[Federal Register Volume 79, Number 212 (Monday, November 3, 2014)]
[Rules and Regulations]
[Pages 65143-65148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25950]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0486; FRL-9918-68-Region-4]


Approval and Promulgation of Implementation Plans; Commonwealth 
of Kentucky: New Source Review for Fine Particulate Matter

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a revision to the Kentucky State Implementation Plan 
(SIP), submitted by the Commonwealth of Kentucky, through the Kentucky 
Division for Air Quality (KDAQ) to EPA on January 31, 2013. The SIP 
revision modifies the Commonwealth's New Source Review (NSR), 
Prevention of Significant Deterioration (PSD), and Nonattainment New 
Source Review (NNSR) regulations to adopt into the Kentucky SIP Federal 
NSR permitting requirements for the implementation of the fine 
particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). The approved changes in Kentucky's January 31, 2013, 
SIP submission are necessary to comply with Federal requirements. EPA 
is approving the Commonwealth's January 31, 2013, revision to the 
Kentucky SIP because the Agency has determined that the changes are 
consistent with the Clean Air Act (CAA or Act). Additionally, EPA is 
converting two conditional approvals related to the PSD infrastructure 
requirements for the 1997 and 2006 PM2.5, and 2008 8-hour 
Ozone NAAQS to full approval under the CAA.

DATES: This rule will be effective December 3, 2014.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2013-0486. 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: For information regarding the Kentucky 
SIP, contact Mr. David (Brad) Akers, 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. Telephone number: (404) 562-9089; email 
address: [email protected]. For information regarding NSR, contact 
Ms. Yolanda Adams, Air Permits Section, at the same address above. 
Telephone number: (404) 562-9214; email address: [email protected]. 
For information regarding PM2.5 NAAQS, contact Mr. Joel 
Huey, Regulatory Development Section, at the same address above. 
Telephone number: (404) 562-9104; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    EPA is taking final action to approve the Commonwealth of 
Kentucky's January 31, 2013, SIP revision to adopt Federal requirements 
for NSR permitting. The Commonwealth's SIP revision makes changes to 
the regulations in Kentucky's Air Quality Regulations, 401 Kentucky Air 
Regulations (KAR) 51:001- Definitions for 401-KAR Chapter 51; 401 KAR 
51:017--Prevention of significant deterioration of air quality and 401 
KAR 51:052--Review of new sources in or impacting upon nonattainment 
areas to adopt NSR requirements related to the implementation of the 
PM2.5 NAAQS as promulgated in the rulemakings entitled 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers,'' Final Rule, 73 FR 28321 (May 16, 
2008) (hereafter referred to as the ``NSR PM2.5 Rule'') and 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC),'' 
Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as 
the ``PM2.5 PSD Increments-SILs-SMC Rule''). The 
Commonwealth must make this SIP revision to comply with Federal NSR 
permitting regulations at 40 CFR 51.166 and 51.165. Originally, the 
Commonwealth included SILs and SMC thresholds in the January 31, 2013, 
SIP submission, consistent with the October 20, 2010, PM2.5 
PSD Increments-SILs-SMC Rule. However, EPA cannot act on SILs or SMC 
provisions due to the January 22, 2013, decision by the D.C. Circuit 
Court of Appeals vacating the portions of the PM2.5 PSD 
Increment-SILs-SMC Rule addressing the SMC and SILs (and remanding the 
SILs portion to EPA for further consideration).\1\ See Sierra Club v. 
EPA, 705 F.3d 458 (D.C. Cir. 2013). Accordingly, Kentucky has since 
submitted a letter to EPA dated July 22, 2014, requesting that the SILs 
and SMC provisions from the January 31, 2013, SIP submission be 
withdrawn from EPA consideration; therefore these provisions are no 
longer before EPA for consideration. The letter can be found in Docket 
ID: EPA-R04-OAR-2013-0486.
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    \1\ On January 22, 2013, D.C. Circuit granted a request from EPA 
to vacate and remand to the Agency the portions of the October 20, 
2010 rule addressing the SILs for PM2.5, except for the 
parts codifying the PM2.5 SILs in the NSR rule at 40 CFR 
51.165(b)(2), so that the EPA could voluntarily correct an error in 
the provisions. See Sierra Club v. EPA, 705 F.3d 458 at 463-66 (D.C. 
Cir. 2013). The Court also vacated parts of the PM2.5 PSD 
Increment-SILs-SMC Rule establishing the PM2.5 SMC, 
finding that the Agency had exceeded its statutory authority with 
respect to these provisions. Id at 469. On December 9, 2013, EPA 
issued a final rulemaking to remove the vacated and remanded 
PM2.5 SILs and the vacated PM2.5 SMC 
provisions from 40 CFR 51.166 and 52.21. See 78 FR 73698.
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    Additionally, the Commonwealth's January 31, 2013, SIP submission 
satisfies EPA's multiple conditional approvals of the PSD-related 
requirements for sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 
110(a)(2)(J) of Kentucky's infrastructure SIPs for the 1997 and 2006 
PM2.5, and 2008 8-hour Ozone NAAQS. As a result, EPA is 
acting to convert from conditional approval to full approval KDAQ's 
infrastructure requirements related to its PSD program.
    On July 23, 2014, EPA published a proposed rulemaking to approve 
the aforementioned changes to the Commonwealth's NSR program at 401

[[Page 65144]]

KAR 51:001, 401 KAR 51:017 and 401 KAR 51:052, and to convert multiple 
conditional approvals for the Commonwealth's infrastructure SIP for the 
1997 and 2006 PM2.5, and 2008 8-hour Ozone NAAQS. See 79 FR 
42745. Comments on the proposed rulemaking were due on or before August 
22, 2014. No comments, adverse or otherwise, were received on EPA's 
July 23, 2014, proposed rulemaking. Pursuant to section 110 of the CAA, 
EPA is now taking final action to approve the changes to the 
Commonwealth's NSR program as provided in EPA's July 23, 2014, proposed 
rulemaking. EPA's July 23, 2014, proposed rulemaking contains more 
detailed information regarding the Commonwealth's SIP revision being 
approved today, and the rationale for today's final action. Detailed 
information regarding the PM2.5 NAAQS and NSR Program can 
also be found in EPA's July 23, 2014, proposed rulemaking as well as 
the aforementioned final rulemakings. See 79 FR 42745 (July 23, 2014), 
73 FR 28321 (May 16, 2008) and 75 FR 64864 (October 20, 2010), 
respectively.

A. NSR PM2.5 Implementation Rule

    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to 
implement the PM2.5 NAAQS for the NSR permitting program. 
See 73 FR 28321. The NSR PM2.5 Rule revised the Federal NSR 
program requirements to establish the framework for implementing 
preconstruction permit review for the PM2.5 NAAQS in both 
attainment areas and nonattainment areas (NAAs) that: (1) Required NSR 
permits to address directly emitted PM2.5 and certain 
precursor pollutants; (2) established significant emission rates for 
direct PM2.5 and precursor pollutants (including sulfur 
dioxide (SO2) and nitrogen oxides (NOx)); (3) established 
NNSR PM2.5 emission offsets; and (4) required states to 
account for gases that condense to form particles (condensables) in 
PM2.5 and PM10 applicability determinations and 
emission limits in PSD and NNSR permits; and (5) provided a 
grandfathering provision in the federal program for certain pending 
PM2.5 permit applications. Additionally, the NSR 
PM2.5 Rule authorized states to adopt provisions in their 
NNSR rules that would allow interpollutant offset trading.\2\ The 
Commonwealth's January 31, 2013, SIP revision addresses a portion of 
the PSD and NNSR provisions established in EPA's May 16, 2008 NSR 
PM2.5 Rule.
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    \2\ The Commonwealth's January 31, 2013 SIP submission did not 
adopt the NNSR interpollutant offset trading provisions EPA codified 
at 51.165(a)(11). The preferred trading ratios announced in the rule 
preamble were the subject of a petition to reconsider which was 
granted by the Administrator. As a result of the reconsideration, 
EPA issued a memorandum on June 20, 2011, providing that the ratios 
were no longer supported by the agency as being presumptively 
approvable for adoption in SIP's containing NNSR programs for 
PM2.5. See EPA's June 20, 2011 Memorandum entitled 
``Revised Policy to Address Reconsideration of Interpollutant 
Trading Provisions for Fine Particles (PM2.5)'' at http://www.epa.gov/nsr/guidance.html.
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1. PM2.5 Implementation Rule(s) Litigation
    On January 4, 2013, the United States Court of Appeals for the 
District of Columbia Circuit issued a judgment \3\ that remanded EPA's 
April 25, 2007 \4\ and May 16, 2008 PM2.5 implementation 
rules implementing the 1997 PM2.5 NAAQS. See Natural 
Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The 
court found that because the statutory definition of PM10 
(see section 302(t) of the CAA) included particulate matter with an 
aerodynamic diameter less than or equal to 10 micrometers, it 
necessarily includes PM2.5. EPA had developed the 2007 and 
2008 (or NSR PM2.5 Rule) rules consistent with the general 
NAA requirements of subpart 1 of Part D, title I, of the CAA. Relative 
to subpart 1, subpart 4 of Part D, title I includes additional 
provisions that apply to PM10 NAA and is more specific about 
what states must do to bring areas into attainment. In particular, 
subpart 4 includes section 189(e) of the CAA, which requires the 
control of major stationary sources of PM10 precursors (and 
hence under the court decision, PM2.5 precursors) ``except 
where the Administrator determines that such sources do not contribute 
significantly to PM10 levels which exceed the standard in 
the area.'' The court ordered EPA to repromulgate the implementation 
rules pursuant to subpart 4.
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    \3\ The Natural Resources Defense Council, Sierra Club, American 
Lung Association, and Medical Advocates for Healthy Air challenged 
before the D.C Circuit EPA's April 25, 2007 (72 FR 20586) Rule 
entitled ``Clean Air Fine Particle Implementation Rule,'' that 
established detailed implementation regulations to assist states 
with the development of SIPs to demonstrate attainment for the 1997 
annual and 24-hour PM2.5 NAAQS and the separate May 16, 
2008 NSR PM2.5 Rule (the subject of today's proposed 
rulemaking). Today's final rulemaking only pertains to the impacts 
of the court's decision on the May 16, 2008 NSR PM2.5 
Rule and not the April 25, 2007 implementation rule as the 
Commonwealth's January 31, 2013 SIP revision adopts the NSR 
permitting provisions established in the NSR PM2.5 Rule.
    \4\ ``Clean Air Fine Particle Implementation Rule'' (hereafter 
referred to as the 2007 Rule); Final Rule, 72 FR 20586 (April 25, 
2007).
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    Subpart 4 pertains exclusively to particulate matter NAA, and the 
Court did not address EPA's implementation of the PM2.5 
NAAQS under part C or the PSD program. Thus, EPA does not interpret the 
court's decision as affecting implementation of the PSD requirements 
established in the May 16, 2008 NSR PM2.5 Rule and does not 
anticipate the need to revise any PSD requirements promulgated in the 
NSR PM2.5 Rule in order to comply with the court's decision.
    On June 2, 2014, EPA published a final rule \5\ which, in part, 
sets a December 31, 2014 deadline for states to make any remaining 
required attainment-related and NNSR SIP submissions, pursuant to and 
considering the application of subpart 4. See 79 FR 31566. The Court's 
January 4, 2013 decision can be found in the docket for today's final 
rulemaking using Docket ID: EPA-R04-OAR-2013-0486.
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    \5\ The final rule is entitled ``Identification of Nonattainment 
Classification and Deadlines for Submission of State Implementation 
Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) 
National Ambient Air Quality Standard (NAAQS) and 2006 
PM2.5 NAAQS.'' This final rule also identifies the 
initial classification of current 1997 and 2006 PM2.5 
nonattainment areas as moderate and the EPA guidance and relevant 
rulemakings that are currently available regarding implementation of 
subpart 4 requirements.
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2. ``Condensable PM'' Correction
    In the NSR PM2.5 Rule, EPA revised the definition of 
``regulated NSR pollutant'' for PSD to add a paragraph providing that 
``particulate matter (PM) emissions, PM2.5 emissions and 
PM10 emissions shall include gaseous emissions from a source 
or activity which condense to form particulate matter at ambient 
temperatures'' and that on or after January 1, 2011, ``such condensable 
particulate matter shall be accounted for in applicability 
determinations and in establishing emissions limitations for PM, 
PM2.5 and PM10 in permits.'' See 73 FR 28321 at 
28348. A similar paragraph added to the NNSR rule does not include 
``particulate matter (PM) emissions.'' See 40 CFR 
51.165(a)(1)(xxxvii)(D).
    On October 25, 2012, EPA took final action to amend the definition 
of ``regulated NSR pollutant'' promulgated in the NSR PM2.5 
Rule regarding the PM condensable provision at 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset 
Interpretative Ruling. See 77 FR 65107. The rulemaking removed the 
inadvertent requirement in the NSR PM2.5 Rule that the 
measurement of condensable particulate matter be included as part of 
the measurement and regulation of ``particulate matter emissions.'' The 
term ``particulate matter emissions''

[[Page 65145]]

includes filterable particles that are larger than PM2.5 or 
PM10 and is an indicator measured under various New Source 
Performance Standards (NSPS) (40 CFR part 60).\6\ The Commonwealth's 
January 31, 2013 SIP revision adopts EPA's definition for ``regulated 
NSR pollutant'' requiring states to consider condensables (at 40 CFR 
51.166(b)(49)(vi)), excluding the term ``particulate matter 
emissions.''
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    \6\ In addition to the NSPS for PM, it is noted that states 
regulated ``particulate matter emissions'' for many years in their 
SIPs for PM, and the same indicator has been used as a surrogate for 
determining compliance with certain standards contained in 40 CFR 
part 63, regarding National Emission Standards for Hazardous Air 
Pollutants.
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B. PM2.5 PSD-Increment-SILs-SMC Rule

    The October 20, 2010, final rulemaking established PM2.5 
increments pursuant to section 166(a) of the CAA to prevent significant 
deterioration of air quality in areas meeting the NAAQS. Today's action 
pertains only to the PM2.5 increments (and relevant related 
implementing provisions) promulgated in the October 20, 2010, rule. The 
Commonwealth's January 31, 2013, SIP revision adopts the PSD increment 
provisions promulgated in the PM2.5 PSD Increments-SILs-SMC 
Rule to be consistent with the Federal NSR regulations and to 
appropriately implement the Commonwealth's NSR program for the 
PM2.5 NAAQS.
    As established in part C of title I of the CAA, EPA's PSD program 
protects public health from adverse effects of air pollution by 
ensuring that construction of new or modified sources in attainment or 
unclassifiable areas does not lead to significant deterioration of air 
quality, while simultaneously ensuring that economic growth will occur 
in a manner consistent with preservation of clean air resources. Under 
section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate 
that emissions from the proposed construction and operation of a 
facility ``will not cause, or contribute to, air pollution in excess of 
any maximum allowable increase or allowable concentration for any 
pollutant.'' In other words, when a source applies for a permit to emit 
a regulated pollutant in an area that is designated as attainment or 
unclassifiable for a NAAQS, the state and EPA must determine if 
emissions of the regulated pollutant from the source will cause 
significant deterioration in air quality. Significant deterioration 
occurs when the amount of the new pollution exceeds the applicable PSD 
increment, which is the ``maximum allowable increase'' of an air 
pollutant allowed to occur above the applicable baseline concentration 
\7\ for that pollutant.\8\
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    \7\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the air quality at the time of the first application for a 
PSD permit in the area.
    \8\ For purposes of calculating increment consumption, a 
baseline area for a particular pollutant includes the attainment or 
unclassifiable area in which the source is located as well as any 
other attainment or unclassifiable area in which the source's 
emissions of that pollutant are projected (by air quality modeling) 
to result in an ambient pollutant increase of at least 1 microgram 
per meter cubed ([mu]g/m\3\) (annual average). See 40 CFR 
52.21(b)(15)(i).
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    As described in the PM2.5 PSD Increments-SILs-SMC Rule, 
and pursuant to the authority under section 166(a) of the CAA, EPA 
promulgated numerical increments for PM2.5 as a new 
pollutant \9\ for which NAAQS were established after August 7, 
1977,\10\ and derived 24-hour and annual PM2.5 increments 
for the three area classifications (Class I, II and III). See 75 FR 
64864 at 64869 and the ambient air increment table at 40 CFR 
51.166(c)(1) and 52.21(c). In addition to establishing PSD increments 
for the PM2.5 NAAQS, the PM2.5 PSD Increments-
SILs-SMC Rule amended the definition at 40 CFR 51.166 and 52.21 for 
``major source baseline date'' and ``minor source baseline date'' 
(including trigger dates) to establish the PM2.5 NAAQS 
specific dates associated with the implementation of PM2.5 
PSD increments. See 75 FR 64864. As discussed above, the Commonwealth's 
January 31, 2013, SIP revision adopts the PM2.5 PSD 
increment permitting requirements, including the implementing 
regulations discussed above, promulgated in the PM2.5 PSD 
Increments-SILs-SMC Rule.
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    \9\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM10 (retaining 
PM10 as an indicator of coarse particulate matter),and 
treated PM2.5 as a new pollutant for purposes of 
developing increments even though EPA had already developed air 
quality criteria for PM generally. See 75 FR 64864 (October 20, 
2010).
    \10\ EPA interprets section 166(a) to authorize EPA to 
promulgate pollutant-specific PSD regulations meeting the 
requirements of section 166(c) and 166(d) for any pollutant for 
which EPA promulgates a NAAQS after 1977.
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C. EPA's Conversion of Conditional Approvals for the Commonwealth's 
Infrastructure SIP

    In addition to adopting required NSR permitting regulations for the 
implementation of the PM2.5 NAAQS, the Commonwealth's 
January 31, 2013, SIP revision also satisfies EPA's conditional 
approval of the Commonwealth's 1997 annual and 2006 24-hour 
PM2.5, and 2008 8-hour Ozone 110(a)(2) infrastructure SIPs 
\11\ with respect to the PSD-related requirements \12\ of sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the 
CAA. Kentucky submitted multiple SIP submissions to EPA for approval to 
address the 110(a)(2) infrastructure SIP requirements for the 1997 
annual and 2006 24-hour PM2.5 NAAQS (August 26, 2008 and 
July 17, 2012, respectively), and the 2008 8-hour Ozone NAAQS (July 7, 
2012).
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    \11\ 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. Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIPs meeting the applicable 
requirements of section 110(a)(2) within three years after 
promulgation of a new or revised NAAQS or within such shorter period 
as EPA may prescribe. On July 18, 1997, EPA promulgated the primary 
1997 annual and 24-hour PM2.5 NAAQS as 15 [micro]g/m\3\ 
and 65 [micro]g/m\3\ respectively. See 62 FR 38652. On October 17, 
2006, EPA strengthened the 24-hour PM2.5 NAAQS to 35 
[micro]g/m\3\. See 71 FR 61144. On March 27, 2008, EPA revised the 
NAAQS for ozone based on an 8-hour average concentrations to 0.075 
parts per million (ppm). See 73 FR 16436.
    \12\ There are four separate PSDrelated rulemakings that states 
are required to adopt and have approved into their SIP in order to 
maintain a comprehensive SIP-approved PSD permitting program and 
comply with the PSD and enforcement requirements of 110(a)(2) 
infrastructure requirements for sections 110(a)(2)(C), (D)(i)(II) 
and (J) of the CAA. These include: 1) ``Final Rule To Implement the 
8-Hour Ozone National Ambient Air Quality Standard--Phase 2 Rule; 
Final Rule'' (which codified NOx as an ozone precursor for NSR) (70 
FR 71612, November 29, 2005); 2) ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule; Final 
Rule'' (75 FR 31514, June 3, 2010) (as consistent with the Supreme 
Court's decision in Utility Air Regulatory Group v. Environmental 
Protection Agency, 134 S. Ct. 2427 (June 23, 2014)); 3) the NSR 
PM2.5 Rule and; 4) the PM2.5 PSD Increment-
SILs-SMC Rule (only as it relates to PM2.5 Increments). 
See 77 FR 46352 (August 3, 2012), 78 FR 3867 (January 17, 2013) and 
77 FR 72291 (December. 5, 2012). Kentucky's January 31, 2013 
submission satisfies two of the four required PSD rulemakings 
mentioned above including the 2008 NSR PM2.5 Rule and the 
PM2.5 Increments-SILs-SMC Rule (only as it relates to the 
PSD increments). EPA approved the remaining PSD requirements for the 
Greenhouse Gas Tailoring Rule and the Phase 2 Rule on December 29, 
2010 (75 FR 81868) and on September 15, 2010 (75 FR 55988), 
respectively.
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    On July 3, 2012, Kentucky submitted a letter requesting that EPA 
conditionally approve the Commonwealth's infrastructure SIP submissions 
with respect to PSD-related requirements for sections 110(a)(2)(C) and 
110(a)(2)(J) for the 1997 and 2006 PM2.5 NAAQS.\13\ 
Additionally, the

[[Page 65146]]

Commonwealth submitted another correspondence on December 19, 2012, 
requesting conditional approval for PSD-related requirements of 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) for the 
2008 lead and 2008 8-hour Ozone NAAQS infrastructure submissions.\14\ 
Both letters documented the Commonwealth's commitment to adopt and 
submit the PSD-related provisions needed to comply with sections 
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) all in 
accordance with section 110(k)(4) of the CAA to ensure a comprehensive 
PSD program.
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    \13\ EPA also relied upon Kentucky's July 3, 2012 commitment to 
address the PSD-related requirements as the basis for conditionally 
approving the Commonwealth's 1997 and 2006 PM2.5 NAAQS 
infrastructure SIPs as they relate to section 110(a)(2)(D)(i)(II). 
See 78 FR 18241 (March 26, 2013). EPA had already conditionally 
approved the Commonwealth's infrastructure SIPs for the 1997 and 
2006 PM2.5 NAAQS for the PSD-related requirements related 
to sections 110(a)(2)(C) and (J) on October 3, 2012. See 77 FR 
60307.
    \14\ EPA has not taken action on the Commonwealth's 2008 lead 
infrastructure SIP submission but will consider the action in a 
separate rulemaking.
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    EPA took action to approve in part and conditionally approve in 
part portions of the Commonwealth's infrastructure SIP submissions for 
the 1997 and 2006 PM2.5 NAAQS on October 3, 2012, and March 
26, 2013, and for the 2008 8-hour ozone NAAQS on March 7, 2013. See 77 
FR 60307, 78 FR 18241, and 78 FR 14681, respectively. The 
Commonwealth's January 31, 2013, SIP revision satisfies the conditions 
listed in EPA's previous conditional approvals for the infrastructure 
submissions.

II. This Action

    EPA is taking final action to approve into the Kentucky SIP the 
Commonwealth's January 31, 2013, SIP revision, which adopts the NSR 
permitting regulations to implement the NSR program for the 
PM2.5 NAAQS. Specifically, the Commonwealth adopts the 
federal NSR permitting requirements as promulgated in the NSR 
PM2.5 Rule and PSD Increment-SILs-SMC Rule (40 CFR 51.165 
and 51.166) at regulations 401 KAR 51:001, 51:017, and 51:052 into the 
Kentucky SIP. With respect to the NSR PM2.5 Rule, the 
Commonwealth adopts the following: (1) the requirement for PSD and NNSR 
permits to address directly emitted PM2.5 and precursor 
pollutants (sulfur dioxide (SO2) and nitrogen oxides 
(NOX) (as codified at 40 CFR 51.165(a)(1)(xxxvii)(C) and 
51.166(b)(49)); (2) the significant emission rates for direct 
PM2.5 and precursor pollutants (SO2 and NOx) (as 
codified at 40 CFR 51.165(a)(1)(x)(A) and 51.166(b)(23)(i)); (3) the 
NNSR PM2.5 emission offsets (as codified at 51.165(9)(i)), 
and (4) the PSD and NNSR requirement that condensable PM10 
and PM2.5 emissions be accounted for in PSD applicability 
determinations and in establishing emissions limitations for permitting 
(as codified at 40 CFR 51.165(a)(1)(xxxvii)(D) and 51.166(b)(49)).
    With respect to the PSD Increment-SILs-SMC Rule, the Commonwealth's 
January 31, 2013, SIP revision adopts the PSD increments for 
PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of 
the CAA. Specifically, the SIP revision changes include: 1) the 
PM2.5 increments as promulgated at 40 CFR 51.166(c)(1) and 
(p)(4) (for Class I Variances); and 2) amendments to the terms ``major 
source baseline date'' (at 40 CFR 51.166(b)(14)(i)(c)), ``minor source 
baseline date'' (including establishment of the ``trigger date'') (at 
section 51.166(b)(14)(ii)) and ``baseline area'' (as amended at 
51.166(b)(15)(i)). As discussed above, on July 22, 2014, Kentucky 
submitted a letter to EPA withdrawing the PM2.5 SILs and SMC 
provisions promulgated in the PM2.5 PSD Increments-SILs-SMC 
Rule and later vacated by the DC Circuit Court of Appeals (See Sierra 
Club, 705 F.3d at 458). Therefore, these provisions are no longer 
before EPA for consideration.
    As discussed above in section I, the DC Circuit in Natural 
Resources Defense Council v. EPA issued a decision that remanded the 
EPA's NSR PM2.5 Rule implementing the 1997 PM2.5 
NAAQS. The court found that EPA erred in implementing the 
PM2.5 NAAQS in these rules solely pursuant to the general 
implementation provisions of subpart 1 of part D of title I of the 
Clean Air Act, rather than pursuant to the additional implementation 
provisions specific to particulate matter nonattainment areas in 
subpart 4. On June 2, 2014, the EPA issued a final rulemaking that 
begins to address the remand. See 79 FR 31566. Upon its effective date, 
the final rule classifies all existing PM2.5 nonattainment 
areas as ``Moderate'' nonattainment areas and sets a deadline of 
December 31, 2014, for states to submit any SIP submissions, including 
NNSR SIPs, that may be necessary to satisfy the requirements of subpart 
4, part D, title I of the CAA with respect to PM2.5 
nonattainment areas.\15\
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    \15\ EPA set a deadline of December 31, 2014, for the states to 
submit any additional attainment related SIP elements that may be 
needed to meet the applicable requirements of subpart 4 for areas 
currently designated nonattainment for the 1997 and/or 2006 
PM2.5 NAAQS, and to submit SIPs addressing the NNSR 
requirements in subpart 4. EPA believes that this period provides a 
relatively brief but reasonable amount of time for states to 
ascertain whether and to what extent any additional submissions are 
needed for a particular 1997 or 2006 PM2.5 NAAQS 
nonattainment area, and to develop, adopt and submit any such SIPs.
---------------------------------------------------------------------------

    Kentucky's submission does not include the regulation of volatile 
organic compounds (VOCs) and ammonia as PM2.5 precursors, 
nor does it include a demonstration consistent with section 189(e) 
showing that major sources of those precursor pollutants would not 
contribute significantly to PM2.5 levels exceeding the 
standard in the area. Therefore, EPA cannot conclude at this time that 
this part of Kentucky's NNSR submission of revisions to Chapters 51:001 
and 51:052 satisfies all of the requirements of subpart 4 as they 
pertain to PM2.5 NNSR permitting. Although the revisions to 
Kentucky's NNSR regulations at Chapters 51:001 and 51:052 may not 
contain all of the necessary elements to satisfy the CAA requirements 
when evaluated under the subpart 4 provisions, the revisions themselves 
represent a strengthening of the currently-approved Kentucky NNSR SIP 
which does not address PM2.5 at all. As a result of the June 
2, 2014 (79 FR 31566) final rule, Kentucky has until December 31, 2014, 
to make any additional submission necessary to address the requirements 
of subpart 4, including addressing the PM2.5 precursors of 
VOC and ammonia for NNSR permitting purposes. Therefore, EPA is 
approving the NNSR revisions to Kentucky's NNSR permitting program 
without listing the absence of either the regulation or evaluation of 
VOCs and ammonia as PM2.5 precursors as a deficiency at this 
time.
    Finally, as discussed in section I above and in EPA's proposed 
action (See 79 FR 42745, July 23, 2014), Kentucky's January 31, 2013, 
SIP revision also satisfies the conditions listed in EPA's previous 
conditional approvals for the Commonwealth's 2008 8-hour ozone, and 
1997 annual and 2006 24-hour PM2.5 NAAQS infrastructure SIP 
submissions. Therefore, EPA is taking final action to convert its 
conditional approvals with respect to the PSD-related requirements of 
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) to full 
approvals. Given that the Commonwealth's January 31, 2013, SIP revision 
fulfills the conditional approval requirements for conversion to a full 
approval, the conditional approval language at section 52.919(a)-(c) of 
40 CFR part 52, included in EPA's final conditional approvals published 
on October 3, 2012 (77 FR 60307), March 7, 2013 (78 FR 14681) and March 
26, 2013 (78 FR 18241) is no longer necessary. This action removes the

[[Page 65147]]

conditional approval language at 40 CFR 52.919, with the approval of 
the Commonwealth's January 31, 2013, SIP revision, to reflect that the 
infrastructure SIPs for the Commonwealth's 2008 8-hour ozone, and 1997 
annual and 2006 24-hour PM2.5 NAAQS have been fully 
approved.

III. Final Action

    EPA is taking final action to approve the Commonwealth of 
Kentucky's January 31, 2013, SIP revision adopting Federal regulations 
amended in the May 16, 2008, NSR PM2.5 Rule and the October 
20, 2010, PM2.5 PSD Increment-SILs-SMC rule. EPA is 
approving these revisions into the Kentucky SIP because they are 
consistent with section 110 of the CAA and its implementing 
regulations. Final approval of the Commonwealth's January 31, 2013, SIP 
also satisfies the requirements upon which EPA conditionally approved 
several Kentucky infrastructure requirements related to the 1997 and 
2006 PM2.5 and the 2008 8-hour ozone NAAQS. Accordingly, EPA 
is also taking final action today to convert EPA's previous conditional 
approval of the Commonwealth's infrastructure requirements related to 
PSD requirements for the PM2.5 and ozone NAAQS to a full 
approval.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a 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 January 2, 2015. 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 oxides, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: October 22, 2014.
Heather McTeer Toney,
Regional Administrator, Region 4.
    40 CFR part 52 is amended as follows:

PART 52-APPROVAL AND PROMULGATION OF 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


Sec.  52.919  [Removed and Reserved]

0
2. Section 52.919 is removed and reserved.

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


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA Approved Kentucky Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State
          State citation              Title/subject     effective date   EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                   * * * * * *
401 KAR 51:001...................  Definitions for 401       12/7/2012  11/3/14 [Insert      ...................
                                    KAR Chapter 51.                      Federal Register
                                                                         Citation].
 

[[Page 65148]]

 
                                                   * * * * * *
401 KAR 51:017...................  Prevention of             12/7/2012  11/3/14 [Insert      With the exception
                                    significant                          Federal Register     of the SILs and
                                    deterioration of                     Citation].           SMC provisions for
                                    air quality.                                              PM2.5.
401 KAR 51:052...................  Review of new             12/7/2012  11/3/14 [Insert      With the exception
                                    sources in or                        Federal Register     of the SILs and
                                    impacting upon                       Citation].           SMC provisions for
                                    nonattainment                                             PM2.5.
                                    areas.
 
                                                   * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2014-25950 Filed 10-31-14; 8:45 am]
BILLING CODE 6560-50-P