[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Rules and Regulations]
[Pages 13800-13803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06740]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2018-0799; FRL-9991-82-Region 4]
Air Plan Approval; Kentucky; Regional Haze Plan and Prong 4
(Visibility) for the 1997 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking four
actions regarding the Kentucky State Implementation Plan (SIP).
Specifically, EPA is approving Kentucky's November 16, 2018, SIP
submittal seeking to change reliance from the Clean Air Interstate Rule
(CAIR) to the Cross-State Air Pollution Rule (CSAPR) for certain
regional haze requirements; converting EPA's limited approval/limited
disapproval of Kentucky's regional haze SIP to a full approval;
removing EPA's Federal Implementation Plan (FIP) for Kentucky which
relied on CSAPR to address the deficiencies identified in the limited
disapproval of Kentucky's regional haze SIP; and approving the
visibility prong of Kentucky's infrastructure SIP submittals for the
1997 8-hour Ozone, 2010 Nitrogen Dioxide (NO2), 2010 Sulfur
Dioxide (SO2), and 2012 Fine Particulate Matter
(PM2.5) National Ambient Air Quality Standards (NAAQS).
DATES: This rule will be effective May 8, 2019.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2018-0799. All documents in the dockets
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be 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 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. 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: 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 by telephone at (404) 562-
9031 or via electronic mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On March 30, 2012, EPA finalized a limited approval and a limited
disapproval of SIP revisions submitted by Kentucky on June 25, 2008,
and May 28, 2010, addressing regional haze program requirements.\1\ The
limited disapproval of these SIP revisions was based upon, and limited
to, the Commonwealth's reliance on CAIR as an alternative to best
available retrofit technology (BART) for nitrogen oxide
(NOX) and SO2 at certain electric generating
units (EGUs); as a measure for reasonable progress with respect to
SO2 emissions from these units during the first
implementation period; \2\ and as an element of a long-term strategy
(LTS) for achieving its reasonable progress goals (RPGs).\3\ In the
March 30, 2012,
[[Page 13801]]
action, EPA determined that Kentucky's regional haze SIP revisions
satisfied all other necessary elements for a fully approvable regional
haze program, including BART for particulate matter (PM) at EGUs
formerly subject to CAIR. On June 7, 2012, EPA finalized a FIP for
Kentucky (hereinafter referred to as the ``partial Regional Haze FIP'')
that replaced reliance on CAIR with reliance on CSAPR to meet
NOX and SO2 BART for EGUs formerly subject to
CAIR thereby addressing the deficiencies in the Commonwealth's CAIR-
dependent regional haze SIP.\4\
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\1\ See 77 FR 19098.
\2\ EPA approved Kentucky's determination in its regional haze
SIP revisions to focus solely on evaluating SO2 emissions
from EGU and non-EGU point sources in its reasonable progress
analysis for the first implementation period. See 77 FR 19098 (March
30, 2012). Kentucky based its determination on a sensitivity
analysis from the Visibility Improvement State and Tribal
Association of the Southeast (VISTAS) regional planning organization
demonstrating that sulfate particles resulting from SO2
emissions are the dominant contributor to visibility impairment on
the 20 percent worst days at all Class I areas in the VISTAS states,
including Kentucky. For more information, see 76 FR 78194 (December
16, 2011).
\3\ EPA demonstrated that CAIR would achieve greater reasonable
progress than BART in revisions to the regional haze program made in
2005. See 70 FR 39104 (July 6, 2005). In those revisions, EPA
amended its regulations to provide that states participating in the
CAIR cap-and-trade programs pursuant to an EPA-approved CAIR SIP or
states that remain subject to a CAIR FIP need not require affected
BART-eligible EGUs to install, operate, and maintain BART for
emissions of SO2 and NOX. As a result of EPA's
determination that CAIR was ``better-than-BART,'' a number of states
in the CAIR region, including Kentucky, relied on the CAIR cap-and-
trade programs as an alternative to BART for EGU emissions of
SO2 and NOX in designing their regional haze
plans. These states also relied on CAIR as an element of an LTS for
achieving their reasonable progress goals (RPGs) for their regional
haze programs. However, in 2008, the United States Court of Appeals
for the District of Columbia Circuit (D.C. Circuit) remanded CAIR to
EPA without vacatur to preserve the environmental benefits provided
by CAIR. North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's
remand, EPA promulgated CSAPR to replace CAIR and issued FIPs to
implement the rule in CSAPR-subject states. CSAPR has now replaced
the CAIR program. Kentucky is subject to the CSAPR annual
NOX, ozone-season NOX, and SO2
trading programs.
\4\ 77 FR 33642.
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On November 16, 2018, Kentucky submitted a SIP revision to change
its reliance from CAIR to CSAPR for the purpose of meeting the
NOX and SO2 BART requirements for EGUs formerly
subject to CAIR; the reasonable progress requirements with respect to
SO2 emissions from these units; and the requirement that an
LTS contain all measures necessary to achieve reasonable progress,
thereby eliminating the Commonwealth's need for the partial Regional
Haze FIP. Kentucky also submitted the SIP revision to satisfy its
outstanding interstate visibility transport obligations under section
110(a)(2)(D)(i)(II) of the CAA (also known as ``prong 4''). Thus,
Kentucky is seeking EPA approval for its 1997 8-hour ozone
infrastructure SIP (iSIP) submission (December 13, 2007); 2010 1-hour
NO2 and 2010 1-hour SO2 iSIP submission (April
26, 2013); and annual PM2.5 iSIP submission (February 8,
2016).\5\
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\5\ By statute, plans meeting the requirements of sections
110(a)(1) and (2) of the CAA are to be submitted by states within
three years (or less, if the Administrator so prescribes) after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made
for the purpose of satisfying the requirements of sections 110(a)(1)
and 110(a)(2) as ``infrastructure SIP'' submissions.
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Prong 4 requires that a state's implementation plan include
adequate provisions prohibiting any source or other type of emissions
activity in one state from interfering with measures to protect
visibility required to be included in another state's implementation
plan. EPA's 2013 Guidance on Infrastructure SIP Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2) (2013 Guidance) provides that
one way a state may demonstrate that its SIP will ensure that emissions
from the state will not interfere with measures required to be in other
states' plans to protect visibility (i.e., to satisfy prong 4) is
through confirmation in its infrastructure SIP submission that it has
an approved regional haze SIP that fully meets the requirements of 40
CFR 51.308 or 51.309.\6\ Kentucky's aforementioned iSIPs rely on the
Commonwealth's regional haze SIP to satisfy prong 4 requirements;
therefore, today's full approval of Kentucky's regional haze SIP allows
for approval of the prong 4 elements in these iSIPs.
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\6\ See EPA, Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2), at 33 (Sept. 13, 2013), available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
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On February 15, 2019 (84 FR 4407), EPA published a notice of
proposed rulemaking (NPRM) proposing to: (1) Approve Kentucky's
November 16, 2018, SIP submission to change reliance from CAIR to CSAPR
in its regional haze SIP; (2) convert EPA's limited approval/limited
disapproval of Kentucky's regional haze SIP to a full approval; (3)
remove EPA's FIP for Kentucky which replaced reliance on CAIR with
reliance on CSAPR to address the deficiencies identified in the limited
disapproval of Kentucky's regional haze SIP; and (4) approve the prong
4 portions of Kentucky's 1997 8-hour ozone iSIP submission (December
13, 2007); 2010 1-hour NO2 and 2010 1-hour SO2
iSIP submission (April 26, 2013); and 2012 annual PM2.5 iSIP
submission (February 8, 2016). EPA did not receive any comments on its
February 15, 2019, proposal.
II. Summary of SIP Revision and EPA Analysis
Kentucky's November 16, 2018, SIP revision corrects the
deficiencies identified by EPA in the June 7, 2012 limited disapproval
of the Commonwealth's regional haze SIP by replacing reliance on CAIR
with reliance on CSAPR. As discussed in the NPRM in greater detail, EPA
finds that this SIP revision satisfies the NOX and
SO2 BART requirements for EGUs formerly subject to CAIR; the
reasonable progress requirements with respect to SO2
emissions from these units; and the requirement that an LTS contain all
measures necessary to achieve reasonable progress, and thus, allows for
a fully-approvable regional haze SIP.
EPA finds that the Commonwealth's reliance on CSAPR for certain
BART, reasonable progress, and LTS requirements is in accordance with
the CAA and regional haze rule requirements (including 40 CFR
51.308(e)(2)), as EPA has recently affirmed that CSAPR remains an
appropriate alternative to source-specific BART controls for EGUs
participating in CSAPR.\7\ In that action, EPA determined that changes
to CSAPR's geographic scope resulting from the actions that EPA has
taken in response to the CSAPR budget remand in EME Homer City
Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015) do not affect
the continued validity of participation in CSAPR as a BART
alternative.\8\ Because the deficiencies in Kentucky's regional haze
SIP that were identified in EPA's limited disapproval are addressed
through the November 16, 2018 SIP revision, the Agency is now fully
approving the Commonwealth's regional haze SIP.
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\7\ See 82 FR 45481 (September 29, 2017).
\8\ Numerous parties filed petitions for review of CSAPR in the
D.C. Circuit, and on August 21, 2012, the court issued its ruling,
vacating and remanding CSAPR to EPA and ordering continued
implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696
F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was
reversed by the United States Supreme Court on April 29, 2014, and
the case was remanded to the D.C. Circuit to resolve remaining
issues in accordance with the high court's ruling. EPA v. EME Homer
City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C.
Circuit affirmed CSAPR in most respects, but invalidated without
vacating some of the CSAPR budgets as to a number of states. EME
Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015).
The remanded budgets included the Phase 2 SO2 emissions
budgets for four states and the Phase 2 ozone-season NOX
budgets for 11 states. The court did not invalidate the CSAPR
budgets for Kentucky.
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Additionally, EPA finds that the prong 4 portions of Kentucky's
iSIP submittals for the 1997 8-hour ozone, 2010 1-hour NO2,
2010 1-hour SO2, and 2012 annual PM2.5 NAAQS are
fully approvable because Kentucky now has a fully-approved regional
haze SIP. The specific details of these iSIP revisions and the November
16, 2018 regional haze SIP revision and the rationale for EPA's
approval of these SIP revisions are discussed in the NPRM.
III. Final Action
EPA finds that Kentucky's November 16, 2018, SIP revision satisfies
the NOX and SO2 BART requirements for EGUs
formerly subject to CAIR; the Commonwealth's reasonable progress
obligations with respect to SO2 emissions from these EGUs;
and, in combination with the previously approved elements of Kentucky's
regional haze SIP, the requirement that
[[Page 13802]]
the Commonwealth's LTS contain the measures necessary to achieve
reasonable progress. Accordingly, EPA is taking the following actions:
(1) Approving Kentucky's November 16, 2018, SIP submission to change
reliance from CAIR to CSAPR in the Commonwealth's regional haze SIP;
(2) converting EPA's limited approval/limited disapproval of Kentucky's
regional haze SIP to a full approval; (3) removing EPA's FIP for
Kentucky which replaced reliance on CAIR with reliance on CSAPR to
address the deficiencies identified in the limited disapproval of
Kentucky's regional haze SIP; and (4) approving the prong 4 portion of
Kentucky's 1997 8-hour Ozone iSIP submission (December 13, 2007); 2010
1-hour NO2 and 2010 1-hour SO2 iSIP submission
(April 26, 2013); and 2012 annual PM2.5 iSIP submission
(February 8, 2016). All other iSIP requirements applicable to these
Kentucky infrastructure SIP submissions have been or will be addressed
in separate rulemakings.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, because it does not
contain any information collection activities.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandates as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, in Kentucky. It will not have substantial direct
effects on tribal governments. EPA has determined that this action does
not have substantial direct effects on tribal governments because, as
it relates to prong 4, this action is not approving any specific rule,
but rather determining that the approved SIP for Kentucky meets certain
CAA requirements. As it relates to the regional haze SIP, replacing
reliance on CAIR with reliance on CSAPR has no substantial direct
effects because the reliance on CSAPR for regional haze purposes in
Kentucky already existed through a FIP. EPA notes that this action will
not impose substantial direct costs on Tribal governments or preempt
Tribal law.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
L. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
M. Judicial Review
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 June 7, 2019. Filing a petition for
reconsideration by the Administrator of this final rules 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 CAA section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: March 29, 2019.
Andrew R. Wheeler,
EPA Administrator.
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 52.920(e), is amended by adding new entries for ``110(a)(1)
and (2) Infrastructure Requirements for the 1997 8-hour Ozone NAAQS'',
``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour
NO2 NAAQS'', ``110(a)(1) and (2) Infrastructure
[[Page 13803]]
Requirements for the 2010 1-hour SO2 NAAQS'', ``110(a)(1)
and (2) Infrastructure Requirements for the 2012 Annual
PM2.5 NAAQS'' and ``Regional Haze Plan Revision'' at the end
of the table to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Kentucky Non-Regulatory Provisions
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Applicable State submittal
Name of non-regulatory SIP geographic or date/effective EPA approval date Explanations
provision nonattainment area date
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* * * * * * *
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110(a)(1) and (2) Kentucky.......... 12/13/2007 4/8/2019, [Insert Addressing prong 4 of
Infrastructure Requirements citation of section
for the 1997 8-hour Ozone publication]. 110(a)(2)(D)(i)(II)
NAAQS. only.
110(a)(1) and (2) Kentucky.......... 4/26/2013 4/8/2019, [Insert Addressing prong 4 of
Infrastructure Requirements citation of section
for the 2010 1-hour NO2 NAAQS. publication]. 110(a)(2)(D)(i)(II)
only.
110(a)(1) and (2) Kentucky.......... 4/26/2013 4/8/2019, [Insert Addressing prong 4 of
Infrastructure Requirements citation of section
for the 2010 1-hour SO2 NAAQS. publication]. 110(a)(2)(D)(i)(II)
only.
110(a)(1) and (2) Kentucky.......... 2/8/2016 4/8/2019, [Insert Addressing prong 4 of
Infrastructure Requirements citation of section
for the 2012 Annual PM2.5 publication]. 110(a)(2)(D)(i)(II)
NAAQS. only.
Regional Haze Plan Revision.... Kentucky.......... 11/16/2018 4/8/2019, [Insert
citation of
publication].
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Sec. 52.936 [Reserved]
0
3. Section 52.936 is removed and reserved.
[FR Doc. 2019-06740 Filed 4-5-19; 8:45 am]
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