[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Rules and Regulations]
[Pages 7449-7452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01747]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0155; FRL-10004-69-Region 4]
Air Plan Approval; Kentucky: Cross-State Air Pollution Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving changes
to the Kentucky State Implementation Plan (SIP) concerning the Cross-
State Air Pollution Rule (CSAPR) submitted by Kentucky on September 14,
2018, as later clarified on December 18, 2018. Under CSAPR, large
electricity generating units (EGUs) in Kentucky are subject to Federal
Implementation Plans (FIPs) requiring the units to participate in
CSAPR's federal trading program for annual emissions of nitrogen oxides
(NOX), one of CSAPR's two federal trading programs for ozone
season emissions of NOX, and one of CSAPR's two federal
trading programs for annual emissions of sulfur dioxide
(SO2). This action approves into the SIP the Commonwealth's
regulations requiring large Kentucky EGUs to participate in CSAPR state
trading programs for annual NOX emissions and annual
SO2 emissions integrated with the CSAPR federal trading
programs, replacing the corresponding FIP requirements. EPA is
approving the portions of the SIP revision concerning these CSAPR state
trading programs because the SIP revision meets the requirements of the
Clean Air Act (CAA or Act) and EPA's regulations for approval of a
CSAPR full SIP revision replacing the requirements of a CSAPR FIP.
Under the CSAPR regulations, approval of these portions of the SIP
revision automatically eliminates Kentucky units' obligations to
participate in CSAPR's federal trading programs for annual
NOX emissions and annual SO2 emissions under the
corresponding CSAPR FIPs addressing interstate transport requirements
for the 1997 annual fine particulate matter (PM2.5) national
ambient air quality standard (NAAQS) and the 2006 24-hour
PM2.5 NAAQS. Approval of these portions of the SIP revision
would also satisfy Kentucky's good neighbor obligation under the CAA to
prohibit emissions which will significantly contribute to nonattainment
or interfere with maintenance of the 1997 annual PM2.5 NAAQS
and 2006 24-hour PM2.5 NAAQS.
DATES: This rule is effective March 11, 2020.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2019-0155. All documents in the docket
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, 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: D. Brad Akers, 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. Akers can be
reached by telephone at (404) 562-9089 or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on CSAPR and CSAPR-Related SIP Revisions
EPA issued CSAPR in July 2011 to address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning interstate transport of air
pollution. As amended (including the 2016 CSAPR Update),\1\ CSAPR
requires 27 Eastern states to limit their statewide emissions of
SO2 and/or NOX in order to mitigate transported
air pollution unlawfully impacting other states' ability to attain or
maintain four NAAQS: The 1997 annual PM2.5 NAAQS, the 2006
24-hour PM2.5 NAAQS, the 1997 8-hour ozone NAAQS, and the
2008 8-hour ozone NAAQS. The CSAPR emissions limitations are defined in
terms of maximum statewide ``budgets'' for emissions of annual
SO2, annual NOX, and/or ozone season
NOX by each covered state's large EGUs. The CSAPR state
budgets are implemented in two phases of generally increasing
stringency, with the Phase 1 budgets applying to emissions in 2015 and
2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions
in 2017 and later years. As a mechanism for achieving compliance with
the emissions limitations, CSAPR establishes five federal emissions
trading programs: A program for annual NOX emissions, two
geographically separate programs for annual SO2 emissions,
and two geographically separate programs for ozone-season
NOX emissions. CSAPR also establishes FIP requirements
applicable to the large EGUs in each covered state. Currently, the
CSAPR FIP provisions require each state's units to participate in up to
three of the five CSAPR trading programs.
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\1\ See 81 FR 74504 (October 26, 2016). The CSAPR Update was
promulgated to address interstate pollution with respect to the 2008
ozone NAAQS and to address a judicial remand of certain original
CSAPR ozone season NOX budgets promulgated with respect
to the 1997 ozone NAAQS. See 81 FR at 74505. The CSAPR Update
established new emission reduction requirements addressing the more
recent NAAQS and coordinated them with the remaining emission
reduction requirements addressing the older NAAQS, so that starting
in 2017, CSAPR includes two geographically separate trading programs
for ozone season NOX emissions covering EGUs in a total
of 23 states. See 40 CFR 52.38(b)(1)-(2). EPA acknowledges that the
D.C. Circuit issued decisions in Wisconsin v. EPA, 938 F.3d 303
(Sept. 13, 2019) and New York v. EPA, 781 Fed. Appx. 4 (Oct. 1,
2019) regarding the CSAPR Update; however, those decisions did not
address the annual programs designed to fulfill the requirements of
the 1997 and 2006 PM2.5 NAAQS.
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CSAPR includes provisions under which states may submit and EPA
will approve SIP revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's federal emissions
[[Page 7450]]
trading programs or state emissions trading programs integrated with
the federal programs.\2\ Through such a SIP revision, a state may
replace EPA's default provisions for allocating emission allowances
among the state's units, employing any state-selected methodology to
allocate or auction the allowances, subject to timing conditions and
limits on overall allowance quantities. In the case of CSAPR's federal
trading programs for ozone season NOX emissions (or an
integrated state trading program), a state may also expand trading
program applicability to include certain smaller electricity generating
units.\3\ If a state wants to replace CSAPR FIP requirements with SIP
requirements under which the state's units participate in a state
trading program that is integrated with and identical to the federal
trading program even as to the allocation and applicability provisions,
the state may submit a SIP revision for that purpose as well. However,
no emissions budget increases or other substantive changes to the
trading program provisions are allowed. A state whose units are subject
to multiple CSAPR FIPs and federal trading programs may submit SIP
revisions to modify or replace either some or all of those FIP
requirements.
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\2\ See 40 CFR 52.38, 52.39. States also retain the ability to
submit SIP revisions to meet their transport-related obligations
using mechanisms other than the CSAPR federal trading programs or
integrated state trading programs.
\3\ States covered by both the CSAPR Update and the
NOX SIP Call have the additional option to expand
applicability under the CSAPR NOX Ozone Season Group 2
Trading Program to include non-electric generating units that would
have participated in the former NOX Budget Trading
Program.
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States can submit two basic forms of CSAPR-related SIP revisions
effective for emissions control periods in 2017 or later years (or 2019
or later years in the case of the CSAPR NOX Ozone Season
Group 2 Trading Program).\4\ Under the first alternative--an
``abbreviated'' SIP revision--a state may submit a SIP revision that
upon approval replaces the default allowance allocation and/or
applicability provisions of a CSAPR federal trading program for the
state.\5\ Approval of an abbreviated SIP revision leaves the
corresponding CSAPR FIP and all other provisions of the relevant
federal trading program in place for the state's units.
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\4\ CSAPR also provides for a third, more streamlined form of
SIP revision that is effective only for control periods in 2016 (or
2018 in the case of the CSAPR NOX Ozone Season Group 2
Trading Program) and is not relevant here. See 40 CFR 52.38(a)(3),
(b)(3), (b)(7); 52.39(d), (g).
\5\ See 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
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Under the second alternative--a ``full'' SIP revision--a state may
submit a SIP revision that upon approval replaces a CSAPR federal
trading program for the state with a state trading program integrated
with the federal trading program, so long as the state trading program
is substantively identical to the federal trading program or does not
substantively differ from the federal trading program except as
discussed above with regard to the allowance allocation and/or
applicability provisions.\6\ For purposes of a full SIP revision, a
state may either adopt state rules with complete trading program
language, incorporate the federal trading program language into its
state rules by reference (with appropriate conforming changes), or
employ a combination of these approaches.
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\6\ See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
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The CSAPR regulations identify several important consequences and
limitations associated with approval of a full SIP revision. First,
upon EPA's approval of a full SIP revision as correcting the deficiency
in the state's implementation plan that was the basis for a particular
set of CSAPR FIP requirements, the obligation to participate in the
corresponding CSAPR federal trading program is automatically eliminated
for units subject to the state's jurisdiction without the need for a
separate EPA withdrawal action, so long as EPA's approval of the SIP is
full and unconditional.\7\ Second, approval of a full SIP revision does
not terminate the obligation to participate in the corresponding CSAPR
federal trading program for any units located in any Indian country
within the borders of the state, and if and when a unit is located in
Indian country within a state's borders, EPA may modify the SIP
approval to exclude from the SIP, and include in the surviving CSAPR
FIP instead, certain trading program provisions that apply jointly to
units in the state and to units in Indian country within the state's
borders.\8\
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\7\ See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
\8\ See 40 CFR 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi),
(b)(9)(vi)-(vii), (b)(10)(i); 52.39(f)(4)-(5), (i)(4)-(5), (j).
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Finally, if at the time a full SIP revision is approved EPA has
already started recording allocations of allowances for a given control
period to a state's units, the federal trading program provisions
authorizing EPA to complete the process of allocating and recording
allowances for that control period to those units will continue to
apply, unless EPA's approval of the SIP revision provides otherwise.\9\
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\9\ See 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
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In the 2011 CSAPR rulemaking, among other findings, EPA determined
that air pollution transported from Kentucky would unlawfully affect
other states' ability to attain and maintain the 1997 annual
PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS,
established annual NOX and SO2 budgets for
Kentucky's EGUs representing full remedies for the Commonwealth's
interstate transport obligations with respect to these NAAQS, and
implemented the budgets by including the EGUs in annual NOX
and SO2 trading programs.\10\ Consequently, Kentucky's units
meeting the CSAPR applicability criteria are currently subject to CSAPR
FIPs that require participation in the CSAPR NOX Annual
Trading Program and the CSAPR SO2 Group 1 Trading Program in
order to address, in full, the Commonwealth's interstate transport
obligations with respect to both the 1997 annual PM2.5 NAAQS
and the 2006 24-hour PM2.5 NAAQS.\11\
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\10\ See 76 FR at 48209-13.
\11\ See 40 CFR 52.38(a)(2)(i); 52.39(b); 52.940(a)(1);
52.941(a).
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In a notice of proposed rulemaking (NPRM) published on July 30,
2019 (84 FR 36852), EPA proposed to approve Kentucky's September 14,
2018, SIP submittal designed to replace the CSAPR federal annual
SO2 and NOX trading programs and ozone season
NOX trading program. Comments on the NPRM were due on or
before August 29, 2019. EPA received adverse comments on the proposed
action to approve the portions of Kentucky's submittal designed to
replace the CSAPR federal ozone season NOX trading program.
However, EPA received no adverse comments on the proposed action to
approve the portions of Kentucky's submittal designed to replace the
CSAPR federal annual SO2 and NOX trading
programs.
In this action, EPA is finalizing approval of the portions of
Kentucky's SIP which replace the CSAPR federal annual SO2
and NOX trading programs only. EPA will address the
remaining portions of the September 14, 2018, SIP submittal in a
separate action. Please refer to the NPRM for more detailed information
regarding the SIP revision and the Agency's rationale for today's final
rulemaking.
II. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In
[[Page 7451]]
accordance with requirements of 1 CFR 51.5, EPA is finalizing the
incorporation by reference of the Kentucky Regulations 401 KAR 51:240,
entitled ``Cross-State Air Pollution Rule (CSAPR) NOX annual
trading program'' and 401 KAR 51.260, entitled ``Cross-State Air
Pollution Rule (CSAPR) SO2 group 1 trading program.'' EPA is
approving the portions of the SIP revision concerning these CSAPR state
trading programs because the SIP revision meets the requirements of the
Act and EPA's regulations for approval of a CSAPR full SIP revision
replacing the requirements of a CSAPR FIP. The rules became state-
effective as of July 5, 2018. EPA has made, and will continue to make,
these materials generally available through www.regulations.gov and at
the EPA Region 4 Office (please contact the person identified in the
``For Further Information Contact'' section of this preamble for more
information). Therefore, these materials have been approved by EPA for
inclusion in the State implementation plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.\12\
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\12\ See 62 FR 27968 (May 22, 1997).
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III. Final Action
EPA is approving portions of Kentucky's September 14, 2018, SIP
submittal, as clarified by the December 18, 2018, letter, concerning
the establishment of CSAPR state trading programs for Kentucky units
for annual NOX and SO2 emissions. These portions
of this SIP revision adopt into the SIP state trading program rules
codified in Kentucky regulations at 401 KAR 51:240, ``Cross-State Air
Pollution Rule (CSAPR) NOX annual trading program'' and 401
KAR 51.260, ``Cross-State Air Pollution Rule (CSAPR) SO2
group 1 trading program.'' These Kentucky CSAPR state trading programs
will be integrated with the federal CSAPR NOX Annual Trading
Program and the federal CSAPR SO2 Group 1 Trading Program,
respectively, and are substantively identical to the federal trading
programs. Kentucky units therefore will generally be required to meet
requirements under Kentucky's CSAPR state trading programs equivalent
to the requirements the units otherwise would have been required to
meet under the corresponding CSAPR federal trading programs. Under the
Commonwealth's regulations, Kentucky will retain EPA's default
allowance allocation methodology and EPA will remain the implementing
authority for administration of the trading programs. EPA is approving
the SIP revision because it meets the requirements of the CAA and EPA's
regulations for approval of a CSAPR full SIP revision replacing a
federal trading program with a state trading program that is integrated
with and substantively identical to the federal trading program.
EPA promulgated the FIP provisions requiring Kentucky units to
participate in the federal CSAPR NOX Annual Trading Program
and the federal CSAPR SO2 Group 1 Trading Program in order
to address Kentucky's obligations under CAA section 110(a)(2)(D)(i)(I)
with respect to the 1997 Annual PM2.5 NAAQS and the 2006 24-
hour PM2.5 NAAQS in the absence of SIP provisions addressing
those requirements. Approving the Kentucky SIP submittal adopting CSAPR
state trading program rules for annual NOX and
SO2 substantively identical to the corresponding CSAPR
federal trading program regulations (or differing only with respect to
the allowance allocation methodology) corrects the same deficiencies in
the SIP that otherwise would be corrected by those CSAPR FIPs. Under
the CSAPR regulations, upon EPA's full and unconditional approval of a
SIP revision as correcting the SIP's deficiency that is the basis for a
particular CSAPR FIP, the obligation to participate in the
corresponding CSAPR federal trading program is automatically eliminated
for units subject to the state's jurisdiction (but not for any units
located in any Indian country within the state's borders).\13\ EPA's
approval of portions of Kentucky's SIP submittal establishing CSAPR
state trading program rules for annual NOX emissions and
annual SO2 emissions therefore results in automatic
termination of the obligations of Kentucky units to participate in the
federal CSAPR NOX Annual Trading Program and the federal
CSAPR SO2 Group 1 Trading Program.
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\13\ See 40 CFR 52.38(a)(6); 52.39(j).
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IV. 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. These actions merely
approve state law as meeting Federal requirements and do not impose
additional requirements beyond those imposed by state law. For that
reason, these 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.
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
[[Page 7452]]
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 these
actions 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 these actions must be filed in the United States Court of Appeals
for the appropriate circuit by April 10, 2020. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions 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. These actions may not be challenged later in proceedings to
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,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: January 15, 2020.
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 A-General Provisions
0
2. Amend Sec. 52.38 by revising paragraph (a)(8)(iii) to read as
follows:
Sec. 52.38 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of nitrogen oxides?
(a) * * *
(8) * * *
(iii) For each of the following States, the Administrator has
approved a SIP revision under paragraph (a)(5) of this section as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan set forth in paragraphs (a)(1), (a)(2)(i), and
(a)(3) and (4) of this section with regard to sources in the State (but
not sources in any Indian country within the borders of the State):
Alabama, Georgia, Indiana, Kentucky, Missouri, and South Carolina.
* * * * *
0
3. Amend Sec. 52.39 by revising paragraph (l)(3) to read as follows:
Sec. 52.39 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of sulfur dioxide?
* * * * *
(l) * * *
(3) For each of the following States, the Administrator has
approved a SIP revision under paragraph (f) of this section as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan set forth in paragraphs (a), (b), (d), and (e) of
this section with regard to sources in the State (but not sources in
any Indian country within the borders of the State): Indiana, Kentucky,
and Missouri.
* * * * *
Subpart S--Kentucky
0
4. Amend Sec. 52.920, in paragraph (c), in Table 1 under the heading
``Chapter 51 Attainment and Maintenance of the National Ambient Air
Quality Standards'' by adding in numerical order entries for ``401 KAR
51:240'' and ``401 KAR 51:260'' to read as follows:
Sec. 52.920 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA-Approved Kentucky Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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* * * * * * *
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Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
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* * * * * * *
401 KAR 51:240................. Cross-State Air 7/5/2018 2/10/2020 [Insert .......................
Pollution Rule Federal Register
(CSAPR) NOX citation].
annual trading
program.
401 KAR 51:260................. Cross-State Air 7/5/2018 2/10/2020 [Insert .......................
Pollution Rule Federal Register
(CSAPR) SO2 group citation].
1 trading program.
* * * * * * *
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[FR Doc. 2020-01747 Filed 2-7-20; 8:45 am]
BILLING CODE 6560-50-P