[Federal Register Volume 77, Number 150 (Friday, August 3, 2012)]
[Proposed Rules]
[Pages 46352-46361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19017]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1014; FRL-9708-7]


Approval and Promulgation of Implementation Plans; Kentucky; 
110(a)(1) and (2) Infrastructure Requirements for the 1997 Annual and 
2006 24-hour Fine Particulate Matter National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve in part, and conditionally approve 
in part, the State Implementation Plan (SIP) revisions, submitted by 
the Commonwealth of Kentucky through the Kentucky Energy and 
Environment Cabinet, Division for Air Quality (DAQ), as demonstrating 
that the Commonwealth meets the requirements of sections 110(a)(1) and 
(2) of the Clean Air Act (CAA or Act) for the 1997 annual and 2006 24-
hour fine particulate matter (PM2.5) national ambient air 
quality standards (NAAQS). Kentucky certified that the Kentucky SIP 
contains provisions that ensure the 1997 annual and 2006 24-hour 
PM2.5 NAAQS are implemented, enforced, and maintained in 
Kentucky (hereafter referred to as ``infrastructure submission''). EPA 
is now taking three related actions on Kentucky DAQ's infrastructure 
submissions for the Commonwealth. First, EPA is proposing to determine 
that Kentucky DAQ's infrastructure submissions, provided to EPA on 
August 26, 2008, and July 17, 2012, satisfy certain required 
infrastructure elements for the 1997

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annual and 2006 24-hour PM2.5 NAAQS. Second, EPA is 
proposing to approve several Kentucky Revised Statutes (KRS) into the 
SIP to address element 110(a)(2)(E)(ii), that relates to state board 
requirements. Third, with respect to sections 110(a)(2)(C) and 
110(a)(2)(J) as they relate to PSD requirements, EPA is proposing to 
conditionally approve the SIP submissions as meeting these 
requirements.

DATES: Written comments must be received on or before September 4, 
2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-1014, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2010-1014,'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2010-1014. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in 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: Sean Lakeman, 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. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how Kentucky addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 38652), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. By statute, SIPs meeting the requirements of sections 
110(a)(1) and (2) are to be submitted by states within three years 
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and 
(2) require states to address basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
to EPA no later than July 2000 for the 1997 annual PM2.5 
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5 
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 annual 
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent 
decree with Earthjustice which required EPA, among other things, to 
complete a Federal Register notice announcing EPA's determinations 
pursuant to section 110(k)(1)(B) as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency received from each state for the 1997 
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled 
``Completeness Findings for Section 110(a) State Implementation Plans 
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS'' 
making a finding that each state had submitted or failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (see 
73 FR 62902). For those states that did receive findings, the findings 
of failure to submit for all or a portion of a state's implementation 
plan established a 24-month deadline for EPA to promulgate a federal 
implementation plan to

[[Page 46354]]

address the outstanding SIP elements unless, prior to that time, the 
affected states submitted, and EPA approved, the required SIPs. The 
findings that all or portions of a state's submission are complete 
established a 12-month deadline for EPA to take action upon the 
complete SIP elements in accordance with section 110(k).
    Kentucky's infrastructure submissions were received by EPA on 
August 26, 2008, for the 1997 annual PM2.5 NAAQS, and on 
July 17, 2012,\1\ for the 2006 24-hour PM2.5 NAAQS. The 
August 26, 2008, submission was determined to be complete on February 
26, 2009. Kentucky was among other states that did not receive findings 
of failure to submit because it had provided a complete submission to 
EPA to address the infrastructure elements for the 1997 
PM2.5 NAAQS by October 3, 2008.
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    \1\ On July 17, 2012, Kentucky withdrew its September 8, 2009, 
110(a)(1)-(2) infrastructure submission addressing the 8-hour ozone, 
PM2.5 and Lead NAAQS. Kentucky replaced its September 8, 
2009, 110(a)(1)-(2) infrastructure submission with a submission 
provided on July 17, 2012.
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    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint related to EPA's failure to take action on the SIP 
revision related to the ``infrastructure'' requirements for the 2006 
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a 
consent decree with WildEarth Guardians and Sierra Club which required 
EPA, among other things, to complete a Federal Register notice of the 
Agency's final action either approving, disapproving, or approving in 
part and disapproving in part the Kentucky 2006 24-hour 
PM2.5 NAAQS Infrastructure SIP revision addressing the 
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except 
for section 110(a)(2)(C) the nonattainment area requirements and 
section 110(a)(2)(D)(i)(II) visibility requirements, by September 30, 
2012. On July 20, 2011, EPA published a final rulemaking disapproving 
the interstate transport requirements for section 110(a)(2)(D)(i) for 
the 2006 24-hour PM2.5 NAAQS for Kentucky. See 76 FR 43136.
    Today's proposal addresses three related actions. First, EPA is 
proposing to determine that, as described in its infrastructure 
submissions, Kentucky's SIP meets the section 110(a)(2) infrastructure 
requirements for both the 1997 annual and 2006 24-hour PM2.5 
NAAQS with the exception of elements 110(a)(2)(C) respecting 
nonattainment area and PSD requirements, 110(a)(2)(D)(i) respecting 
interstate transport, and 110(a)(2)(J) respecting PSD requirements. For 
the infrastructure elements except for 110(a)(2)(C), 110(a)(2)(D)(i) 
and 110(a)(2)(J), as noted above, EPA is proposing to determine that 
Kentucky's already approved SIP meets certain CAA requirements. Second, 
EPA is proposing to approve Kentucky's July 17, 2012, submission 
requesting approval of KRS Chapters 11A.020, 11A.030, 11A.040 224.10-
020 and 224.10-100 into the SIP to address element 110(a)(2)(E)(ii). 
Third, with respect to elements 110(a)(2)(C) and 110(a)(2)(J) as they 
both relate to PSD requirements, EPA is proposing to conditionally 
approve these sub-elements.\2\
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    \2\ As discussed below in Section IV of this proposed rule, 
EPA's proposed action to approve infrastructure elements 
110(a)(2)(C) and 110(a)(2)(J) respecting PSD requirements, is 
contingent upon final approval of Kentucky's PM2.5 NSR 
program.
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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. In the case of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, some states may need to adopt language specific 
to the PM2.5 NAAQS to ensure that they have adequate SIP 
provisions to implement the PM2.5 NAAQS.
    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 SIP infrastructure elements such as modeling, monitoring, and 
emissions inventories that are designed to assure attainment and 
maintenance of the NAAQS. The requirements that are the subject of this 
proposed rulemaking are listed below \3\ and in EPA's October 2, 2007, 
memorandum entitled ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards'' and September 25, 2009, 
memorandum entitled ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 
National Ambient Air Quality Standards.''
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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 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. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) but does provide detail on how Kentucky's SIP 
addresses 110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\4\
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    \4\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\5\
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    \5\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006 
PM2.5 NAAQS. Interstate transport requirements were 
formerly addressed by Kentucky consistent with the Clean Air 
Interstate Rule (CAIR). On December 23, 2008, CAIR was remanded by 
the DC Circuit Court of Appeals, without vacatur, back to EPA. See 
North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008). Prior to this 
remand, EPA took final action to approve Kentucky SIP revision, 
which was submitted to comply with CAIR. See 72 FR 56623 (October 4, 
2007). In so doing, Kentucky CAIR SIP revision addressed the 
interstate transport provisions in section 110(a)(2)(D)(i) for the 
1997 PM2.5 NAAQS. In response to the remand of CAIR, EPA 
has recently finalized a new rule to address the interstate 
transport of nitrogen oxides and sulfur oxides in the eastern United 
States. See 76 FR 48208 (August 8, 2011) (Transport Rule). That rule 
was recently stayed by the DC Circuit Court of Appeals. EPA's action 
on element 110(a)(2)(D)(i) will be addressed in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\6\
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    \6\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' and 
the September 25, 2009, memorandum entitled ``Guidance on SIP 
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine 
Particle (PM2.5) National Ambient Air Quality 
Standards,'' but as mentioned above is not relevant to today's 
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public

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notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\7\ Those Commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction (SSM) at sources, that may be contrary to the 
CAA and EPA's policies addressing such excess emissions; and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (director's 
discretion). EPA notes that there are two other substantive issues for 
which EPA likewise stated in other proposals that it would address 
separately: (i) Existing provisions for minor source NSR programs that 
may be inconsistent with the requirements of the CAA and EPA's 
regulations that pertain to such programs (minor source NSR); and (ii) 
existing provisions for PSD programs that may be inconsistent with 
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(NSR Reform). In light of the comments, EPA believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth. It is important to emphasize that EPA is taking the same 
position with respect to these four substantive issues in this action 
on the infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS 
from Kentucky.
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    \7\ See Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational and to provide general notice of 
the potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a re-approval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
re-approval of any existing provisions that relate to these four 
substantive issues. EPA is reiterating that position in this action on 
the infrastructure SIP for Kentucky.
    Unfortunately, the Commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, NSR permitting program 
submissions required to address the requirements of part D, and a host 
of other specific types of SIP submissions that address other specific 
matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements

[[Page 46356]]

for both authority and substantive provisions.\8\ Some of the elements 
of section 110(a)(2) are relatively straightforward, but others clearly 
require interpretation by EPA through rulemaking, or recommendations 
through guidance, in order to give specific meaning for a particular 
NAAQS.\9\
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    \8\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \9\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's implementation plan contains adequate provisions 
to prevent significant contribution to nonattainment of the NAAQS in 
other states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See ``Rule To 
Reduce Interstate Transport of Fine Particulate Matter and Ozone 
(Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\10\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\11\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's 
implementation plans. Finally, EPA notes that not every element of 
section 110(a)(2) would be relevant, or as relevant, or relevant in the 
same way, for each new or revised NAAQS and the attendant 
infrastructure SIP submission for that NAAQS. For example, the 
monitoring requirements that might be necessary for purposes of section 
110(a)(2)(B) for one NAAQS could be very different than what might be 
necessary for a different pollutant. Thus, the content of an 
infrastructure SIP submission to meet this element from a state might 
be very different for an entirely new NAAQS, versus a minor revision to 
an existing NAAQS.\12\
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    \10\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \11\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See ``Guidance for State Implementation 
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under 
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division OAQPS, to Regional Air Division 
Director, Regions I-X, dated August 15, 2006.
    \12\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\13\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \14\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \15\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \16\ However, for the one exception to that general 
assumption (i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS), EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
state

[[Page 46357]]

would work with its corresponding EPA regional office to refine the 
scope of a state's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the state's implementation plans for the NAAQS in 
question.
---------------------------------------------------------------------------

    \13\ See ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I--X, dated October 2, 2007 (the ``2007 Guidance'').
    \14\ Id., at page 2.
    \15\ Id., at attachment A, page 1.
    \16\ Id., at page 4. In retrospect, the concerns raised by the 
Commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\17\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007 
Guidance nor the 2009 Guidance explicitly referred to the SSM, 
director's discretion, minor source NSR, or NSR Reform issues as among 
specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 
2009 Guidance, however, EPA did not indicate to states that it intended 
to interpret these provisions as requiring a substantive submission to 
address these specific issues in existing SIP provisions in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's proposals for other states 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions. The same holds 
true for this action on the infrastructure SIPs for Kentucky.
---------------------------------------------------------------------------

    \17\ See ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I--X, dated September 25, 
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\18\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\19\ Significantly, EPA's 
determination that an action on the infrastructure SIP is not the 
appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action at a 
later time. For example, although it may not be appropriate to require 
a state to eliminate all existing inappropriate director's discretion 
provisions in the course of acting on the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\20\
---------------------------------------------------------------------------

    \18\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \19\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641 
(June 27, 1997) (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \20\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 2010) (proposed 
disapproval of director's discretion provisions); 76 FR 4540 
(January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how Kentucky addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Kentucky's infrastructure submissions address the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Kentucky's infrastructure submissions provide an overview of the 
provisions of the Kentucky Air Regulations relevant to air quality 
control regulations. Chapter 50--General Administrative Procedures, of 
the Kentucky Air Regulations generally authorizes the Kentucky 
Environmental and Public Protection Cabinet to adopt rules for the 
control of air pollution, including those necessary to obtain EPA 
approval under section 110 of the CAA and details the authority and 
means with which DAQ can require testing and emissions verification. 
Chapter 51--Attainment and Maintenance of the National Ambient Air 
Quality Standards, also includes references to rules adopted by 
Kentucky to control air pollution. Chapter 53--

[[Page 46358]]

Ambient Air Quality Standards, serves to establish the requirements for 
the prevention, abatement and control of air pollution. EPA has made 
the preliminary determination that the provisions contained in these 
regulations and Kentucky's practices are adequate to protect the 
PM2.5 annual and 24-hour NAAQS in Kentucky.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in the future. In the 
meantime, EPA encourages any state having deficient SSM provisions to 
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: Chapter 
50--General Administrative Procedures, and Chapter 53--Ambient Air 
Quality Standards, along with the Commonwealth's Network Description 
and Ambient Air Monitoring Network Plan, provide for an ambient air 
quality monitoring system in the State. Annually, EPA approves the 
ambient air monitoring network plan for the state agencies. On July 1, 
2011, the Commonwealth of Kentucky submitted its plan to EPA. On 
October 20, 2011, EPA approved Kentucky's monitoring network plan. 
Kentucky's approved monitoring network plan can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2010-1014. EPA has 
made the preliminary determination that Kentucky's SIP and practices 
are adequate for the ambient air quality monitoring and data systems 
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: Chapter 51--Attainment and 
Maintenance of the National Ambient Air Quality Standards, describes 
the permit requirements for new major sources or major modifications of 
existing sources in areas classified as attainment or unclassifiable 
under section 107(d)(1)(A)(ii) or (iii) of the CAA. This ensures that 
sources in areas attaining the NAAQS at the time of designations 
prevent any significant deterioration in air quality. Chapter 51 also 
sets the permitting requirements for areas in or around nonattainment 
areas. On July 3, 2012, Kentucky submitted a letter to EPA to provide 
the schedule to address outstanding requirements promulgated in the NSR 
PM2.5 Rule related to the PM2.5 standard for 
their PSD program and committing to providing the necessary SIP 
revision to address these NSR PM2.5 Rule requirements.
    Based on Kentucky's commitment, EPA is proposing to conditionally 
approve Kentucky's 110(a)(2)(C) infrastructure SIP consistent with 
section 110(k)(4) of the Act. EPA intends to move forward with 
finalizing the conditional approval consistent with section 110(k)(4) 
of the Act.
    In this action, EPA is proposing to conditionally approve 
Kentucky's infrastructure SIP for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the Commonwealth's existing minor NSR program itself to the 
extent that it is inconsistent with EPA's regulations governing this 
program. EPA believes that a number of states may have minor NSR 
provisions that are contrary to the existing EPA regulations for this 
program. EPA intends to work with states to reconcile state minor NSR 
programs with EPA's regulatory provisions for the program. The 
statutory requirements of section 110(a)(2)(C) provide for considerable 
flexibility in designing minor NSR programs, and EPA believes it may be 
time to revisit the regulatory requirements for this program to give 
the states an appropriate level of flexibility to design a program that 
meets their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    EPA is proposing to conditionally approve element 110(a)(2)(C) 
based on the commitment of the Commonwealth to submit SIP revisions to 
address the PM2.5 NSR requirements.
    4. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: In Chapter 51:017--Prevention of Significant Deterioration 
of air quality, Kentucky outlines how it will notify neighboring states 
of potential impacts from new or modified sources. Kentucky does not 
have any pending obligation under sections 115 and 126 of the CAA. EPA 
has made the preliminary determination that Kentucky's SIP and 
practices are adequate for insuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    5. 110(a)(2)(E) Adequate resources: 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 as meeting the 
requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
    In support of EPA's proposal to approve elements 110(a)(2)(E)(i) 
and (iii), Kentucky DAQ's infrastructure submissions demonstrate 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. As 
evidence of the adequacy of Kentucky DAQ's resources with respect to 
sub-elements (i) and (iii), EPA submitted a letter to Kentucky on March 
14, 2012, outlining 105 grant commitments and current status of these 
commitments for fiscal year 2011. The letter EPA submitted to Kentucky 
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-1014. Annually, states update these grant commitments 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 2011, therefore, Kentucky's grants 
were finalized and closed out. EPA has made the preliminary 
determination that Kentucky has adequate resources for implementation 
of the 1997 annual

[[Page 46359]]

and 2006 24-hour PM2.5 NAAQS. In addition, the requirements 
of 110(a)(2)(E)(i) and (iii) are met when EPA performs a completeness 
determination for each SIP submittal. This determination ensures that 
each submittal provides evidence that adequate personnel, funding, and 
legal authority under State Law has been used to carry out the state's 
implementation plan and related issues. Kentucky's authority is 
included in all prehearings and final SIP submittal packages for 
approval by EPA. EPA has made the preliminary determination that 
Kentucky has adequate resources for implementation of the 1997 annual 
and 2006 24-hour PM2.5 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the Commonwealth comply with 
section 128 of the CAA. Section 128 requires that: (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; and (2) any potential conflicts of 
interest by such board or body, or the head of an executive agency with 
similar, powers be adequately disclosed. Kentucky's July 17, 2012, 
submission adequately demonstrated that Kentucky's SIP meets the 
applicable section 128 requirements pursuant to section 
110(a)(2)(E)(ii). 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 Division for Air Quality. 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. Regarding 
section 128(a)(2) (also applicable to the infrastructure SIP pursuant 
to section 110(a)(2)(E)(ii)), EPA is, through this notice, proposing to 
approve Kentucky's July 17, 2012, SIP revision requesting incorporation 
of KRS Chapters 11A.020, 11A.030, 11A.040 and Chapters 224.10-020 and 
224.10-100 into the SIP to address sub-element 110(a)(2)(E)(ii). KRS 
Chapters:

11A.020. Public servant prohibited from certain conduct--Exception--
Disclosure of personal or private interest;
11A.030. Considerations in determination to abstain from action on 
official decision--Advisory opinion,
11A.030. Acts prohibited for public servant or officer--exception;
224.10-020. Department within the cabinet--Offices and divisions 
within the departments-Appointments, and
224.10-100. Powers and duties of cabinet,

require adequate disclosure of any potential conflicts of interest and 
meets the requirements of section 128(a)(2) of the Act. EPA has made 
the preliminary determination that, following final approval of these 
chapters in the SIP, Kentucky will have adequate resources for 
implementation of the 1997 annual and 2006 24-hour PM2.5 
NAAQS.
    6. 110(a)(2)(F) Stationary source monitoring system: Chapter 50--
General Administrative Procedures of the Kentucky Air Regulations 
describes how the major source and minor source emission inventory 
programs collect emission data throughout the Commonwealth and ensure 
the quality of such data. Additionally, Kentucky is required to submit 
emissions data to EPA for purposes of the National Emissions Inventory 
(NEI). The NEI is EPA's central repository for air emissions data. EPA 
published the Air Emissions Reporting Rule (AERR) on December 5, 2008, 
which modified the requirements for collecting and reporting air 
emissions data (73 FR 76539). The AERR shortened the time states had to 
report emissions data from 17 to 12 months, giving states one calendar 
year to submit emissions data. All states are required to submit a 
comprehensive emissions 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 dioxide, ammonia, lead, carbon monoxide, particulate matter, and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. Kentucky made its latest update 
to the NEI on March 14, 2012. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. 
EPA has made the preliminary determination that Kentucky's SIP and 
practices are adequate for the stationary source monitoring systems 
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    7. 110(a)(2)(G) Emergency power: Chapter 55--Emergency Episodes 
contains provisions for the identification of air pollution emergency 
episodes. Episode criteria and emissions reduction plans are also 
covered in this regulation. These criteria have previously been 
approved by EPA. On September 25, 2009, EPA released the guidance 
entitled ``Guidance on SIP Elements Required Under Sections 110(a)(1) 
and (2) for the 2006 24-Hour Fine Particulate (PM2.5) 
National Ambient Air Quality Standards (NAAQS).'' This guidance 
clarified that ``to address the section 110(a)(2)(G) element, states 
with air quality control regions identified as either Priority I, IA, 
or Priority II by the `Prevention of Air Pollution Emergency Episodes' 
rule at 40 CFR 51.150, must develop emergency episode contingency 
plans.'' EPA's September 25, 2009, guidance also states that ``until 
the Agency finalized changes to the emergency episode regulation to 
establish for PM2.5 specific levels for classifying areas as 
Priority I, IA, or II for PM2.5, and to establish a 
significant harm level (SHL) * * *,'' it recommends that states with a 
24-Hour PM2.5 concentration above 140 [micro]g/m\3\ (using 
the most recent three years of data) develop an emergency episode plan. 
For states where this level has not been exceeded, the state can 
certify that it has appropriate general emergency powers to address 
PM2.5 related episodes, and that no specific emergency 
episode plans are needed at this time. On September 19, 2008, KYDAQ 
submitted a letter to EPA verifying that it is a Class III Priority 
Area and is exempt from adopting emergency episode plan for 
PM2.5 NAAQS. Kentucky had not previously public noticed its 
certification submissions (including the September 19, 2008, letter) 
with regard to 110(a)(2)(G) for the PM2.5 NAAQS. In May 
2012, Kentucky public noticed its certification, and on July 17, 2012, 
submitted the public-noticed certification as a supplement to its 
original certification for element 110(a)(2)(G) for the 
PM2.5 NAAQS. EPA has made the preliminary determination that 
Kentucky's SIP and practices are adequate for emergency powers related 
to the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: As previously discussed, DAQ 
is responsible for adopting air quality rules and revising SIPs as 
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 PM 
NAAQS. Specific to the 1997 annual and 2006 24-hour PM2.5 
NAAQS, Kentucky's submissions have included:
     December 3, 2008, Louisville, Huntington-Ashland and 
Cincinnati PM2.5 Attainment Demonstrations;
     February 8, 2012, Huntington-Ashland 1997 Annual 
PM2.5 Redesignation Request and Maintenance Plan;

[[Page 46360]]

     March 5, 2012, Louisville 1997 Annual PM2.5 
Redesignation Request and Maintenance Plan; and,

EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate a commitment to provide future SIP 
revisions related to the 1997 annual and 2006 24-hour PM2.5 
NAAQS when necessary.
    9. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: Kentucky Air Regulations Chapter 50--General Administrative 
Procedures of the Kentucky Air Regulations and Chapter 51--Attainment 
and Maintenance of the National Ambient Air Quality Standards are 
responsible for consultation with government officials whose 
jurisdictions might be affected by SIP development activities. More 
specifically, Kentucky adopted state-wide consultation procedures for 
the implementation of transportation conformity which includes the 
consideration of the development of mobile inventories for SIP 
development. Required partners covered by Kentucky's consultation 
procedures include federal, state and local transportation and air 
quality agency officials. EPA approved Kentucky's consultation 
procedures on September 15, 2010 (75 FR 55988). Additionally, DAQ 
submitted a regional haze plan which outlines its consultation 
practices with Federal Land Managers. EPA has made the preliminary 
determination that Kentucky's SIP and practices adequately demonstrate 
consultation with government officials related to the 1997 annual and 
2006 24-hour PM2.5 NAAQS when necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: The 
Commonwealth's emergency episode provisions provide for notification to 
the public when the NAAQS, including the PM NAAQS, are exceeded. 
Additionally, the Commonwealth reports daily air quality information on 
its state Web site at: http://air.ky.gov/Pages/AirQualityIndexMonitoring.aspx to inform the public on the existing air 
quality within the Commonwealth. 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 1997 annual and 2006 24-hour PM2.5 NAAQS when necessary.
    11. 110(a)(2)(J) (PSD)PSD and visibility protection: Kentucky 
demonstrates its authority to regulate new and modified sources of PM 
to assist in the protection of air quality in Kentucky. Chapter 51--
Attainment and Maintenance of the National Ambient Air Quality 
Standards, describes the permit requirements for new major sources or 
major modifications of existing sources in areas classified as 
attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of 
the CAA. This ensures that sources in areas attaining the NAAQS at the 
time of designations prevent any significant deterioration in air 
quality. Chapter 51 also sets the permitting requirements for areas in 
or around nonattainment areas. As with infrastructure element 
110(a)(2)(C), infrastructure element 110(a)(2)(J) Kentucky's SIP does 
not include provisions to meet all the requirements for NSR/PSD related 
to the PM2.5 standard. As noted above on July 3, 2012, 
Kentucky submitted a letter to EPA providing a schedule to address 
outstanding requirements promulgated in the NSR PM2.5 Rule 
related to the PM2.5 standard for their PSD program and 
committing to providing the necessary SIP revision to address its NSR 
PM2.5 Rule SIP deficiencies. As a result, EPA is proposing 
to conditionally approve Kentucky's infrastructure SIP with respect to 
element 110(a)(2)(J) in accordance with section 110(k)(4) of the Act. 
EPA intends to move forward with finalizing the conditional approval 
consistent with section 110(k)(4) of the Act.
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS, however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM2.5 NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate the Commonwealth's ability to 
implement PSD programs and to provide for visibility protection related 
to the 1997 annual and 2006 24-hour PM2.5 NAAQS when 
necessary.
    12. 110(a)(2)(K) Air quality and modeling/data: Kentucky Air 
Regulations Chapter 50--General Administrative Procedures, provides 
Kentucky with the authority to conduct air quality modeling and report 
the results of such modeling to EPA. This regulation demonstrates that 
Kentucky has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 1997 annual and 
2006 24-hour PM2.5 NAAQS. EPA has made the preliminary 
determination that Kentucky's SIP and practices adequately demonstrate 
the Commonwealth's ability to provide for air quality and modeling, 
along with analysis of the associated data, related to the 1997 annual 
and 2006 24-hour PM2.5 NAAQS when necessary.
    13. 110(a)(2)(L) Permitting fees: Kentucky addresses the review of 
construction permits as previously discussed in 110(a)(2)(C) above. 
Permitting fees are collected through the Commonwealth's title V fees 
program, which has been federally approved. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
provide for permitting fees related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local 
entities: DAQ coordinates with local governments affected by the SIP. 
Kentucky's SIP also includes a description of the public participation 
process for SIP development. Kentucky has consulted with local entities 
for the development of transportation conformity and has worked with 
the Federal Land Managers as a requirement of its regional haze rule. 
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. The state and local 
transportation agency officials are most directly impacted by 
transportation conformity requirements and have a requirement to have 
public involvement for their activities including the analysis which 
shows how they meet transportation conformity requirements. EPA 
approved Kentucky's consultation procedures in Chapter 50:066--
Conformity of transportation plans, programs, and projects (Amendment), 
on April 21, 2010 (75 FR 20180). EPA has made the preliminary 
determination that Kentucky's SIP and practices adequately demonstrate 
consultation with affected local entities related to the 1997 annual 
and 2006 24-hour PM2.5 NAAQS when necessary.

V. Proposed Action

    As described above, DAQ has addressed the elements of the CAA 
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, 
and

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September 25, 2009, guidance to ensure that the 1997 annual and 2006 
24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in Kentucky. EPA is proposing to determine that Kentucky's 
infrastructure submissions, provided to EPA on August 26, 2008, and on 
July 17, 2012, addressed the required infrastructure elements for the 
1997 annual and 2006 24-hour PM2.5 NAAQS with the exceptions 
of elements (C) and (J) (as related to the PSD requirements of this 
element).
    With respect to element 110(a)(2)(E)(ii), EPA is today proposing to 
determine that Kentucky's SIP satisfies this infrastructure element 
contingent upon EPA taking final action to approve Kentucky's July 17, 
2012, submission requesting approval of KRS Chapters 11A.020, 11A.030, 
11A.040, 224.10-020 and 224.10-100 into the SIP to address sub-element 
110(a)(2)(E)(ii). Today's action is also proposing approval of KRS 
Chapters 11A.020, 11A.030, 11A.040, 224.10-020 and 224.10-100 into the 
SIP.
    With respect to elements 110(a)(2)(C) and 110(a)(2)(J) relating to 
the PSD requirements, EPA is proposing to conditionally approve these 
requirements based upon the commitment made by Kentucky to submit the 
requisite SIP revision to address the Commonwealth's current NSR 
PM2.5 Rule SIP deficiencies. Consistent with section 
110(k)(4) of the CAA, if the Commonwealth fails to comply with its 
commitment, this proposed condition approval would automatically be 
treated as a disapproval of these elements.

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 approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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 proposed 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 Commonwealth, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 20, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-19017 Filed 8-2-12; 8:45 am]
BILLING CODE 6560-50-P