[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]
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