[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Proposed Rules]
[Pages 55338-55340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24203]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2016-0213, EPA-R04-OAR-2014-0767, EPA-R04-OAR-2014-0426; 
FRL-9986-17-Region 4]


Air Plan Approval; KY; Minor Sources Infrastructure Requirement 
for the 2012 PM2.5, 2010 NO2, and 2010 SO2 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of three State Implementation Plan (SIP) submissions, 
submitted by the Commonwealth of Kentucky, Energy and Environment 
Cabinet, Department for Environmental Protection, through the Kentucky 
Division for Air Quality (KDAQ) on April 26, 2013 (two submissions), 
and February 8, 2016. The submissions address requirements for 
implementation of the 2012 Fine Particulate Matter (PM2.5), 
2010 Nitrogen Dioxide (NO2), and 2010 Sulfur Dioxide 
(SO2) national ambient air quality standards (NAAQS). When 
EPA promulgates a new or revised NAAQS, the Clean Air Act (CAA or Act) 
requires the state to make a new SIP submission establishing that the 
existing SIP meets the various applicable requirements, or revising the 
SIP to meet those requirements. This type of SIP submission is commonly 
referred to as an ``infrastructure'' SIP. In this proposed action, EPA 
is proposing to approve the portions of these infrastructure SIP 
submissions from Kentucky that relate to the minor source program 
requirements for the 2012 PM2.5, 2010 NO2, and 
2010 SO2 NAAQS.

DATES: Written comments must be received on or before December 5, 2018.

ADDRESSES: Submit your comments, identified by Docket ID Nos. EPA-R04-
OAR-2016-0213, EPA-R04-OAR-2014-0767, EPA-R04-OAR-2014-0426 at http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 
30303-8960. Ms. Notarianni can be reached via electronic mail at 
[email protected] or the telephone number (404) 562-9031.

SUPPLEMENTARY INFORMATION: 

I. Background

    Under section 110 of the CAA, states are required to have SIPs that 
provide for the implementation, maintenance, and enforcement of the 
NAAQS. States are further required to make a SIP submission meeting the 
applicable requirements of sections 110(a)(1) and (2) within three 
years of EPA promulgating a new or revised NAAQS.\1\ EPA has 
historically referred to these SIP submissions made for the purpose of 
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Sections 110(a)(1) and (2) require 
states to address basic SIP elements such as for monitoring, basic 
program requirements and legal authority that are designed to assure 
attainment and maintenance of the newly established or revised 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 SIPs related to a newly established 
or revised NAAQS. The contents of an infrastructure SIP submission may 
vary depending upon

[[Page 55339]]

the data and analytical tools available to the state, as well as the 
provisions already contained in the state's implementation plan at the 
time in which the state develops and submits the submission for a new 
or revised NAAQS.
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    \1\ See EPA's May 10, 2017, action proposing to approve other 
portions of Kentucky's infrastructure SIP submittal for the 2012 
PM2.5 NAAQS for a discussion of EPA's general approach to 
reviewing infrastructure SIP submittals. 82 FR 21751.
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    This action pertains to one of the requirements of section 
110(a)(2) that is relevant in the context of a state's development, and 
EPA's evaluation of, infrastructure SIP submissions: the minor source 
requirements of section 110(a)(2)(C). Specifically, this action 
pertains to the Kentucky infrastructure SIP submissions for the 2012 
annual primary PM2.5, 2010 primary NO2, and 2010 
primary SO2 NAAQS. All other applicable infrastructure 
requirements for the 2012 PM2.5, 2010 NO2, and 
2010 SO2 NAAQS for Kentucky are being or have been addressed 
in separate rulemakings.
    A brief background regarding the NAAQS relevant to today's proposal 
is provided below. For comprehensive information on these NAAQS, please 
refer to the Federal Register rulemakings cited below.

a. 2012 PM2.5 NAAQS

    On December 14, 2012 (78 FR 3086, January 15, 2013), EPA revised 
the primary annual PM2.5 NAAQS. The standard was 
strengthened from 15.0 micrograms per cubic meter ([mu]g/m\3\) to 12.0 
[mu]g/m\3\. States were required to submit infrastructure SIP 
submissions for the 2012 annual PM2.5 NAAQS to EPA no later 
than December 14, 2015. For the 2012 PM2.5 NAAQS, EPA is 
proposing to approve the minor source element of the infrastructure SIP 
submission submitted by KDAQ on February 8, 2016.\2\
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    \2\ EPA approved portions of Kentucky's February 8, 2016, 
PM2.5 infrastructure submission in a separate action. See 
82 FR 37012 (August 8, 2017). EPA has not yet acted on the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
(II) (prongs 1, 2, and 4) for the 2012 PM2.5 NAAQS.
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b. 2010 NO2 NAAQS

    On January 22, 2010 (75 FR 6474, February 9, 2010), EPA established 
a new 1-hour primary NAAQS for NO2 at a level of 100 parts 
per billion (ppb), based on a 3-year average of the 98th percentile of 
the yearly distribution of 1-hour daily maximum concentrations. States 
were required to submit infrastructure SIP submissions for the 2010 
NO2 NAAQS to EPA no later than January 22, 2013. For the 
2010 NO2 NAAQS, EPA is proposing to approve the minor source 
element of the infrastructure SIP submission submitted by KDAQ on April 
26, 2013.\3\
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    \3\ EPA approved portions of Kentucky's April 26, 2013, 
NO2 infrastructure submission in separate actions. See 81 
FR 83152 (November 21, 2016), and 80 FR 14019 (March 18, 2015). EPA 
has not yet acted on the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) for the 
2010 NO2 NAAQS.
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c. 2010 SO2 NAAQS

    On June 2, 2010 (75 FR 35520, June 22, 2010), EPA revised the 
primary SO2 NAAQS to an hourly standard at a level of 75 
ppb, based on a 3-year average of the annual 99th percentile of 1-hour 
daily maximum concentrations. States were required to submit 
infrastructure SIP submissions for the 2010 1-hour primary 
SO2 NAAQS (``2010 SO2 NAAQS'') to EPA no later 
than June 2, 2013. For the 2010 SO2 NAAQS, EPA is proposing 
to approve the minor source element of the infrastructure SIP 
submission submitted by KDAQ on April 26, 2013.\4\
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    \4\ EPA approved portions of Kentucky's April 26, 2013, 
SO2 infrastructure submission in a separate action. See 
81 FR 87817 (December 6, 2016). EPA has not yet acted on the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
(II) (prongs 1, 2, and 4) for the 2010 SO2 NAAQS.
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II. What are States required to address under section 110(a)(2)(C) 
related to the minor sources element?

    Section 110(a)(2)(C) requires SIPs to ``include a program to 
provide for the enforcement of the measures described in subparagraph 
(A) [i.e., enforceable emission limitations and measures], and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
the [NAAQS] are achieved, including the permit program as required in 
parts C and D of this subchapter.'' Generally, EPA summarizes the 
requirements of 110(a)(2)(C) as requiring that SIPs address three 
components: enforcement, state-wide regulation of new and modified 
minor sources and minor modifications of major sources; and prevention 
of significant deterioration (PSD) permitting of major sources and 
major modifications in areas designated attainment or unclassifiable 
for the subject NAAQS as required by CAA title I part C (i.e., the PSD 
program).\5\ EPA is proposing action only on the minor source program 
element of 110(a)(2)(C) for Kentucky's infrastructure SIP submissions 
for the 2012 PM2.5, 2010 NO2, and 2010 
SO2 NAAQS.
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    \5\ EPA has long noted that a literal reading of the statutory 
provision to meet all requirements of section 110(a)(2) on the 
schedule provided in section 110(a)(1) would create a conflict with 
the nonattainment provisions in part D of Title I of the CAA, which 
specifically address nonattainment area SIP requirements. See id. at 
4. For example, section 110(a)(2)(C), in part, pertains to the 
permit program required in part D of the CAA, which are 
nonattainment SIP requirements. The provisions in section 172(b) for 
submission of such plans for nonattainment areas differ from the 
timing requirements for an infrastructure SIP submission under 
110(a)(1). Thus, rather than applying all the stated requirements of 
section 110(a)(2) in a strict, literal sense, EPA has determined 
that certain provisions like the part D permit program requirements 
in 110(a)(2)(C) and 110(a)(2)(I) are not applicable for a particular 
infrastructure SIP submission. See generally ``Guidance on 
Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum from Stephen 
D. Page, September 13, 2013 (hereinafter, ``2013 Guidance''), at 4-
5, 24, and 52.
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    EPA rules addressing SIP requirements for pre-construction 
regulatory programs that apply to minor sources and minor modifications 
are at 40 CFR 51.160 through 51.164. Pursuant the 2013 guidance, EPA's 
review of infrastructure SIP submissions with respect to the minor 
source requirements in section 110(a)(2)(C) focuses on assuring that 
the state's SIP meets basic minor source program requirements. Thus, 
EPA evaluates whether the state has identified existing EPA-approved 
SIP provisions (or submitted for approval new provisions) containing 
requirements for minor sources and minor modifications (minor new 
source review (NSR) program) and whether the program addresses the 
pollutants relevant to that NAAQS.\6\
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    \6\ 2013 Guidance at 24.
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III. What is EPA's analysis of how Kentucky addressed section 
110(a)(2)(C) related to the minor sources element?

    On April 26, 2013, and February 8, 2016, KDAQ submitted 
infrastructure SIP submissions to EPA that addressed the minor source 
element of section 110(a)(2)(C) for the pollutants relevant to the 2012 
PM2.5, 2010 NO2, and 2010 SO2 NAAQS, 
in addition to other infrastructure SIP requirements. KDAQ also 
provided clarifying information to EPA on December 18, 2017, and May 2, 
2018, describing Kentucky's suite of SIP-approved regulations which 
comprise the basic structural elements of the minor source program in 
the Commonwealth.\7\ Specifically, the Commonwealth cited to the 
following Kentucky Administrative Regulations (KAR) under title 401 to 
meet the minor source SIP requirements: Kentucky's NSR permitting 
regulations are found at 401 KAR 51:001, Definitions of Chapter 51; 401 
KAR 51:017, Prevention of significant deterioration of air quality; and 
401 KAR 51:052, Review of new

[[Page 55340]]

sources in or impacting upon nonattainment areas. Kentucky addresses 
requirements for public participation and public availability of 
information through 401 KAR 52:100, Public, affected state, and U.S. 
EPA review. 401 KAR 50:060, Enforcement, establishes legally 
enforceable procedures. Air dispersion modeling requirements under the 
NSR permitting process are addressed in 401 KAR 51:017; 401 KAR 51:052; 
and 401 KAR 50:040, Air quality models. 401 KAR 50:065, Conformity of 
general federal actions, sets forth procedures for determining the 
conformity of general federal actions to the Kentucky SIP and requires 
consultation between federal government and state government, and, as 
applicable, any local agency. 401 KAR 50:042, Good engineering practice 
stack height, addresses stack height requirements. Further, Kentucky's 
May 2, 2018, correspondence describes how minor sources are evaluated 
in the NSR permitting process, including how these sources are 
incorporated into NSR air dispersion modeling analyses as relevant to 
each case.
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    \7\ Kentucky correspondence to EPA dated December 18, 2017, and 
May 2, 2018, are in each of the dockets for this action under 
``Proposed Rule-2.''
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    Based on the information Kentucky provided in its SIP submissions 
dated February 8, 2016, and April 26, 2013, and clarified in 
correspondence to EPA dated December 18, 2017, and May 2, 2018, EPA is 
proposing to determine Kentucky has a SIP-approved minor NSR program 
that addresses the pollutants relevant to the 2012 PM2.5, 
2010 NO2, and 2010 SO2 NAAQS. EPA has therefore 
made the preliminary determination that Kentucky's SIP satisfies 
section 110(a)(2)(C) for new and modified minor sources and minor 
modifications of major sources related to the 2012 PM2.5, 
2010 NO2, and 2010 SO2 NAAQS.

IV. Proposed Action

    As described above, EPA is proposing to approve the portions of the 
infrastructure SIP submissions from Kentucky dated February 8, 2016, 
and April 26, 2013, addressing the minor source requirements of section 
110(a)(2)(C) of the CAA for the 2012 PM2.5, 2010 
NO2, and 2010 SO2 NAAQS. EPA is proposing 
approval of the minor source portions of these submissions because they 
are consistent with section 110 of the CAA.

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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided they meet the criteria of the CAA. These actions merely 
propose to approve state law as meeting Federal requirements and do not 
impose additional requirements beyond those imposed by state law. For 
that reason, these proposed actions:
     Are not significant regulatory actions subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Are not Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory actions because SIP approvals are exempted under 
Executive Order 12866;
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Reporting and 
recordkeeping requirements, Particulate matter, Sulfur dioxide.

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

    Dated: October 25, 2018.
Onis ``Trey'' Glen, III,
Regional Administrator, Region 4.
[FR Doc. 2018-24203 Filed 11-2-18; 8:45 am]
 BILLING CODE 6560-50-P