[Federal Register Volume 85, Number 171 (Wednesday, September 2, 2020)]
[Rules and Regulations]
[Pages 54507-54509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17263]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2019-0217; FRL-10013-28-Region 4]


Air Plan Approvals; KY; Prevention of Significant Deterioration 
and Modeling Infrastructure Requirements for 2015 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve portions of the Kentucky infrastructure State 
Implementation Plan (SIP) submission for the 2015 8-hour ozone National 
Ambient Air Quality Standards (NAAQS) submitted to EPA in a letter 
dated January 11, 2019. Whenever EPA promulgates a new or revised 
NAAQS, the Clean Air Act (CAA or Act) requires that each state adopt 
and submit a SIP submission to establish that the state's SIP meets 
infrastructure requirements for the implementation, maintenance, and 
enforcement of each such NAAQS. Specifically, EPA is taking final 
action to approve portions of the Kentucky infrastructure SIP 
submission that address the prevention of significant deterioration 
(PSD) and modeling requirements for the 2015 8-hour ozone NAAQS.

DATES: This rule is effective October 2, 2020.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2019-0217. 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 can either 
be retrieved electronically via 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: Andres Febres, 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. The telephone number is 
(404) 562-8966. Mr. Febres can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On October 1, 2015, EPA promulgated revised primary and secondary 
NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts 
per million (ppm) to a new more protective level of 0.070 ppm. See 80 
FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIP revisions meeting the applicable 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS or within such shorter period as EPA may 
prescribe. Section 110(a)(2) requires states to address basic SIP 
elements such as requirements for monitoring, basic program 
requirements, and legal authority that are designed to assure 
attainment and maintenance of the NAAQS. This particular type of SIP is 
commonly referred to as an ``infrastructure SIP.'' States were required 
to submit such SIP revisions for the 2015 8-hour ozone NAAQS to EPA no 
later than October 1, 2018.\1\
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    \1\ In infrastructure SIP submissions, states generally certify 
evidence of compliance with sections 110(a)(1) and (2) of the CAA 
through a combination of state regulations and statutes, some of 
which have been incorporated into the SIP. In addition, certain 
federally-approved, non-SIP regulations may also be appropriate for 
demonstrating compliance with sections 110(a)(1) and (2).
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    As explained in a notice of proposed rulemaking (NPRM) published on 
July 6, 2020 (85 FR 40165), Kentucky cites to several regulations \2\ 
to demonstrate that their respective SIPs meet the PSD-related 
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 
3),\3\ 110(a)(2)(J), and 110(a)(2)(K). In addition to the regulations 
approved into the SIP, a state may also rely on EPA's January 17, 2017 
(82 FR 5182), final rulemaking entitled, ``Revisions to the Guideline 
on Air Quality Models: Enhancements to the AERMOD Dispersion Modeling 
System and Incorporation of Approaches To Address Ozone and Fine 
Particulate Matter'' (also referred to as the 2017 Guideline) \4\ to 
satisfy the modeling requirements of Section 110(a)(2)(K). On February 
4, 2020, the Commonwealth of Kentucky submitted a letter to EPA to 
demonstrate that its existing SIP-approved regulations provide the 
state with the authority to integrate and implement the requirements 
and recommendations of the current version of EPA's 2017 Guideline. In 
its February 4, 2020, letter, the Commonwealth clarified that, pursuant 
to 401 KAR 50:040 and 401 KAR 51:017, the Commonwealth has the 
authority to use

[[Page 54508]]

alternative modeling, and that modeling based on the Guideline, as 
published on January 17, 2017, is the most appropriate.\5\
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    \2\ Kentucky's January 11, 2019, infrastructure SIP submission 
cites several SIP-approved regulations under Chapters 50 and 51, 
including the following: 401 KAR 51:010,1 Attainment status 
designations; 401 KAR 51:017, Prevention of significant 
deterioration of air quality; and 401 KAR 50:040, Air quality 
models, to meet the PSD program requirements of sections 
110(a)(2)(C),110(a)(2)(D)(i)(II) (Prong 3), 110(a)(2)(J), and 
110(a)(2)(K).
    \3\ Section 110(a)(2)(D)(i)(II) contains a provision that 
prohibits emissions activity in one state from interfering with 
measures required to prevent significant deterioration of air 
quality in another state, which is commonly referred to as ``prong 
3.''
    \4\ EPA's Guideline on Air Quality Models is codified at 40 CFR 
part 51, Appendix W and is generically referred to as Guideline 
herein.
    \5\ See February 4, 2020, letter ``RE: Clarification of the use 
of Appendix W within Kentucky's 2015 8-hour Ozone Infrastructure SIP 
submittal'' from Melissa Duff, Director of Division of Air Quality 
for Kentucky Energy and Environment Cabinet, Department of 
Environmental Protection to Mary S. Walker, Regional Administrator 
for U.S. Environmental Protection Agency, Region 4. The February 4, 
2020, letter is in the docket for this proposed rulemaking.
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    EPA has evaluated Kentucky's January 11, 2019, submittal \6\ and 
the February 4, 2020, letter and is making the determination that 
Kentucky has demonstrated that it has the authority to use the 2017 
Guideline, and notes that the February 4, 2020, letter includes KY 
DAQ's determination that the 2017 Guideline is most appropriate for 
use. Accordingly, EPA is taking final action to approve Kentucky's use 
of the 2017 Guideline as outlined in KY DAQ's February 4, 2020, letter 
and making a finding that Kentucky's infrastructure SIP submission 
demonstrates that new major sources and major modifications in areas of 
the Commonwealth designated attainment or unclassifiable for the 
specified NAAQS are subject to a federally-approved PSD permitting 
program meeting all the current structural requirements of part C of 
title I of the CAA to satisfy the infrastructure SIP PSD elements. EPA 
also concludes that Kentucky's infrastructure SIP submission, 
supplemented with the February 4, 2020, letter, meets the requirements 
of 110(a)(2)(C) for the infrastructure requirements for the 2015 8-hour 
ozone NAAQS.
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    \6\ The Commonwealth of Kentucky submitted its infrastructure 
submission through the State Planning Electronic Collaboration 
System on January 9, 2019; however, the cover letter of the 
submittal is dated January 11, 2019.
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    In the NPRM published on July 6, 2020, EPA proposed approval of 
Kentucky's infrastructure submission provided on January 11, 2019, for 
the applicable infrastructure SIP requirements of the 2015 8-hour ozone 
NAAQS. The NPRM provides additional detail regarding the background and 
rationale for EPA's action. Comments on the NPRM were due on or before 
July 27, 2020. EPA did not receive any comments during the comment 
period.

II. Final Action

    EPA is taking final action to approve the portions of Kentucky's 
January 11, 2019, 2015 8-hour ozone infrastructure SIP submission that 
address the PSD-related requirements of CAA sections 110(a)(2)(C), 
110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), and modeling 
requirements related to CAA section 110(a)(2)(K). All other outstanding 
applicable infrastructure requirements for this SIP submission have 
been or will be addressed in separate rulemakings.

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. 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 an 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 SIPs subject to these actions are 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 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 November 2, 2020. 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 
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, Volatile 
organic compounds.

    Dated: July 31, 2020.
Mary Walker,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

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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. In Sec.  52.920 amend the table in paragraph (e) by adding an entry 
for ``110(a)(1) and (2) Infrastructure Requirements for the 2015 8-Hour 
Ozone 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           State
    Name of non-regulatory SIP        geographic or     submittal date/  EPA approval date       Explanations
            provision               nonattainment area  effective date
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                                                  * * * * * * *
110(a)(1) and (2) Infrastructure   Kentucky...........       1/11/2019  9/2/2020, [Insert    Addressing PSD
 Requirements for the 2015 8-Hour                                        citation of          provisions related
 Ozone NAAQS.                                                            publication].        to major sources
                                                                                              under sections
                                                                                              110(a)(2)(C),
                                                                                              110(a)(2)(D)(i)(II
                                                                                              ) (prong 3), and
                                                                                              110(a)(2)(J), and
                                                                                              air quality
                                                                                              modeling under
                                                                                              section
                                                                                              110(a)(2)(K).
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[FR Doc. 2020-17263 Filed 9-1-20; 8:45 am]
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