 
action published on April 1, 2010 (75 FR 16388), EPA proposed to 
approve the aforementioned revisions into the Kentucky SIP. At this 
time, EPA is not taking action on the ethanol provisions. On a 
separate, unrelated issue, the rule revisions provided in Kentucky's 
February 5, 2010, submittal also requested the removal of certain 
provisions for clean units (CU) and pollution control projects 
(PCP), which were vacated by the United States Court of Appeals for 
the District of Columbia Circuit. EPA has not previously taken 
action to approve that portion of Kentucky's submittal (regarding 
the vacated rules) and EPA is not now taking action on those 
provisions.
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    On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of 
0.08 parts per million--also referred to as the 1997 8-hour ozone 
NAAQS. On April 30, 2004, EPA designated areas as attainment, 
nonattainment and unclassifiable for the 1997 8-hour ozone NAAQS. As 
part of the 2004 designations, EPA also promulgated an implementation 
rule for the 1997 8-hour ozone NAAQS in two phases. Phase I of EPA's 
1997 8-hour ozone implementation rule (Phase 1 Rule), published on 
April 30, 2004, and effective on June 15, 2004, provided the 
implementation requirements for designating areas under subpart 1 and 
subpart 2 of the CAA. See 69 FR 23857.
    On November 29, 2005, EPA promulgated the second phase for 
implementation provisions related to the 1997 8-hour ozone NAAQS--also 
known as the Phase II Rule. See 70 FR 71612. The Phase II Rule 
addressed control and planning requirements as they applied to areas 
designated nonattainment for the 1997 8-hour ozone NAAQS which included 
NSR requirements. Specific to this rulemaking, the Phase II Rule made 
changes to Federal regulations 40 CFR 51.165 and 51.166, which govern 
the NNSR and PSD permitting programs. The revisions to the NSR 
permitting requirements in the Phase II Rule are also known as the 
Ozone Implementation NSR Update.
    Specifically, the Phase II Rule requirements included, among other 
changes, a new provision stating that NOX is an ozone 
precursor. See 70 FR 71612, (page 71679) (November 29, 2005). In the 
Phase II Rule, EPA stated as follows:

    ``The EPA has recognized NOX as an ozone precursor in 
several national rules because of its contribution to ozone 
transport and the ozone nonattainment problem. The EPA's recognition 
of NOX as an ozone precursor is supported by scientific 
studies, which have long recognized the role of NOX in 
ozone formation and transport. Such formation and transport is not 
limited to nonattainment areas. Therefore, we believe NOX 
should be treated consistently as an ozone precursor in both our PSD 
and nonattainment NSR regulations. For these reasons we have 
promulgated final regulations providing that NOX is an 
ozone precursor * * *''

    In the Phase II Rule, EPA established that states must submit SIPs 
incorporating required changes (including the addition of 
NOX as a precursor for ozone) no later than June 15, 2007. 
See 70 FR 71612 (page 71683).
    On February 5, 2010, Kentucky submitted a revision to include 
NOX as a precursor for ozone for PSD and NNSR permitting 
purposes in order to comply with the Phase II Rule.

II. Today's Action

    EPA has determined that Kentucky's February 5, 2010, SIP revision 
revising Kentucky's PSD and NNSR permit programs is consistent with 
changes to the Federal NSR requirements (40 CFR 51.165 and 51.166, and 
the Phase II Rule) relating to the incorporation of NOX as 
an ozone precursor. The revision, which became state-effective on 
February 5, 2010, is included in Kentucky's PSD and NNSR programs and 
meets the requirements of the Phase II Rule by identifying 
NOX as a precursor for ozone.\2\
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    \2\ The Kentucky rules were formatted to conform to Kentucky 
rule drafting standards (KRS Chapter 13A), but in substantive 
content the rules are the same as the Federal rules.
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    EPA received comments on its proposal to approve the Kentucky SIP 
revision to incorporate NOX as a precursor for ozone, on 
April 29, 2010, from the Law Office of Robert Ukeiley on behalf of the 
Sierra Club and Valley Watch, Incorporated. The comments opposed 
approval of the SIP revision. EPA's responses to these comments can be 
found in Section III of this rulemaking.

III. Comments and Responses

    On April 29, 2010, EPA received a letter providing comments on 
EPA's proposal to approve Kentucky's February 5, 2010, SIP revision to 
include NOX as a precursor for ozone for PSD and NNSR 
purposes. Below is a summary of the comments and EPA's response.
    Comments: \3\ The comments acknowledged that ``[t]his revision is 
long overdue;'' however, the comments further stated that, ``EPA should 
not approve Kentucky's revision just because it is ``line-by-line'' 
consistent with the federal rules.''
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    \3\ A full text of the comments is available in the Docket for 
this action. Electronic docket information can be found in the 
``Addresses'' portion of this notice. The comments are summarized in 
this document; however, EPA considered all the comments expressed in 
the letter.
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    The comments expressed concerns regarding Kentucky's implementation 
of modeling requirements for ozone, particularly in reference to 
certain coal-fired utilities in Kentucky (that were specifically 
identified in the letter), and for those reasons, the Commenter appears 
to oppose the SIP revision. The Commenter explains that ``[t]his 
proposed rulemaking is EPA's opportunity to provide Kentucky with much-
needed direction on how to ensure air quality does not further 
degrade.'' One basis for the Commenter's concerns appears to be his 
position on Kentucky's attainment status for the ozone NAAQS as well as 
some permitting activities. The Commenter explains his position on 
Kentucky's alleged noncompliance with ozone requirements particularly 
with regard to issuing permits for major new sources of air pollution. 
The concerns seemed focused on ozone related modeling and monitoring. 
Further, the Commenter explains his concerns regarding ozone 
preconstruction monitoring at certain stationary sources.
    The Commenter concludes by explaining that ``[t]he proposed SIP

[[Page 55990]]

revision is EPA's opportunity to work with the state of Kentucky to 
design a program that will help Kentucky achieve present and future 
attainment with ozone standards.'' The Commenter requests that EPA (1) 
not approve the SIP revision until Kentucky agrees to make serious 
efforts at attaining and assuring continuing attainment with the ozone 
standards; and (2) use its powers under CAA Section 167 to prevent 
construction of three major sources of ozone precursor pollution 
(identified in the letter).
    Response: EPA's Phase II Rule required states to add NOX 
as a precursor for ozone to their SIPs. EPA explained the basis for 
that decision in the Phase II Rule, which is part of the CAA program to 
improve air quality and reduce ground-level ozone. The air quality 
benefits were the primary basis for EPA's final action in the Phase II 
Rule requiring states to incorporate NOX as a precursor for 
ozone in their SIPs. See 68 FR 32802 (proposal); 70 FR 71612, 71674, 
71679 (final Phase II Rule). The Commenter acknowledges that this 
action is ``overdue'' and recognizes that NOX is in fact a 
precursor for ozone. While the comments are adverse in the sense that 
they request that EPA not approve the SIP revision, the comments 
provide no scientific or legal basis for EPA to disapprove Kentucky's 
February 5, 2010, SIP revision. The comments are focused on concerns 
about Kentucky's major source air program, and include no specific 
information explaining why adding NOX as a precursor to 
ozone in Kentucky's PSD and NNSR programs is contrary to the CAA or its 
implementing regulations.
    Notably, the Commenter has raised similar concerns in response to 
other actions (e.g., permit revisions and other SIP revisions), 
including a lawsuit against EPA seeking EPA to use Clean Air Act 
Section 167 at certain coal-fired utilities in Kentucky. In a letter 
dated April 17, 2009 (which was resubmitted on January 20, 2010), the 
Commenter provided adverse comments to EPA regarding a separate (and 
unrelated) proposed approval actions for four Kentucky 110(a)(1) 
maintenance plans, stating

``the Kentucky PSD program only requires that sources conduct 
ambient monitoring and impact analysis when a source is over 100 
tons per year of [volatile organic compounds]. See 401 KAR 51:017 
Sec.  7(5)(a). The Kentucky PSD program illegally leaves out major 
sources of NOX. Id.''

    In that separate action, the Commenter supported disapproval based 
on NOX not being listed as an ozone precursor in the 
Kentucky SIP. Nonetheless, in this action to incorporate NOX 
as a precursor for ozone, the same Commenter is opposing the action. 
Commenter appears to be trying to achieve changes not directly related 
to the SIP revision at issue, but more specifically focused on certain 
major stationary sources identified in the letter. These other actions 
have their own independent regulatory processes wherein Commenter has 
other opportunities to raise concerns and seek changes.
    EPA's action to approve NOX as a precursor for ozone in 
Kentucky supports the improvement of air quality in Kentucky, in part 
because of the associated modeling and monitoring requirements. EPA's 
approval of this SIP revision ensures that Kentucky's PSD and NNSR 
permit programs are consistent with the Federal NSR permit requirements 
(40 CFR 51.165 and 51.166) relating to the incorporation of 
NOX as an ozone precursor set forth in the Phase II Rule.

IV. Final Action

    Pursuant to Section 110 of the CAA, EPA is taking final action to 
approve Kentucky's SIP revision submitted February 5, 2010, which 
incorporates NOX as an ozone precursor for PSD and NNSR 
purposes into the Kentucky SIP. The revision included in Kentucky's PSD 
and NNSR programs is equivalent to the provision in the Ozone 
Implementation NSR Update. EPA is approving these revisions into the 
Kentucky SIP because they are consistent with the CAA and its 
implementing regulations.

V. 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. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     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, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 15, 2010. Filing a petition for 
reconsideration by the

[[Page 55991]]

Administrator of this final rule does not affect the finality of this 
action for the purposes of judicial review nor does it extend the time 
within which a petition for judicial review may be filed, and shall not 
postpone the effectiveness of such rule or action. This action may not 
be challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Volatile organic compounds.

    Dated: September 1, 2010.
Beverly H. Banister,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart S--Kentucky

0
2. Section 52.920(c) Table 1 is amended by revising the entries for 
``401 KAR 51:001,'' ``401 KAR 51:017,'' and ``401 KAR 51:052'' to read 
as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                          Table 1--EPA-Approved Kentucky Approved Kentucky Regulations
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                                                                            EPA approval
        State citation           Title/subject     State effective date         date             Explanation
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               Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
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401 KAR 51:001...............  Definitions for                  2/5/2010  9/15/2010         Except the phrase
                                401 KAR Chapter                            [Insert           ``except ethanol
                                51.                                        citation of       production
                                                                           publication].     facilities
                                                                                             producing ethanol
                                                                                             by natural
                                                                                             fermentation under
                                                                                             the North American
                                                                                             Industry
                                                                                             Classification
                                                                                             System (NAICS)
                                                                                             codes 325193 or
                                                                                             312140,'' in 401
                                                                                             KAR 51:001 Section
                                                                                             1 (118)(1)(b)(i)
                                                                                             and the phrase
                                                                                             ``except ethanol
                                                                                             production
                                                                                             facilities
                                                                                             producing ethanol
                                                                                             by natural
                                                                                             fermentation under
                                                                                             NAICS codes 325193
                                                                                             or 312140,'' in 401
                                                                                             KAR 51:001 Section
                                                                                             1(118) (2)(c)(20).
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                                                  * * * * * * *
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401 KAR 51:017...............  Prevention of                    2/5/2010  9/15/2010         Except the phrase
                                significant                                [Insert           ``except ethanol
                                deterioration                              citation of       production
                                of air quality.                            publication].     facilities
                                                                                             producing ethanol
                                                                                             by natural
                                                                                             fermentation under
                                                                                             the North American
                                                                                             Industry
                                                                                             Classification
                                                                                             System (NAICS)
                                                                                             codes 325193 or
                                                                                             312140;'' in 401
                                                                                             KAR 51:017 Section
                                                                                             7(1)(c)20.
401 KAR 51:052...............  Review of new                    2/5/2010  9/15/2010         Except the phrase
                                sources in or                              [Insert           ``except ethanol
                                impacting upon                             citation of       production
                                nonattainment                              publication].     facilities
                                areas.                                                       producing ethanol
                                                                                             by natural
                                                                                             fermentation under
                                                                                             the North American
                                                                                             Industry
                                                                                             Classification
                                                                                             System (NAICS)
                                                                                             codes 325193 or
                                                                                             312140,'' in 401
                                                                                             KAR 51:052 Section
                                                                                             2 (3)(t).
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[FR Doc. 2010-22856 Filed 9-14-10; 8:45 am]
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