[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Proposed Rules]
[Pages 14626-14631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6260]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0426-201030; FRL-9282-6]


Approval and Promulgation of Implementation Plans; Kentucky; 
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP), submitted by the Commonwealth of Kentucky, through the Division 
of Air Quality (DAQ) of the Kentucky Environmental and Public 
Protection Cabinet, now called the Energy and Environment Cabinet, as 
demonstrating that the Commonwealth meets the requirements of sections 
110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 1997 8-hour 
ozone national ambient air quality standards (NAAQS). Section 110(a) of 
the CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by the EPA and is commonly referred to as an ``infrastructure'' SIP. 
Kentucky certified that the Kentucky SIP contains provisions that 
ensure the 1997 8-hour ozone NAAQS are implemented, enforced, and 
maintained in Kentucky (hereafter referred to as ``infrastructure 
submission''). Kentucky's infrastructure submission, provided to EPA on 
December 13, 2007, addressed all the required infrastructure elements 
for the 1997 8-hour ozone NAAQS.

DATES: Written comments must be received on or before April 18, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-0426, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#5a383f34303b3733347436233435283b3f1a3f2a3b743d352c"><span class="__cf_email__" data-cfemail="dcbeb9b2b6bdb1b5b2f2b0a5b2b3aebdb99cb9acbdf2bbb3aa">[email protected]</span></a>.
    3. Fax: (404) 562-9140.
    4. Mail: ``EPA-R04-OAR-2009-0426,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2009-0426. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning 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 to 4:30, 
excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9140. Ms. Ward can also be reached via electronic mail at 
<a href="/cdn-cgi/l/email-protection#89fee8fbeda7e7e8eae6fafde8c9ecf9e8a7eee6ff"><span class="__cf_email__" data-cfemail="f186908395df9f90929e828590b1948190df969e87">[email protected]</span></a>.

Table of Contents

I. Background
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's analysis of how Kentucky addressed the elements 
of Sections 110(a)(1) and (2) ``infrastructure'' provisions?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour

[[Page 14627]]

average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (see 62 FR 
38856). Pursuant to section 110(a)(1) of the CAA, states are required 
to submit SIPs meeting the requirements of section 110(a)(2) within 
three years after promulgation of a new or revised NAAQS. Sections 
110(a)(1) and (2) require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance of the NAAQS. States were required to submit 
such SIPs for the 1997 8-hour ozone NAAQS to EPA no later than June 
2000. However, intervening litigation over the 1997 8-hour ozone NAAQS 
created uncertainty about how to proceed and many states did not 
provide the required ``infrastructure'' SIP submission for these newly 
promulgated NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS. 
EPA entered into a consent decree with Earthjustice which required EPA, 
among other things, to complete a Federal Register notice announcing 
EPA's determinations pursuant to section 110(k)(1)(B) as to whether 
each state had made complete submissions to meet the requirements of 
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. 
Subsequently, EPA received an extension of the date to complete this 
Federal Register notice until March 17, 2008, based upon agreement to 
make the findings with respect to submissions made by January 7, 2008. 
In accordance with the consent decree, EPA made completeness findings 
for each state based upon what the Agency received from each state as 
of January 7, 2008.
    On March 27, 2008, EPA published a final rulemaking entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans; 
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or 
failed to submit a complete SIP that provided the basic program 
elements of section 110(a)(2) necessary to implement the 1997 8-hour 
ozone NAAQS. See 73 FR 16205. For those states that did receive 
findings, the findings of failure to submit for all or a portion of a 
state's implementation plan established a 24-month deadline for EPA to 
promulgate a Federal Implementation Plan (FIP) to address the 
outstanding SIP elements unless, prior to that time, the affected 
states submitted, and EPA approved, the required SIPs.
    The findings that all or portions of a state's submission are 
complete establish a 12-month deadline for EPA to take action upon the 
complete SIP elements in accordance with section 110(k). Kentucky's 
infrastructure submission was received by EPA on December 13, 2007, and 
was determined to be complete on March 27, 2008. Kentucky was among 
other states that did not receive findings of failure to submit because 
it provided a complete submission to EPA to address the infrastructure 
elements for the 1997 8-hour ozone NAAQS by March 1, 2008. Today's 
action is proposing to approve Kentucky's infrastructure submission for 
which EPA made the completeness determination on March 27, 2008. This 
action is not approving any specific rule, but rather proposing that 
Alabama's already approved SIP meets certain CAA requirements.

II. What elements are required under Sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous ozone 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM<INF>2.5</INF> National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title 1 of the CAA, and (2) submissions required by 
section 110(a)(2)(1) which pertain to the nonattainment planning 
requirements of part D, Title 1 of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(1) or the nonattainment planning requirements of 
110(a)(2)(C).
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    <bullet> 110(a)(2)(A): Emission limits and other control measures.
    <bullet> 110(a)(2)(B): Ambient air quality monitoring/data system.
    <bullet> 110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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    <bullet> 110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
Kentucky consistent with the Clean Air Interstate Rule (CAIR). On 
December 23, 2008, CAIR was remanded by the DC Circuit Court of 
Appeals, without vacatur, back to EPA. See North Carolina v. EPA, 
531 F.3d 896 (DC Cir. 2008). Prior to this remand, EPA took final 
action to approve Kentucky's SIP revision, which was submitted to 
comply with CAIR. See 72 FR 56623 (October 4, 2007). In so doing, 
Kentucky's CAIR SIP revision addressed the interstate transport 
provisions in Section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
NAAQS. In response to the remand of CAIR, EPA has since proposed a 
new rule to address the interstate transport of NO<INF>X</INF> and 
SO<INF>X</INF> in the eastern United States. See 75 FR 45210 (Aug. 
2, 2010) (``the Transport Rule''). However, because this rule has 
yet to be finalized, EPA's action on element 110(a)(2)(D)(i) will be 
addressed in a separate action.
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    <bullet> 110(a)(2)(E): Adequate resources.
    <bullet> 110(a)(2)(F): Stationary source monitoring system.
    <bullet> 110(a)(2)(G): Emergency power.
    <bullet> 110(a)(2)(H): Future SIP revisions.
    <bullet> 110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM<INF>2.5</INF> National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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    <bullet> 110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
    <bullet> 110(a)(2)(K): Air quality modeling/data.

[[Page 14628]]

    <bullet> 110(a)(2)(L): Permitting fees.
    <bullet> 110(a)(2)(M): Consultation/participation by affected local 
entities.

III. What is EPA's analysis of how Kentucky addressed the elements of 
Sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Kentucky's infrastructure submission addresses the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Kentucky's infrastructure submission provides an overview of the 
provisions of the Kentucky Air Regulations relevant to air quality 
control regulations. The regulations described below have been 
federally approved in the Kentucky SIP and include enforceable emission 
limitations and other control measures. Chapter 50--Division for Air 
Quality; General Administrative Procedures of the Kentucky Air 
Regulations generally authorizes the Kentucky Environmental and Public 
Protection Cabinet to adopt rules for the control of air pollution, 
including those necessary to obtain EPA approval under section 110 of 
the CAA. The most recent federally approved revision of this chapter 
was on April 21, 2010 (75 FR 20780). Chapter 51--Attainment and 
Maintenance of the National Ambient Air Quality Standards also includes 
references to rules adopted by Kentucky to control air pollution, 
including ozone precursors. The most recent federally approved revision 
of Chapter 51 was on April 21, 2010 (75 FR 20780). EPA has made the 
preliminary determination that the provisions contained in these 
chapters and Kentucky's practices are adequate to protect the 1997 8-
hour ozone NAAQS in the Commonwealth.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during 
startup, shutdown, or malfunction (SSM) of operations at a facility. 
EPA believes that a number of states have SSM provisions which are 
contrary to the CAA and existing EPA guidance, ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown'' (September 20, 1999), and the Agency plans to address 
such state regulations in the future. In the meantime, EPA encourages 
any state having deficient SSM provisions to take steps to correct them 
as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: 
Kentucky's infrastructure submission provides information in Chapter 
50:050--Monitoring, with regard to the organization and structure of 
the monitoring program that includes the local air quality programs. 
These entities collect air monitoring data, quality assure the results 
and report the data. The most recent federally approved revision of 
this chapter was on July 12, 1982 (47 FR 30059). Chapter 51:010--
Attainment status designations includes information indicating 
Kentucky's ozone monitor locations. The most recent federally approved 
revision of this chapter was on July 24, 1998 (63 FR 39739). Annually, 
EPA approves the ambient air monitoring network plan for the state 
agencies. On June 30, 2010, the Commonwealth of Kentucky submitted its 
plan to EPA, which also included the Louisville-Jefferson County local 
monitoring program. On October 8, 2010, EPA approved Kentucky's 
monitoring network plan. Kentucky's approved monitoring network plan 
can be accessed at http://www.regulations.gov using Docket ID No. EPA-
R04-OAR-2009-0426. EPA has made the preliminary determination that 
Kentucky's SIP and practices are adequate for the ambient air quality 
monitoring and data system related to the 1997 8-hour ozone NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: In Chapter 51:052--Review of 
new sources in or impacting upon nonattainment areas of Kentucky's SIP, 
a description of the compliance activities of the Commonwealth's 
regional field offices and the one local agency in Jefferson County is 
included. The most recent federally approved revision of this chapter 
was on July 11, 2006 (71 FR 38990). It also includes a description of 
the Commonwealth's statutory authority to enforce regulations relating 
to attainment and maintenance of the 1997 8-hour ozone NAAQS. 
Additionally, Kentucky submitted a SIP revision on February 4, 2010, 
which addresses the Ozone Implementation New Source Review (NSR) Update 
requirements to include nitrogen oxides (NO<INF>X</INF>) as an ozone 
precursor for permitting purposes for prevention of significant 
deterioration (PSD) and nonattainment NSR. Specifically, the Ozone 
Implementation NSR Update requirements included changes to major source 
thresholds for sources in certain classes of nonattainment areas, 
changes to offset ratios for marginal, moderate, serious, severe, and 
extreme ozone nonattainment areas, provisions addressing offset 
requirements for facilities that shut down or curtail operation, and a 
requirement stating that NO<INF>X</INF> emissions are ozone precursors. 
EPA published a final action approving Kentucky's revisions which 
incorporate NO<INF>X</INF> as an ozone precursor on September 15, 2010 
(75 FR 55988). Chapter 52:030--Federally enforceable permits for non-
major sources describes how the Commonwealth's construction permits 
program reviews proposed new major and minor sources of volatile 
organic compounds (VOCs) and NO<INF>X</INF> for compliance with the 8-
hour ozone NAAQS.
    EPA published a final action revising Kentucky's greenhouse gas 
(GHG) regulations on December 29, 2010 (75 FR 81868). The revisions 
include two significant changes impacting the regulation of GHGs under 
Kentucky's NSR/PSD program; (1) provides the Commonwealth with 
authority to issue PSD permits governing GHGs, and (2) establishes 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to Kentucky's PSD 
permitting requirements for its GHG emissions. EPA has made the 
preliminary determination that Kentucky's SIP and practices are 
adequate for program enforcement of control measures including review 
of proposed new sources related to the 1997 8-hour ozone NAAQS.
    In this action, EPA is proposing to approve Kentucky's 
infrastructure SIP for the 8-hour ozone NAAQS with respect to the 
general requirement in section 110(a)(2)(C) to include a program in the 
SIP that regulates the modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved. EPA is not 
proposing to approve or disapprove the state's existing minor NSR 
program itself to the extent that it is inconsistent with EPA's 
regulations governing this program. EPA believes that a number of 
states may have minor NSR provisions that are contrary to the existing 
EPA regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program.

[[Page 14629]]

The statutory requirements of section 110(a)(2)(C) provide for 
considerable flexibility in designing minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the states an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
    EPA has made the preliminary determination that Kentucky's SIP and 
practices are adequate for program enforcement of control measures 
including review of proposed new sources related to the 1997 8-hour 
ozone NAAQS.
    4. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: In Chapter 51:017--Prevention of significant deterioration 
of air quality, Kentucky outlines how it will notify neighboring states 
of potential impacts from new or modified sources. Kentucky does not 
have any pending obligation under section 115 and 126. Additionally, it 
has federally approved regulations in its SIP that satisfy the 
requirements for the NO<INF>X</INF> SIP Call. See 67 FR 17624 (April 
11, 2002). EPA has made the preliminary determination that Kentucky's 
SIP and practices are adequate for insuring compliance with the 
applicable requirements relating to interstate and international 
pollution abatement for the 1997 8-hour ozone NAAQS.
    5. 110(a)(2)(E) Adequate resources: The Kentucky DAQ is responsible 
for adopting air quality rules, revising SIPs, developing and tracking 
the budget, establishing the title V fees, and other planning needs. 
Additionally, Kentucky DAQ coordinates agreements with the local air 
pollution control program for Jefferson County, the Louisville Metro 
Air Pollution Control District. Annually, states update these grant 
commitments based on current SIP requirements, air quality planning and 
applicable requirements related NAAQS, including the 1997 8-hour ozone 
NAAQS. On May 6, 2010, EPA submitted a letter to the Commonwealth 
outlining 105 grant commitments and current status of those commitments 
for fiscal year 2009. The letter EPA submitted to Kentucky can be 
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2009-0426. There were no outstanding issues, therefore the 
Commonwealth's grants were finalized and closed out. EPA has made the 
preliminary determination that Kentucky has adequate resources for 
implementation of the 1997 8-hour ozone NAAQS.
    6. 110(a)(2)(F) Stationary source monitoring system: Kentucky's 
infrastructure submission describes how the major source and minor 
source emission inventory programs collect emission data throughout the 
Commonwealth (including Jefferson County) and ensure the quality of 
data. These programs generate data for ozone precursors (VOCs and 
NO<INF>X</INF>) and summarize emissions from point, area, mobile, and 
biogenic (natural) sources. Kentucky DAQ uses these data to track 
progress towards maintaining the NAAQS, develop control and maintenance 
strategies, identify sources and general emission levels, and determine 
compliance with emission regulations and additional EPA requirements. 
This is outlined in Chapter 50:050--Monitoring of the Kentucky Air 
Regulations.
    Additionally, the National Emissions Inventory (NEI) is EPA's 
central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory System 
(EIS). States report emissions data for the six criteria pollutants and 
the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Kentucky made its latest update to the NEI on 
February 17, 2011. EPA compiles the emissions data, supplementing it 
where necessary, and releases it to the general public through the Web 
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the 
preliminary determination that Kentucky's SIP and practices are 
adequate for the stationary source monitoring systems related to the 
1997 8-hour ozone NAAQS.
    7. 110(a)(2)(G) Emergency power: Kentucky's infrastructure 
submission provides an overview of the Kentucky Air Regulations, 
specifically Chapter 55--Emergency Episodes which identifies air 
pollution emergency episodes and preplanned abatement strategies. The 
episode criteria specified in this chapter for ozone are based on a 1-
hour average ozone level at a monitoring site. These criteria have 
previously been approved by EPA. EPA has made the preliminary 
determination that these criteria are adequate to address ozone 
emergency episodes for the 1997 8-hour ozone NAAQS. As a result, EPA 
has made the preliminary determination that Kentucky's SIP and 
practices are adequate for emergency powers related to the 1997 8-hour 
ozone NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: As previously discussed, 
Kentucky's DAQ is responsible for adopting air quality rules and 
revising SIPs as needed to attain or maintain the NAAQS . Kentucky has 
the ability and authority to respond to calls for SIP revisions, and 
has provided a number of SIP revisions over the years for 
implementation of the NAAQS. Specific to the 1997 8-hour ozone NAAQS, 
Kentucky has provided the following submissions:
    <bullet> May 20, 2005, SIP Revision (EPA approval, see 71 FR 4047, 
January 25, 2006)--Redesignation request and 175A maintenance plan for 
the Clarksville-Hopkinsville, TN-KY Area;
    <bullet> September 29, 2006, SIP revision (EPA approval, see 72 FR 
36601, July 5, 2007)--Redesignation request and 175A maintenance plan 
for the Louisville Area;
    <bullet> September 29, 2006, SIP revision (EPA approval, see 72 FR 
43172, August 3, 2007)--Redesignation request and 175A maintenance plan 
for the Huntington-Ashland, WV-KY Area;
    <bullet> May 27, 2008, SIP revision--110(a)(1) Maintenance plans 
for a portion of Greenup County, Lexington Area, Owensboro Area, 
Edmonson County and the Paducah Area (EPA approval of the Paducah Area, 
see 75 FR 52467, August 27, 2010);
    <bullet> January 29, 2010, SIP revision (EPA approval, see 75 FR 
47218, August 5, 2010)--Redesignation request and 175A maintenance plan 
for the Northern Kentucky portion of the Cincinnati Area; and
    <bullet> February 4, 2010, SIP revision (EPA approval, see 75 FR 
55988, September 15, 2010) NO<INF>X</INF> as a precursor.
    In all of Kentucky's 175A maintenance plans, the Commonwealth 
commits to provide additional SIP revisions for the 1997 8-hour ozone 
NAAQS pursuant to 175(A)(b), and also commits to provide additional SIP 
revisions to implement contingency measures should one of the areas 
that was redesignated to attainment violate the 1997 8-hour ozone 
NAAQS. EPA has made the preliminary determination that Kentucky's SIP 
and practices

[[Page 14630]]

adequately demonstrate a commitment to provide future SIP revisions 
related to the 1997 8-hour ozone NAAQS when necessary.
    9. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: Kentucky Air Regulations Chapter 50--Division for Air 
Quality; General Administrative Procedures of the Kentucky Air 
Regulations and Chapter 51--Attainment and Maintenance of the National 
Ambient Air Quality Standards provide for consultation with government 
officials whose jurisdictions might be affected by SIP development 
activities. More specifically, Kentucky adopted state-wide consultation 
procedures for the implementation of transportation conformity which 
includes the consideration of the development of mobile inventories for 
SIP development. Required partners covered by Kentucky's consultation 
procedures include federal, state and local transportation and air 
quality agency officials. EPA approved Kentucky's consultation 
procedures on September 15, 2010 (75 FR 55988). Additionally, DAQ 
submitted a regional haze plan which outlines its consultation 
practices with Federal Land Managers. EPA has made the preliminary 
determination that Kentucky's SIP and practices adequately demonstrate 
consultation with government officials related to the 1997 8-hour ozone 
NAAQS when necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: The 
Commonwealth's emergency episode provisions provide for notification to 
the public when the NAAQS, including the ozone NAAQS, are exceeded. 
This is also discussed above in 110(a)(2)(G). Additionally, the 
Commonwealth reports daily air quality information on its state Web 
site at: http://air.ky.gov/Pages/AirQualityIndexMonitoring.aspx to 
inform the public on the existing air quality within the Commonwealth. 
EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate the Commonwealth's ability to provide 
public notification related to the 1997 8-hour ozone NAAQS when 
necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: Kentucky 
demonstrates its authority to regulate new and modified sources of 
ozone precursors (VOCs and NO<INF>X</INF>) to assist in the protection 
of air quality in Kentucky Air Regulations Chapter 51:017--Prevention 
of significant deterioration of air quality. Kentucky submitted a SIP 
revision on February 4, 2010, which addresses the Ozone Implementation 
NSR Update requirements to include NO<INF>X</INF> as an ozone precursor 
for permitting purposes. Specifically, the Ozone Implementation NSR 
Update requirements included changes to major source thresholds for 
sources in certain classes of nonattainment areas, changes to offset 
ratios for marginal, moderate, serious, severe, and extreme ozone 
nonattainment areas, provisions addressing offset requirements for 
facilities that shut down or curtail operation, and a requirement 
stating that NO<INF>X</INF> emissions are ozone precursors. This SIP 
revision incorporates changes to Chapter 51:052--Review of new sources 
in or impacting upon nonattainment areas and Chapter 51:017--Prevention 
of Significant Deterioration of air quality. This action was proposed 
on April 1, 2010 (75 FR 16388). EPA published a final action approving 
Kentucky's revisions to incorporate changes to Chapter 51:052 and 
Chapter 51:017. September 15, 2010 (75 FR 55988).
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under Part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS; however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM<INF>2.5</INF> NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. Kentucky has submitted a SIP revision for approval to satisfy the 
requirements of the CAA Section 169A, and the regional haze and best 
available retrofit technology rules contained in 40 CFR 51.308. This 
SIP revision is currently under review and will be acted on in a 
separate action. EPA has made the preliminary determination that 
Kentucky's SIP and practices adequately demonstrate the Commonwealth's 
ability to implement PSD programs and to provide for visibility 
protection related to the 1997 8-hour ozone NAAQS when necessary.
    12. 110(a)(2)(K) Air quality and modeling/data: Kentucky conducts 
air quality modeling and reports the results of such modeling to EPA, 
as set forth in Kentucky Air Regulations Chapter 50:040--Air quality 
models. This regulation shows that ambient ozone monitoring is used, in 
conjunction with pre- and post-construction ambient air monitoring, to 
track local and regional scale changes in ozone concentrations. 
Additionally, Kentucky supports a regional effort to coordinate the 
development of emissions inventories and conduct regional modeling for 
several NAAQS, including the 1997 8-hour ozone NAAQS, for the 
Southeastern states. Taken as a whole, the Commonwealth's air quality 
regulations demonstrate that DAQ has the authority to provide relevant 
data for the purpose of predicting the effect on ambient air quality of 
the 8-hour ozone NAAQS. EPA has made the preliminary determination that 
Kentucky's SIP and practices adequately demonstrate the Commonwealth's 
ability to provide for air quality and modeling, along with analysis of 
the associated data, related to the 1997 8-hour ozone NAAQS when 
necessary.
    13. 110(a)(2)(L) Permitting fees: Kentucky addresses the review of 
construction permits as previously discussed in 110(a)(2)(C) above. 
Permitting fees are collected through the Commonwealth's title V fees 
program, which has been federally approved. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
provide for permitting fees related to the 1997 8-hour ozone NAAQS when 
necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local 
entities: The Kentucky DAQ coordinates with local governments affected 
by the SIP. More specifically, Kentucky adopted state-wide consultation 
procedures for the implementation of transportation conformity which 
includes the consideration of the development of mobile inventories for 
SIP development and the requirements that link transportation planning 
and air quality planning in nonattainment and maintenance areas. EPA 
approved these procedures in Chapter 50:066 Conformity of 
transportation plans, programs, and projects (Amendment) on April 21, 
2010 (75 FR 20180). Required partners covered by Kentucky's 
consultation procedures include federal, state and local transportation 
and air quality agency officials. The state and local transportation 
agency officials are most directly impacted by transportation 
conformity requirements and are required to provide public involvement 
for their activities including the analysis of how the Commonwealth 
meets transportation conformity requirements. Additionally, Chapter 
65--Mobile Source-Related Emissions also discusses consultation related 
activities specifically related to mobile sources. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
demonstrate consultation by affected

[[Page 14631]]

local entities related to the 1997 8-hour ozone NAAQS when necessary.

IV. Proposed Action

    As described above, the Commonwealth of Kentucky has addressed the 
elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to 
EPA's October 2, 2007, guidance to ensure that the 1997 8-hour ozone 
NAAQS are implemented, enforced, and maintained in Kentucky. EPA is 
proposing to approve Kentucky's infrastructure submission for the 1997 
8-hour ozone NAAQS because this submission is consistent with section 
110 of the CAA.

V. 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. 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. Accordingly, this 
proposed 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 proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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).
    In addition, this proposed rule does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the Commonwealth, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: March 7, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-6260 Filed 3-16-11; 8:45 am]
BILLING CODE 6560-50-P


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