[Federal Register Volume 84, Number 147 (Wednesday, July 31, 2019)]
[Rules and Regulations]
[Pages 37101-37103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16195]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0759; FRL-9997-40-Region4]


Air Plan Approval; Kentucky; Interstate Transport (Prongs 1 and 
2) for the 2010 1-Hour NO2 Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Kentucky, through the Kentucky Energy and Environment Cabinet by a 
letter dated November 16, 2018, for the purpose of addressing the Clean 
Air Act (CAA or Act) ``good neighbor'' interstate transport (prongs 1 
and 2) infrastructure SIP requirements for the 2010 1-hour Nitrogen 
Dioxide (NO2) National Ambient Air Quality Standard (NAAQS). 
The CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance, and enforcement of each NAAQS promulgated 
by EPA, commonly referred to as an ``infrastructure SIP.'' 
Specifically, EPA is finalizing approval of Kentucky's November 16, 
2018, SIP revision addressing prongs 1 and 2 to ensure that air 
emissions in Kentucky do not significantly contribute to nonattainment 
or interfere with maintenance of the 2010 1-hour NO2 NAAQS 
in any other state.

DATES: This rule is effective August 30, 2019.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2018-0759. All documents in these 
dockets are listed on the www.regulations.gov website. 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 Air Regulatory Management Section, Air Planning and 
Implementation Branch, Air and Radiation Division (formerly the 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: Evan Adams of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be 
reached by phone at (404) 562-9009 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 22, 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. See 75 FR 6474 (February 9, 2010). 
This NAAQS is designed to protect against exposure to the entire group 
of nitrogen oxides (NOx). NO2 is the component of greatest 
concern and is used as the indicator for the larger group of NOx. 
Emissions that lead to the formation of NO2 generally also 
lead to the formation of other NOx. Therefore, control measures that 
reduce NO2 can generally be expected to reduce population 
exposures to all gaseous NOx, which may reduce the formation of ozone 
and fine particles, both of which pose significant public health 
threats. For comprehensive information on the 2010 1-hour 
NO2 NAAQS, please refer to the February 9, 2010 (75 FR 
6474), Federal Register notice.
    When EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) 
requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), EPA believes that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. EPA has previously provided 
comprehensive guidance on the application of these provisions through a 
guidance document for infrastructure SIP submissions and through 
regional actions on infrastructure submissions. Unless otherwise noted 
below, EPA is following that existing approach in acting on this 
submission. In addition, in the context of acting on such

[[Page 37102]]

infrastructure submissions, EPA evaluates the submitting state's 
implementation plan for compliance with statutory and regulatory 
requirements, not for the state's implementation of its SIP. EPA has 
other authority to address any issues concerning a state's 
implementation of the regulations that comprise its SIP.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIPs. The first two prongs, which are codified in 
section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or 
other type of emissions activity in one state from contributing 
significantly to nonattainment of the NAAQS in another state (prong 1) 
and from interfering with maintenance of the NAAQS in another state 
(prong 2). EPA sometimes refers to prong 1 and prong 2 conjointly as 
the ``good neighbor'' provision of the CAA. The third and fourth 
prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (prong 3) and from interfering with 
measures to protect visibility in another state (prong 4). Section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement.
    EPA's most recent infrastructure SIP guidance, the September 13, 
2013, ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' did 
not explicitly include criteria for how the Agency would evaluate 
infrastructure SIP submissions intended to address section 
110(a)(2)(D)(i)(I). With respect to certain pollutants, such as ozone 
and particulate matter (PM), EPA has addressed interstate transport in 
eastern states in the context of regional rulemaking actions that 
quantify state emission reduction obligations. For NO2, EPA 
has considered available information such as current air quality, 
emissions data and trends, and regulatory provisions that control 
source emissions to determine whether emissions from one state 
interfere with the attainment or maintenance of the NAAQS in another 
state. EPA's action on Kentucky's CAA section 110(a)(2)(D)(i)(I) 
interstate transport SIP revision for the 2010 NO2 NAAQS is 
informed by these considerations.
    In a notice of proposed rulemaking (NPRM) for Kentucky, published 
on May 16, 2019 (84 FR 22084), EPA proposed to approve the Kentucky SIP 
submission on the basis that the Commonwealth's SIP adequately 
addresses prong 1 and prong 2 requirements for the 2010 1-hour 
NO2 NAAQS. The details of the Kentucky submission and the 
rationale for EPA's action are explained in the NPRM. Comments on the 
proposed rulemaking were due on or before June 17, 2019. EPA did not 
receive any comments.

II. Final Action

    As described above, EPA is taking final action to approve the 
infrastructure SIP submission transmitted under cover letter by the 
Commonwealth of Kentucky on November 16, 2018, addressing prongs 1 and 
2 of section 110(a)(2)(D)(i)(I) for the 2010 1-hour NO2 
NAAQS. EPA is approving Kentucky's infrastructure SIP submission 
because it is consistent with section 110 of the CAA.

III. 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 that they meet the criteria of the CAA. 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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, this 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 September 30, 2019. 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

[[Page 37103]]

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 dioxide, Ozone, 
Reporting and recordkeeping requirements.

    Dated: July 18, 2019.
Mary S. Walker,
Regional Administrator, Region 4.

    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 an entry for ``110(a)(1) and 
(2) Infrastructure Requirements for the 2010 1-hour NO2 
NAAQS'' 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
  Name of non-regulatory SIP      geographic or     State submittal date/
           provision              nonattainment         effective date      EPA approval date     Explanations
                                       area
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                                                  * * * * * * *
110(a)(1) and (2)               Kentucky.........                 11/16/18  7/31/19 [Insert    Addressing Prongs
 Infrastructure Requirements                                                 citation of        1 and 2 of
 for the 2010 1-hour NO2 NAAQS.                                              publication].      section
                                                                                                110(a)(2)(D)(i)
                                                                                                only.
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[FR Doc. 2019-16195 Filed 7-30-19; 8:45 am]
 BILLING CODE 6560-50-P