[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Rules and Regulations]
[Pages 14681-14689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05352]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0700; FRL-9788-6]


Approval and Promulgation of Implementation Plans; Kentucky; 
110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve in part, conditionally 
approve in part, and disapprove in part, the July 17, 2012, State 
Implementation Plan (SIP) submission provided by the Commonwealth of 
Kentucky, through the Division of Air Quality (DAQ) of the Kentucky 
Energy and Environment Cabinet. Kentucky DAQ submitted the July 17, 
2012, SIP submission as a replacement to its original September 8, 
2009, SIP submission. Specifically, this final rulemaking pertains to 
the Clean Air Act (CAA or Act) requirements for the 2008 8-hour ozone 
national ambient air quality standards (NAAQS) infrastructure SIP. The 
CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance, and enforcement of each NAAQS promulgated 
by EPA, which is commonly referred to as an ``infrastructure'' SIP. 
Kentucky DAQ made a SIP submission demonstrating that the Kentucky SIP 
contains provisions that ensure the 2008 8-hour ozone NAAQS are 
implemented, enforced, and maintained in the Commonwealth (hereafter 
referred to as ``infrastructure submission''). EPA is now taking final 
action on three related actions on Kentucky DAQ's infrastructure SIP 
submission. First, EPA is taking action to approve Kentucky DAQ's 
infrastructure submission provided to EPA on July 17, 2012, as meeting 
certain required infrastructure elements for the 2008 8-hour ozone 
NAAQS. Second, with respect to the infrastructure elements related to 
specific prevention of significant deterioration (PSD) requirements, 
EPA is taking final action to approve, in part and conditionally 
approve in part, the infrastructure SIP submission based on a December 
19, 2012, commitment from Kentucky DAQ to submit specific enforceable 
measures for approval into the SIP to address specific PSD program 
deficiencies. Third, EPA is taking final action to disapprove Kentucky 
DAQ's infrastructure SIP submission with respect to certain interstate 
transport requirements for the 2008 8-hour ozone NAAQS because the 
submission does not address the statutory provisions with respect to 
the relevant NAAQS and thus does not satisfy the criteria for approval. 
The CAA requires EPA to act on this portion of the SIP submission even 
though under a recent court decision, Kentucky DAQ was not yet required 
to submit a SIP submission to address these interstate transport 
requirements. Moreover, under that same court decision, this 
disapproval does not trigger an obligation for EPA to promulgate a 
Federal Implementation Plan (FIP) to address these interstate transport 
requirements.

DATES: This rule will be effective April 8, 2013.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0700. All documents in the docket 
are listed on the 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 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 a.m. to 4:30 p.m. excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, 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) 562-9140. Ms. Ward can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Response to Comments
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic structural SIP 
requirements, including emissions inventories, monitoring, and modeling 
to assure attainment and maintenance for that new NAAQS.
    Section 110(a) of the CAA generally requires states to make a SIP 
submission to meet applicable requirements in order 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. These SIP submissions are 
commonly referred to as ``infrastructure'' SIP submissions. Section 
110(a) imposes the obligation upon states to make an infrastructure 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 infrastructure SIP for a new or revised 
NAAQS affect the content of the submission. The contents of such 
infrastructure SIP submissions may also vary depending upon what 
provisions the state's existing SIP already contains. In the case of 
the 2008 8-hour ozone NAAQS, states typically have met the basic 
program elements required in section 110(a)(2) through earlier SIP 
submissions in connection with previous ozone NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly

[[Page 14682]]

established or revised NAAQS. As mentioned above, these requirements 
include basic structural SIP requirements such as modeling, monitoring, 
and emissions inventories that are designed to assure attainment and 
maintenance of the NAAQS. The applicable infrastructure SIP 
requirements that are the subject of this rulemaking are listed 
below.\1\
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    \1\ 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 other provisions of the CAA 
for submission of SIP revisions specifically applicable for 
attainment planning purposes. 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 final rulemaking does not address 
infrastructure elements related to section 110(a)(2)(I) or the 
nonattainment planning requirements of 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.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D)(i): Interstate transport.\3\
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    \3\ Section 110(a)(2)(D)(i) includes four requirements referred 
to as prongs 1 through 4. Prongs 1 and 2 are provided at section 
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II). At this time, pursuant to a recent decision of 
the U.S. Court of Appeals for the DC Circuit, the SIP submission 
from Kentucky DAQ to meet section 110(a)(2)(D)(i)(I) is not a 
required SIP submission. The portions of the SIP submission relating 
to 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), in contrast, are 
required. Although prongs 1 and 2 are not required, EPA is acting 
today to disapprove Kentucky's submittal related to these prongs for 
the reasons described in the proposed rule associated with this 
rulemaking. See 78 FR 3867. Further information regarding EPA's 
disapproval of prongs 1 and 2 is also provided below in section II.
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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.\4\
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    \4\ This requirement as mentioned above is not relevant to 
today's final rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public 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.
    On January 17, 2013, EPA proposed to approve Kentucky's July 17, 
2012, infrastructure SIP submission and proposed to conditionally 
approve in part sections 110(a)(2)(C), prong 3 of (D)(i), and (J), and 
disapprove in part section 110(a)(2)(D)(i) for the 2008 8-hour ozone 
NAAQS. See 78 FR 3867.
    EPA proposed conditional approval in part for sections 
110(a)(2)(C), prong 3 of (D)(i),\5\ and (J) because, while the 
Commonwealth's SIP does not currently contain provisions to address the 
structural PSD requirements of the PSD and Nonattainment New Source 
Review (NNSR) requirements related to the implementation of the NSR 
PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC 
Rule (only as it relates to PM2.5 Increments), Kentucky DAQ 
committed in a letter dated December 19, 2012, to submit, within one 
year, specific enforceable measures to EPA for incorporation into the 
SIP to address these requirements. See 78 FR 3867. This commitment 
letter meets the requirements of section 110(k)(4) of the CAA. Kentucky 
DAQ's December 19, 2012, letter can be accessed at www.regulations.gov 
using Docket ID No. EPA-R04-OAR-2012-0700.
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    \5\ Section 110(a)(2)(D)(i) includes four requirements referred 
to as prongs 1 through 4. Prongs 1 and 2 are provided at section 
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section 
110(a)(2)(D)(i)(II). Today's conditional approval only relates to 
the structural PSD requirements of section 110(a)(2)(D)(i)(II), also 
known as prong 3 as noted above in footnote 3.
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    With respect to section 110(a)(2)(D)(i)(I),\6\ for the 2008 8-hour 
ozone NAAQS, EPA published a proposal to disapprove Kentucky DAQ's July 
17, 2012, SIP revision. EPA proposed disapproval of these elements 
because the infrastructure SIP submission asserted that the 
requirements of 110(a)(2)(D)(i)(I) with respect to the 2008 8-hour 
ozone NAAQS were satisfied by the Commonwealth's approved regulations 
to meet the Clean Air Interstate Rule (CAIR) requirements. CAIR, 
however, was promulgated before the 2008 8-hour ozone NAAQS were 
promulgated, and CAIR did not, in any way, address interstate transport 
requirements related to the 2008 8-hour ozone NAAQS. See 78 FR 3867.
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    \6\ Section 110(a)(2)(D)(i)(I) includes two distinct 
requirements referred to as prongs 1 and 2. Prong 1 requires states 
to prohibit emissions that significantly contribute to nonattainment 
of the NAAQS in another state and prong 2 request states to prohibit 
emissions that interfere with maintenance of the NAAQS in another 
state.
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    Finally, EPA notes that this final action on Kentucky's 
infrastructure SIP submission for the 2008 8-hour ozone NAAQS is 
required not only by section 110(k), but also by order issued by the 
U.S. District Court for the Northern District of California in 
WildEarth Guardians v. Jackson, Case No. 11-CV-5651 YGR. In an October 
17, 2012, order granting partial summary judgment in the case, as 
modified in a December 7, 2012, order granting in part EPA's motion for 
an amended order, that court directed EPA to take final action upon the 
infrastructure SIP at issue in this action by March 4, 2013. With 
respect to Kentucky, the court specifically ordered EPA to act upon the 
infrastructure SIP submission made by the Commonwealth on September 8, 
2009, as revised on July 17, 2012. As explained in more detail in 
response to relevant comments, EPA is addressing the requirements of 
section 110(a)(2)(D)(i)(I) consistent with the opinion of the DC 
Circuit Court's opinion in EPA Homer City Generation v. EPA, 696 F.3d 7 
(DC Cir. 2012).

II. Response to Comments

    EPA received five sets of comments on the January 17, 2013, 
proposed rulemaking to approve in part, conditionally approve in part, 
and disapprove in part, Kentucky DAQ's infrastructure SIP submission 
intended to meet the CAA requirements for the 2008 8-hour ozone NAAQS. 
A summary of the comments and EPA's responses are provided below.
    Comment 1: One commenter contends that EPA cannot approve the 
section 110(a)(2)(A) portion of Kentucky DAQ's infrastructure SIP 
submission because certain counties in the Commonwealth have air 
quality monitors with data that suggest such areas are not attaining 
the 2008 8-hour ozone NAAQS. Specifically, the Commenter cites air 
monitoring reports for Jefferson and Oldham counties indicating 
violations of the NAAQS based on 2009-2011 design values. The Commenter 
further contends that, based on available data for 2010-2012, 10 
Kentucky counties will violate the 2008 8-hour ozone NAAQS based on 
2010-2012 design values. According to the Commenter, if a designated 
attainment area violates the NAAQS, then this means that the state must 
necessarily lack adequate emissions limits in its infrastructure SIP 
submission to attain and maintain that NAAQS.
    Response 1: EPA disagrees with the Commenter's contention that 
Kentucky DAQ's 2008 8-hour ozone infrastructure SIP submission is not 
approvable with respect to section 110(a)(2)(A) because of the monitor 
design values noted by the Commenter. While EPA shares the Commenter's 
concern regarding counties monitoring exceedances of the

[[Page 14683]]

2008 8-hour ozone NAAQS based upon 2009-2011 design values, such 
concerns are outside the scope of what is germane to an evaluation of 
section 110(a)(2)(A) of an infrastructure SIP.\7\
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    \7\ EPA also notes that the Commenter relies upon preliminary 
data to suggest that certain areas are violating the 2008 8-hour 
ozone NAAQS based upon 2010-2012 data. This data has not yet been 
certified, and as such, is not yet finalized. Regardless, for the 
reasons discussed in Response 1, EPA does not believe that such 
data, were it certified and final, would provide an appropriate 
basis upon which to disapprove Kentucky's infrastructure SIP as it 
relates to section 110(a)(2)(A) requirements.
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    Pursuant to section 110(a)(2)(A), an infrastructure SIP submission 
must include enforceable emission limitations and other control 
measures, means, or techniques (including economic incentives such as 
fees, marketable permits, and auctions of emissions rights), as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of the Act. The 
Commenter, however, seems to believe that in the context of an 
infrastructure SIP submission, section 110(a)(2)(A) requires that a 
state must monitor attainment of the NAAQS at all monitors throughout 
the state in order to demonstrate that the SIP contains the requisite 
emissions limitations and other control measures, means or techniques 
prescribed by the Act. EPA does not believe that this is a reasonable 
interpretation of the provision with respect to infrastructure SIP 
submissions. Rather, EPA believes that the proper inquiry at this 
juncture is whether the state has met the basic structural SIP 
requirements appropriate at the point in time EPA is acting upon it. 
The Act provides states and EPA with other tools to address concerns 
that arise with respect to violations of the NAAQS in a designated 
attainment area, such as the authority to redesignate areas pursuant to 
section 107(d)(3), the authority to issue a ``SIP Call'' pursuant to 
section 110(k)(5), or the general authority to approve SIP revisions 
that can address such violations of the NAAQS through other appropriate 
measures. As stated in EPA's proposed approval for this rule, to meet 
section 110(a)(2)(A), Kentucky submitted a list of existing emission 
reduction measures in the SIP that control emissions of volatile 
organic compounds and nitrogen oxides (NOx) in order to address ambient 
ozone levels. EPA believes that this is sufficient for purposes of 
infrastructure SIP submission.
    Comment 2: The Commenter contends that EPA must disapprove 
Kentucky's infrastructure SIP submission as it relates to section 
110(a)(2)(A) because the submittal fails to contain enforceable ozone 
precursor limits and schedules/timetables for compliance to ensure 
attainment and maintenance of the NAAQS. Specifically, the Commenter 
contends that Kentucky has failed to identify how it will address the 
violations for those counties monitoring violations of the NAAQS.
    Response 2: EPA disagrees with the Commenter's contention that 
Kentucky should be required to submit the emissions limitations and 
other control measures associated with a nonattainment plan in order to 
satisfy section 110(a)(2)(A) requirements. This would be beyond the 
scope of what is required per section 110(a)(2)(A) in the context of an 
infrastructure SIP submission. Nonattainment area plans are due on a 
different schedule from the section 110 infrastructure elements, and 
such plans, if required, are reviewed and acted upon through a separate 
process. Here, the most of the counties cited by the Commenter are not 
designated nonattainment,\8\ and as such, the nonattainment plan 
requirements referenced by the Commenter are not currently due. As 
noted above, EPA shares the Commenter's concern regarding areas that 
are monitoring exceedances of the 2008 8-hour ozone NAAQS and will work 
appropriately with state and local agencies to address such 
exceedances. Further, in approving Kentucky's infrastructure SIP, EPA 
is affirming that Kentucky has sufficient authority to take the types 
of actions required by the CAA in order to bring such areas back into 
attainment.
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    \8\ As noted below, a portion of Campbell County, Kentucky is 
designated nonattainment for the 2008 8-hour ozone NAAQS in 
association with the Cincinnati-Hamilton nonattainment area.
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    Comment 3: A number of Commenters disagreed with EPA's position 
that disapproval of the Kentucky's infrastructure SIP, as it relates to 
section 110(a)(2)(D)(i)(I) requirements, would not trigger a mandatory 
duty for EPA to promulgate a FIP to address these requirements. 
Specifically, the Commenters contend that the plain language of the CAA 
requires EPA to issue a FIP within two years of a disapproval action. 
In addition, the Commenters contend that the decision in EME Homer City 
Generation v. EPA, 696 F.3d 7 (DC Cir. 2012) (EME Homer City), was 
incorrectly decided and is inconsistent with previous decisions by the 
DC Circuit Court of Appeals. The Commenters suggest that EPA should not 
voluntarily follow the incorrectly decided EME Homer City opinion, 
particularly in the context of an infrastructure action that only 
impacts sources in Kentucky, a state under the jurisdiction of the 
Sixth Circuit Court of Appeals rather than the DC Circuit Court of 
Appeals.
    Response 3: EPA has historically adopted the interpretation 
suggested by the Commenters that disapproval of section 
110(a)(2)(D)(i)(I) would trigger an obligation for the Agency to 
promulgate a FIP within two years if the state did not correct the SIP 
deficiency within that time. EPA continues to agree that the plain 
language of the statute establishes these obligations, and for those 
reasons, we asked the U.S. Court of Appeals for the DC Circuit to grant 
rehearing en banc of the decision in EME Homer City. That petition, 
however, was denied on January 24, 2012, and the mandate was issued to 
EPA on February 4, 2012. The deadline for any party to file a petition 
for certiorari with the Supreme Court has not passed \9\ and the United 
States has not yet decided whether to pursue further appeals. In the 
meantime, EPA intends to act in accordance with the EME Homer City 
opinion in which the court concluded that states have no obligation to 
make a SIP submission to address section 110(a)(2)(D)(i)(I) for a new 
or revised NAAQS until EPA has first defined a state's obligations 
pursuant to that section. As described in the proposed rulemaking for 
today's action, Kentucky did make such a submittal, and consistent with 
section 110(k) of the CAA, EPA is required to act upon that submittal. 
Because CAIR does not, in any way, address transport with respect to 
the 2008 8-hour ozone NAAQS, it cannot be relied upon to satisfy the 
requirements of 110(a)(2)(D)(i)(I) for that NAAQS. For this reason, the 
Agency proposed to disapprove this portion of the infrastructure SIP 
submission. However, because this portion of the infrastructure SIP 
submission is not currently required for the 2008 8-hour ozone NAAQS 
per the EME Homer City opinion, EPA's disapproval action today does not 
presently trigger a FIP obligation.
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    \9\ Pursuant to Rule 13 of the Supreme Court Rules, a petition 
for certiorari must be filed within 90 days of the date of denial of 
rehearing. The court may extend this deadline for good cause by up 
to 60 days.
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    EPA also disagrees with the Commenters' suggestion that the Agency 
need not follow the DC Circuit's decision in EME Homer City in the 
context of an infrastructure action for Kentucky. The EPA rule reviewed 
by the court in EME Homer City--``Federal Implementation Plans: 
Interstate Transport of Fine Particulate Matter and

[[Page 14684]]

Ozone and Correction of SIP Approvals,'' 76 FR 48207 (August 8, 2011) 
also known as the Cross State Air Pollution Rule (CSAPR)--was 
designated by EPA as a ``nationally applicable'' rule within the 
meaning of section 307(b)(1) of the CAA. See id. at 48352. Accordingly, 
all petitions for review of the CSAPR had to be filed in the U.S. Court 
Appeals for the DC Circuit and could not be filed in any other federal 
court. 42 U.S.C. 7607(b)(1). Accordingly, EPA believes the DC Circuit's 
decision in EME Homer City vacating this rule is also nationally 
applicable. As such, EPA does not intend to take any actions, even if 
they are only reviewable in another federal Circuit Court of Appeals, 
that are inconsistent with the decision of the DC Circuit.
    Comment 4: A number of states commented that Kentucky contributes 
significantly to ozone nonattainment in other states. Specifically, the 
Maryland Department of the Environment commented that it has performed 
modeling to demonstrate that Maryland will continue to violate the 2008 
8-hour ozone NAAQS even if all anthropogenic emissions in Maryland are 
eliminated. It contends that corrective actions in states like Kentucky 
that contribute to Maryland's nonattainment are necessary in order for 
the state to meet the NAAQS. The Delaware Department of Natural 
Resources and Environmental Control commented that modeling from the 
CSAPR demonstrated that Kentucky emissions significantly contribute to 
Delaware's ozone pollution by as much as 4.3 percent of the 2008 8-hour 
ozone NAAQS in 2012 and that Delaware has done its fair share to 
address ozone, and it expects EPA to ensure that upwind contributing 
states fully address their contribution to downwind nonattainment. 
Finally, the Connecticut Department of Energy & Environmental 
Protection commented that CSAPR modeling demonstrates that Kentucky 
emissions significantly contribute to Connecticut's ozone pollution by 
as much as 3.4 percent of the 2008 8-hour ozone NAAQS in 2012, and that 
Connecticut has done its fair share to address ozone emissions in the 
state, and it now expects EPA to ensure that upwind contributing states 
fully address their contribution to downwind nonattainment.
    Response 4: EPA acknowledges the Commenters' concern that 
interstate transport of ozone and ozone precursors from upwind states 
to downwind states may have adverse consequences on the ability of 
downwind areas to attain the NAAQS in a timely fashion. It is for this 
reason that EPA attempted, through CSAPR, to address emissions found to 
significantly contribute to nonattainment of or interfere with 
maintenance of the 1997 8-hour ozone NAAQS. The modeling done for 
CSAPR, however, did not address the 2008 8-hour ozone NAAQS and EPA did 
not draw any conclusions with respect to the 2008 8-hour ozone NAAQS 
which did not exist when CAIR was promulgated. Moreover, the DC 
Circuit, in its decision vacating the CSAPR, held that states are not 
required to submit SIPs addressing the requirements of section 
110(a)(2)(D)(i)(I) until EPA has quantified their obligation under that 
provision. See EME Homer City, 696 F.3d at 37. The EME Homer City 
opinion was issued in August of 2012, and on January 24, 2013, the 
court denied all petitions for rehearing. As noted in the responses 
above, the deadline for asking the Supreme Court to review the DC 
Circuit's decision has not passed and the United States has not yet 
decided whether to seek further appeal. In the meantime, and unless the 
EME Homer City Generation decision is reversed or otherwise modified, 
EPA intends to act in accordance with the DC Circuit's opinion. Under 
this opinion, EPA has no authority to promulgate a FIP for section 
110(a)(2)(D)(i)(I) until such time as the Agency quantifies States' 
obligations under this section.
    Comment 5: One Commenter contended even if EPA chose to follow the 
EME Homer City Generation decision, EPA should acknowledge that the 
disapproval starts a FIP clock and then move expeditiously to provide 
Kentucky with the information the EME Homer City court said EPA must 
provide. The Commenter contended that EPA should be able to quantify 
Kentucky's obligations under section 110(a)(2)(D)(i)(I) within six 
months, thereby providing the Commonwealth with 18 months to submit a 
new SIP to address this requirements.
    Response 5: EPA disagrees. As discussed above in the response to 
comment 3, unless the D.C. Circuit's decision in EME Homer City is 
reversed or otherwise modified, disapproval Kentucky DAQ's 2008 
infrastructure SIP as it relates to section 110(a)(2)(i)(I) does not 
give EPA authority, much less obligate it, to promulgate a FIP for 
Kentucky. EPA intends to move forward expeditiously to address the 
interstate transport requirements of the CAA in accordance with all 
applicable court decisions.
    Comment 6: A number of Commenters contend that EPA's disapproval 
section 110(a)(2)(D)(i)(I) triggers a section 110(k)(5) obligation to 
initiate a ``SIP Call'' to revise Kentucky's inadequate infrastructure 
SIP related to interstate transport requirements.
    Response 6: EPA disagrees. Section 110(k)(5) of the CAA provides a 
mechanism (i.e., a ``SIP Call'') for correcting SIPs that the 
Administrator finds to be substantially inadequate to meet CAA 
requirements. As discussed above, EPA has historically interpreted 
section 110(a)(1) of the CAA as establishing the required submittal 
date for SIPs addressing all of the ``interstate transport'' 
requirements in section 110(a)(2)(D) including the provisions in 
section 110(a)(2)(D)(i)(I) regarding significant contribution to 
nonattainment and interference with maintenance. The D.C. Circuit's 
recent opinion in EME Homer City, however, concluded that a SIP cannot 
be deemed to lack a required submission or deemed deficient for failure 
to meet the 110(a)(2)(D)(i)(I) obligation until EPA first quantifies 
that obligation. As such, and consistent with the EME Homer City 
opinion, EPA does not at this time believe that disapproval of section 
110(a)(2)(D)(i)(I) requirements for Kentucky's 2008 8-hour ozone 
infrastructure SIP constitutes a substantial inadequacy in the Kentucky 
SIP because EPA has yet to quantify the Commonwealth's obligation under 
this requirement. EPA intends to move forward expeditiously to 
implement the interstate transport requirements of the CAA.
    Comment 7: One Commenter contends that EPA should disapprove 
Kentucky's 2008 8-hour ozone infrastructure SIP submission with regard 
to the visibility component of 110(a)(2)(D)(i)(II) until such time that 
Kentucky imposes best available retrofit technology (BART) for nitrogen 
oxides (NOx) and sulfur dioxides for electric generating units. The 
Commenter asserts that the substitution of the CAIR for BART is not 
permanent and enforceable and references the previous litigation 
related to CAIR. The Commenter provides a number of comments in 
relation to EPA's ``better than BART'' approach and reliance on CAIR to 
support an approval action for the visibility components of Kentucky's 
2008 8-hour ozone infrastructure submission.
    Response 7: EPA disagrees. As explained in detail in EPA's proposed 
rulemaking related to today's action, EPA believes that in light of the 
D.C. Circuit court's decision to vacate CSAPR, also known as the 
Transport Rule (see EME Homer City, 696 F.3d 7), and the court's order 
for EPA to ``continue administering CAIR pending the promulgation of a 
valid replacement,'' it is appropriate for EPA

[[Page 14685]]

to rely at this time on CAIR to support approval of Kentucky's 2008 8-
hour ozone infrastructure submission as it relates to visibility. EPA 
has been ordered by the court to develop a new rule, and to continue 
implementing CAIR in the meantime. While EPA had filed a petition for 
rehearing of the court's decision on the Transport Rule, this petition 
was later denied on January 24, 2013. The deadline for any party to 
file a petition for certiorari with the Supreme Court has not passed, 
and the United States has not yet decided whether to pursue further 
appeals. In the meantime, EPA does not intend to act in a manner 
inconsistent with the decision of the D.C. Circuit. Based on the 
current direction from the court to continue administering CAIR, EPA 
believes that it is appropriate to rely on CAIR emission reductions for 
purposes of assessing the adequacy of Kentucky's infrastructure SIP 
with respect to prong 4 of section 110(a)(2)(D)(i)(II) while a valid 
replacement rule is developed and until implementation plans complying 
with any such new rule are submitted by the states and acted upon by 
EPA or until the EME Homer City case is resolved in a way that provides 
different direction regarding CAIR and CSAPR.
    Furthermore, as neither the Commonwealth nor EPA has taken any 
action to remove CAIR from the Kentucky SIP, CAIR remains part of the 
federally-approved SIP and can be considered in determining whether the 
SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i)(II). 
EPA is taking final action to approve the infrastructure SIP submission 
with respect to prong 4 because Kentucky's regional haze SIP, which EPA 
has given a limited approval in combination with its SIP provisions to 
implement CAIR adequately, prevents sources in Kentucky from 
interfering with measures adopted by other states to protect visibility 
during the first planning period. While EPA is not at this time 
proposing to change the March 30, 2012, limited approval and limited 
disapproval of Kentucky's regional haze SIP, EPA expects to propose an 
appropriate action regarding Kentucky's regional haze SIP if necessary 
upon final resolution of the EME Homer City litigation. More detailed 
rationale to support EPA's approval of prong 4 for Kentucky's 2008 8-
hour ozone infrastructure submission can be found in EPA's proposed 
rulemaking for today's final action. See 78 FR 3867.
    Comment 8: One Commenter states that EPA should disapprove the 
visibility prong of Kentucky's 2008 8-hour ozone infrastructure 
submission because the Commenter asserts that Kentucky has failed to 
conduct its 5-year progress review for its regional haze SIP by the 
required date.
    Response 8: EPA does not agree that Kentucky has missed its 
deadline to submit its 5-year progress review SIP related to regional 
haze. Kentucky's initial regional haze SIP was submitted on June 25, 
2008, so the Commonwealth's 5-year regional haze progress review SIP is 
not due until June 25, 2013. Even assuming, however, that the deadline 
for the Commonwealth's submittal of its progress review SIP had passed, 
this alone would not warrant the disapproval of Kentucky's 2008 8-hour 
ozone infrastructure SIP submission as it relates to visibility.
    Comment 9: One Commenter states ``[n]ow that en banc review of 
Homer has been denied, EPA should promptly propose and promulgate a 
full approval of KY's regional haze SIP.'' The Commenter also asserts 
that, ``[t]his prospective action should also apply to the other 
elements of the KY SIP that address reasonable progress and the long 
term strategy for visibility.''
    Response 9: This comment is outside of the scope of today's action. 
As explained in EPA's proposal notice related to today's action, EPA 
has already taken final action on Kentucky's regional haze SIP. See 77 
FR 19098 (March 30, 2012). EPA's proposal notice related to today's 
action did not involve a reconsideration of the Agency's March 30, 
2012, final action on the Commonwealth's regional haze SIP. While EPA's 
proposal notice did note the litigation related to the Transport Rule 
and also noted that based on the EME Homer City court's decision on the 
Transport Rule that it would be appropriate to propose to rescind its 
limited disapproval of Kentucky's regional haze SIP and propose a full 
approval, EPA did not take such action because the Agency was awaiting 
a decision related to the possibility that the court would grant EPA's 
petition for an en banc review. EPA mentioned in that proposal notice 
that an en banc review of the court's decision could have a different 
outcome that could bear on such action on the regional haze SIP. Since 
the time of EPA's proposal for Kentucky's 2008 8-hour ozone 
infrastructure SIP, the court has denied EPA's petition for en banc 
review. As noted above, on January 24, 2013, EPA's petition was denied 
and the mandate was issued to EPA on February 4, 2013. The deadline for 
any party to file a petition for certiorari with the Supreme Court has 
not passed and the United States has not yet decided whether to pursue 
further appeals. In the meantime, EPA does not intend to act in a 
manner inconsistent with the decision of the D.C. Circuit. However, EPA 
does not think it is appropriate in today's action to rescind its 
limited disapproval of Kentucky's regional haze SIP. Notably, as 
explained in EPA's proposal notice related to Kentucky's 2008 8-hour 
ozone infrastructure action, EPA does not believe that rescinding the 
Agency's previous limited disapproval of Kentucky's regional haze SIP 
is necessary to support a full approval of the visibility components of 
110(a)(2)(D)(i)(I) and 110(a)(2)(J) for Kentucky's 2008 8-hour ozone 
infrastructure SIP. Moreover, EPA has not proposed to rescind the 
Agency's previous limited disapproval, which would be an appropriate 
procedural step prior to rescinding that disapproval.
    Comment 10: One Commenter contends that ``EPA must disapprove the 
infrastructure SIP because it does not contain the 2008 ozone NAAQS.'' 
In support of this contention, the Commenter points to a table codified 
at 401 KAR 53:010, as evidence that Kentucky's ozone limits ``remain at 
levels set in 1997.''
    Response 10: EPA does not agree with the Commenter's assertion that 
Kentucky's 2008 8-hour ozone infrastructure SIP should be disapproved 
because ``it does not contain the 2008 8-hour ozone NAAQS.'' In 
response to this comment, EPA has investigated the facts concerning the 
table in question. EPA acknowledges that the table in Appendix A to 401 
KAR 53:010 pointed to by the Commenter currently does not list the 2008 
8-hour ozone NAAQS. However, EPA does not believe that the out-of-date 
table indicates that the Kentucky SIP does not adequately address 
infrastructure requirements for the 2008 8-hour ozone NAAQS.
    The Commonwealth's infrastructure SIP submission explicitly stated 
that it was submitted to address the 2008 8-hour ozone NAAQS. Within 
that submission, the Commonwealth indicated that its existing 
provisions are appropriate for purposes of the 2008 8-hour ozone NAAQS. 
EPA considers this to be accurate, based upon the specific contents of 
the infrastructure SIP submission for various elements of section 
110(a)(2). For example, Kentucky's applicable permitting regulations 
define a ``regulated NSR pollutant'' as ``[a] pollutant for which a 
national ambient air quality standard has been promulgated* * *.'' 401 
KAR 51:001(207). In assessing permits issued by the Commonwealth, EPA 
routinely interprets the ``for which a national

[[Page 14686]]

ambient air quality standard has been promulgated'' language in the 
Kentucky SIP as referring to the current federally-promulgated NAAQS. 
EPA notes that in practice the Commonwealth is also addressing the 2008 
8-hour ozone NAAQS.\10\
---------------------------------------------------------------------------

    \10\ For example, EPA is currently reviewing the Suncoke Energy 
PSD Application (PSD-KY-265), which was submitted to DAQ on December 
7, 2012, and received by EPA for review February 7, 2013. The terms 
of this application reflect the 2008 8-hour ozone standard as the 
applicable NAAQS.
---------------------------------------------------------------------------

    Finally, EPA understands that the Commonwealth has initiated action 
to update the out-of-date table cited by the Commenter to eliminate any 
ambiguity or confusion regarding this point. In consultation with the 
Commonwealth, EPA's understanding is that the Commonwealth is in the 
process of updating the table to reflect the current NAAQS. EPA 
believes that, with correction of the table, there should be no 
misunderstandings concerning the fact that the Commonwealth's SIP is 
designed to address the 2008 8-hour ozone NAAQS in accordance with the 
requirements of section 110(a)(1) and (2). As such, EPA does not agree 
that Kentucky's infrastructure SIP submission must be disapproved as a 
result of the out-of-date table cited by the Commenter.
    Comment 11: One Commenter contends that EPA cannot determine that 
the Kentucky SIP provides the necessary assurances required by section 
110(a)(2)(E)(i) that the Commonwealth will have adequate personnel, 
funding and authority under state law to carry out its implementation 
plan given (in the Commenter's opinion) that Kentucky's infrastructure 
SIP fails to adequately address the significant and important 
requirements of element (D)(i).
    Response 11: EPA does not agree. Section 110(a)(2)(E)(i) requires 
that the SIP provide ``necessary assurances that the State * * * will 
have adequate personnel, funding, and authority under State * * * law 
to carry our such implementation plan * * *.'' As described in the 
proposal for today's action, Kentucky has submitted information to 
demonstrate that DAQ 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. In addition, EPA noted the March 14, 2012, Agency 
letter to DAQ outlining the current status of grant commitments for 
2011, each of which have since been finalized. Finally, the proposed 
rule for today's action described that Kentucky's personnel, funding, 
and legal authority to carry out the Commonwealth's implementation plan 
is included with all prehearings and final SIP submittals to EPA. Based 
upon this information EPA proposed to approve Kentucky's infrastructure 
submission for purposes of the 2008 8-hour ozone NAAQS. The Commenter 
does not refute these facts.
    While the Commenter is correct in asserting that Kentucky's 
infrastructure SIP presently fails to address section 
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS, it is incorrect to 
conclude that such failure must result in a disapproval of section 
110(a)(2)(E)(i). EPA does not view the satisfaction of section 
110(a)(2)(D)(i)(I) requirements as germane to an evaluation of whether 
a state has met its obligations under section 110(a)(2)(E)(i). Rather, 
EPA interprets section 110(a)(2)(E)(i) as requiring that the state have 
adequate authority under statutes, rules, and regulations to carry out 
applicable SIP obligations with respect to the relevant NAAQS. See 40 
CFR Part 51, Subparts L and O.
    As described above, EPA's disapproval of the Kentucky 
infrastructure SIP as it relates to the section 110(a)(2)(D)(i)(I) 
transport requirements is based upon the Commonwealth's reliance upon 
CAIR to satisfy the interstate transport obligations of a NAAQS which 
CAIR did not address. The fact that this portion of the SIP cannot be 
approved, however, does not in any way demonstrate a deficiency in the 
underlying authority of the Kentucky DAQ to promulgate rules and 
regulations to address these requirements. The Commenter provided no 
information to suggest that Kentucky lacks the personnel, authority to 
address the interstate transport requirements.
    Comment 12: One Commenter asserts that EPA must disapprove 
Kentucky's infrastructure SIP related to section 110(a)(2)(J) (127 
public notice requirements) because in the Commenter's opinion Kentucky 
does not provide public notification of 2008 8-hour ozone NAAQS 
violations in areas beyond Oldham and Jefferson counties. Specifically, 
the Commenter indicates that the state agency does not notify the 
public of 2008 8-hour ozone violations in counties that are currently 
designated attainment for the 1-hour and 1997 8-hour standards (i.e., 
all counties but Jefferson and Oldham).
    Response 12: EPA does not agree with the Commenter's assertion that 
EPA must disapprove Kentucky's infrastructure SIP submission as it 
relates to the section 110(a)(2)(J) requirements for public 
notification because the SIP does not provide for public notification 
of 2008 8-hour ozone NAAQS violations.
    First the Commenter fails to note the distinction between exceeding 
the ozone NAAQS and violating the ozone NAAQS. Under the CAA, there is 
a clear distinction between a violation and an exceedance of an ambient 
air quality standard.\11\ Pursuant to the public notification 
requirements of section 110(a)(2)(J), states are not required to notify 
the public of NAAQS violations as suggested by the Commenter. Instead, 
states are required ``to notify the public during any calendar [year] 
on a regular basis of instances or areas in which any national primary 
ambient air quality standard is exceeded or was exceeded during any 
portion of the preceding calendar year * * *'' (emphasis added). See 42 
U.S.C. 7427.
---------------------------------------------------------------------------

    \11\ An exceedance occurs when monitored ozone concentrations 
exceed the NAAQS. Ozone is collected as an hourly average of 
continuous data and, in the context of the 2008 8-hour ozone NAAQS 
is then used to determine the daily 8-hour average value. An ozone 
exceedance occurs when a monitor records an 8-hour averaged ambient 
level of ozone above the standard, in this case, above 0.075 parts 
per million (ppm). A violation of an ozone standard (as opposed to 
an exceedance) is based on 3-year averages of data. Violations of 
the 8-hour standard are determined using the annual 4th-highest 
daily maximum 8-hour ozone value at each monitor. A violation 
requires a 3-year average of the annual 4th-highest daily maximum 8-
hour value that is greater than 0.075 ppm.
---------------------------------------------------------------------------

    Second, the Commenter is mistaken because the Commonwealth does 
notify the public regarding ambient air quality in Kentucky, including 
exceedances of the standard. As described in the proposal for today's 
action, notification to the public regarding exceedances is 
accomplished through Kentucky DAQ's Web site at http://air.ky.gov/Pages/AirQualityIndexMonitoring.aspx, which provides real time 
monitoring data for all of the Commonwealth's ozone monitors and 
provides access to Air Quality Index (AQI) information.\12\ In 
addition, Kentucky's Web site also provides information related to 
health considerations based on the concentration of the pollutants in 
the air and information related to ways the public can help reduce air 
pollution. EPA has determined that that this method of notify the 
public of ambient quality is sufficient to meet Kentucky's 
infrastructure SIP obligations described at section 110(a)(2)(J) 
regarding public notification.
---------------------------------------------------------------------------

    \12\ EPA notes that Kentucky provides this information for 
monitors through the Commonwealth, and that the locations of the 
monitors are included in the Commonwealth's approved network 
monitoring plan. Thus this information is available for appropriate 
locations throughout the state.
---------------------------------------------------------------------------

    Finally, EPA also notes that this comment presupposes that there 
have

[[Page 14687]]

been violations of the 2008 ozone NAAQS based on 2010 to 2012 design 
values which have yet to be certified. Although the Kentucky DAQ 
maintains the above-referenced Web site with real time monitoring data 
for the Commonwealth's ozone monitors, Kentucky is not required to 
certify each year's data until April 1, 2013. As such, until the 2012 
data referenced by the Commenter is certified, it remains preliminary 
and EPA does not view a NAAQS violation as having occurred. 
Consequently, the Commenter's reference to data not-yet-certified is 
premature.\13\
---------------------------------------------------------------------------

    \13\ EPA also wishes to clarify that Commenter incorrectly 
indicates that all counties aside from Jefferson and Oldham are 
designated attainment for the 2008 8-hour ozone NAAQS. There are 
also three partial counties in Northern Kentucky (i.e., Boone, 
Campbell and Kenton) are designated nonattainment for the 2008 8-
hour ozone NAAQS as part of the Cincinnati-Hamilton Nonattainment 
Area. The Campbell County monitor referred to by the Commenter is 
included in the 2008 8-hour ozone nonattainment area and is not in 
area designated attainment as suggested by one Commenter. See 77 FR 
30088.
---------------------------------------------------------------------------

III. This Action

    In this rulemaking, EPA is taking final action to approve Kentucky 
DAQ's infrastructure submission as demonstrating that the Commonwealth 
meets the applicable requirements of sections 110(a)(1) and (2) of the 
CAA for the 2008 8-hour ozone NAAQS, with the exception of section 
110(a)(2)(D)(i)(I) concerning interstate transport, and sections 
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) pertaining 
to structural PSD requirements.
    With respect to section 110(a)(2)(D)(i)(I), which pertains to 
interstate transport, EPA is taking final action to disapprove this 
portion of Kentucky DAQ's infrastructure SIP for the 2008 8-hour ozone 
NAAQS.
    With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J), EPA is finalizing conditional approval for this 
portion of Kentucky DAQ's infrastructure SIP for the 2008 8-hour ozone 
NAAQS. Today's final action to conditionally approve of these portions 
of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) 
specifically related to the structural PSD requirements is based upon a 
December 19, 2012, commitment letter submitted by Kentucky DAQ to EPA. 
The Commonwealth's December 19, 2012, letter can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0700. Through 
this letter, Kentucky DAQ, committed to adopt specific enforceable 
measures to address current deficiencies in its SIP related to the 
structural PSD requirements of the PSD and NNSR requirements related to 
the implementation of the NSR PM2.5 Rule and the 
PM2.5 PSD Increment-SILs-SMC Rule (only as it relates to 
PM2.5 Increments). This commitment letter meets the 
requirements of section 110(k)(4) of the CAA, and as such, EPA is 
relying upon this commitment to conditionally approve sections 
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J). For more 
information, see EPA's proposal for today's rulemaking. See 78 FR 3867.
    Accordingly, for purposes of today's conditional approval sections 
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) as it 
relates to the structural PSD requirements, Kentucky DAQ must submit to 
EPA by March 10, 2014, a SIP revision adopting the specific enforceable 
measures as described in the Commonwealth's commitment letter described 
above. If the Commonwealth fails to actually submit this revision by 
March 10, 2014, today's conditional approval will automatically become 
a disapproval for the 2008 8-hour ozone NAAQS.

IV. Final Action

    EPA is taking final action to approve most elements contained in 
Kentucky DAQ's infrastructure SIP submission made by the Commonwealth 
on September 8, 2009, as revised on July 17, 2012, because it addresses 
the required infrastructure elements for the 2008 8-hour ozone NAAQS 
with exception of sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J) as they relate to structural PSD requirements, and 
section 110(a)(2)(D)(i)(I) as it relates to interstate transport. With 
the exceptions noted above Kentucky DAQ has addressed the elements of 
the CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of 
the CAA to ensure that the 2008 8-hour ozone NAAQS are implemented, 
enforced, and maintained in Kentucky.
    With respect to section 110(a)(2)(D)(i)(I) specifically pertaining 
interstate transport, EPA is finalizing disapproval for this portion of 
Kentucky DAQ's infrastructure SIP for the 2008 8-hour ozone NAAQS.
    With respect to sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J) as they relate to the structural PSD requirements of 
the PSD and NNSR requirements related to the implementation of the NSR 
PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC 
Rule (only as it relates to PM2.5 Increments), EPA is taking 
final action to conditionally approve the Commonwealth's infrastructure 
SIP in part, based on an December 19, 2012, commitment that Kentucky 
DAQ will adopt specific enforceable measures related to the structural 
PSD requirements detailed above into its SIP and submit these revisions 
to EPA by March 10, 2014. If the Commonwealth fails to actually submit 
these revisions by the applicable dates described above, today's 
conditional approval(s) will automatically be disapproved on that date.

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

[[Page 14688]]

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 May 6, 2013. Filing a petition for 
reconsideration by the 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, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: March 1, 2013.
A. Stanley Meiburg
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart S--Kentucky

0
2. Section 52.919 is amended by designating the existing undesignated 
paragraph as paragraph (a) and adding paragraph (b) to read as follows:


Sec.  52.919  Identification of plan-conditional approval.

    (a) * * *
    (b) Conditional Approval--Submittal from the Commonwealth of 
Kentucky, through the Division of Air Quality (DAQ) of the Kentucky 
Energy and Environment Cabinet, dated December 19, 2012, to address the 
Clean Air Act (CAA) sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 
and 110(a)(2)(J) for the 2008 8-hour Ozone National Ambient Air Quality 
Standards. With respect to CAA sections 110(a)(2)(C), prong 3 of 
110(a)(2)(D)(i), and 110(a)(2)(J), the Commonwealth must submit to EPA 
by March 10, 2014, SIP revisions adopting specific enforceable measures 
related the structural PSD requirements of the PSD and NNSR 
requirements related to the implementation of the NSR PM2.5 
Rule and the PM2.5 PSD Increment-SILs-SMC Rule (only as it 
relates to PM2.5 Increments) as described in the 
Commonwealth's commitment letter.

0
3. In Sec.  52.920, the table in paragraph (e) is amended by adding a 
new entry ``110(a)(1) and (2) Infrastructure Requirements for the 2008 
8-Hour Ozone National Ambient Air Quality Standards'' at the end of the 
table to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable      State submittal
   Name of non-regulatory SIP       geographic or     date/effective   EPA approval date       Explanations
           provision             nonattainment area        date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
110(a)(1) and (2)                Commonwealth of          7/17/2012   3/7/2013..........  With the exception of
 Infrastructure Requirements      Kentucky.                           [Insert citation     section
 for the 2008 8-Hour Ozone                                             of publication].    110(a)(2)(D)(i)(I)
 National Ambient Air Quality                                                              concerning interstate
 Standards.                                                                                transport which is
                                                                                           being disapproved
                                                                                           and, the portions of
                                                                                           sections
                                                                                           110(a)(2)(C), prong 3
                                                                                           of 110(a)(2)(D)(i),
                                                                                           and 110(a)(2)(J)
                                                                                           related to structural
                                                                                           PSD requirements,
                                                                                           which are being
                                                                                           conditionally
                                                                                           approved.
----------------------------------------------------------------------------------------------------------------


0
4. Section 52.930 is amended by adding paragraph (l) to read as 
follows:

[[Page 14689]]

Sec.  52.930  Control strategy: Ozone.

* * * * *
    (l) Disapproval. EPA is disapproving in part, the Commonwealth of 
Kentucky's Infrastructure SIP for the 2008 8-hour Ozone National 
Ambient Air Quality Standards addressing section 110(a)(2)(D)(i)(I) 
concerning interstate transport requirements, submitted July 17, 2012.

[FR Doc. 2013-05352 Filed 3-6-13; 8:45 am]
BILLING CODE 6560-50-P