[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]
 BILLING CODE 6560-50-P