Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Proposed Rules 3867 

contacting the Grants and Contracts 

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Dated: January 14, 2013. 

Michael Yudin, 

Acting Assistant Secretary for Special 

Education and Rehabilitative Services. 

[FR Doc. 2013–00939 Filed 1–16–13; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0700; FRL–9771–5] 

Approval and Promulgation of 

Implementation Plans; Kentucky; 

110(a)(1) and (2) Infrastructure 

Requirements for the 2008 8-Hour 

Ozone National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

in part, conditionally approve in part, 

and disapprove in part, the July 17, 

2012, State Implementation Plan (SIP) 

submission provided by the 

Commonwealth of Kentucky, through 

the Division of Air Quality (DAQ) of the 

Kentucky Energy and Environment 

Cabinet. Kentucky DAQ submitted the 

July 17, 2012, SIP submission as a 

replacement to its original September 8, 

2009, SIP submission. Specifically, this 

proposal pertains to the Clean Air Act 

(CAA or Act) requirements for the 2008 

8-hour ozone national ambient air 

quality standards (NAAQS) 

infrastructure SIP. The CAA requires 

that each state adopt and submit a SIP 

for the implementation, maintenance, 

and enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. Kentucky DAQ 

made a SIP submission demonstrating 

that the Kentucky SIP contains 

provisions that ensure the 2008 8-hour 

ozone NAAQS are implemented, 

enforced, and maintained in the 

Commonwealth (hereafter referred to as 

‘‘infrastructure submission’’). EPA is 

now proposing three related actions on 

Kentucky DAQ’s infrastructure SIP 

submission. First, EPA is proposing to 

determine that Kentucky DAQ’s 

infrastructure submission, provided to 

EPA on July 17, 2012, satisfies certain 

required infrastructure elements for the 

2008 8-hour ozone NAAQS. Second, 

with respect to the infrastructure 

requirements related to specific 

prevention of significant deterioration 

(PSD) requirements, EPA is proposing to 

approve, in part and conditionally 

approve in part, the infrastructure SIP 

submission based on a December 19, 

2012, Kentucky DAQ commitment to 

submit specific enforceable measures for 

approval into the SIP to address specific 

PSD program deficiencies. Third, EPA is 

proposing to disapprove Kentucky 

DAQ’s infrastructure SIP submission 

with respect to certain interstate 

transport requirements for the 2008 8- 

hour ozone NAAQS because the 

submission does not address the 

statutory provisions with respect to the 

relevant NAAQS and thus does not 

satisfy the criteria for approval. The 

CAA requires EPA to act on this portion 

of the SIP submission even though 

under a recent court decision (which is 

not yet final as EPA has requested 

rehearing), Kentucky DAQ was not yet 

required to submit a SIP submission to 

address these interstate transport 

requirements. Moreover, under that 

same court decision, this disapproval 

does not trigger an obligation for EPA to 

promulgate a Federal Implementation 

plan (FIP) to address these interstate 

transport requirements. 

DATES: Written comments must be 

received on or before February 7, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0700, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9140. 

4. Mail: ‘‘EPA–R04–OAR–2012– 

0700,’’ 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–2012– 

0700. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

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 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

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 email comment directly 

to EPA without going through 

www.regulations.gov, your email 

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 


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3868 Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Proposed Rules 

1EPA understands that Kentucky believed, based 

upon the 2006 24-hour PM2.5 Infrastructure 

Guidance (the most current infrastructure guidance 

at the time), it did not need to hold a public hearing 

for its original letter certification for the 2008 8- 

hour ozone NAAQS infrastructure SIP (dated 

September 8, 2009). EPA further understands that, 

following the publication of EPA’s Infrastructure 

Guidance for the 2008 Lead NAAQS, Kentucky 

decided to undergo public notice and comment for 

its 2008 8-hour ozone NAAQS infrastructure SIP. 

Following that public review and comment, on July 

17, 2012, Kentucky withdrew its original 

infrastructure submission, and provided EPA with 

a new, publically noticed infrastructure submission. 

2Section 110(a)(2)(D)(i) includes four 

requirements referred to as prongs 1 through 4. 

Prongs 1 and 2 appear in section 110(a)(2)(D)(i)(I); 

prongs 3 and 4 appear in section 110(a)(2)(D)(i)(II). 

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 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 

ward.nacosta@epa.gov. 

Table of Contents 

I. Background and Overview 

II. What elements are required under sections 

110(a)(1) and (2)? 

III. Scope of Infrastructure SIPs 

IV. What is EPA’s analysis of how the 

Commonwealth of Kentucky addressed 

the elements of sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background and Overview 

On March 27, 2008, EPA promulgated 

a revised NAAQS for ozone based on 

8-hour average concentrations. EPA 

revised the level of the 8-hour ozone 

NAAQS to 0.075 parts per million 

(ppm). See 77 FR 16436. Pursuant to 

section 110(a)(1) of the CAA, states are 

required to submit SIPs 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. States were required to 

submit such SIPs for the 2008 8-hour 

ozone NAAQS to EPA no later than 

March 2011. 

Midwest Environmental Defense and 

Sierra Club filed a complaint in federal 

court on November 20, 2011, alleging 

EPA’s failure to issue findings of failure 

to submit related to the infrastructure 

requirements for the 2008 8-hour ozone 

NAAQS. On December 13, 2011, and 

March 6, 2012, Midwest Environmental 

Defense and Sierra Club filed amended 

complaints alleging that EPA had failed 

to promulgate PSD regulations required 

with respect to the 2008 8-hour ozone 

NAAQS within two years, alleging that 

EPA had failed to approve or disapprove 

SIP submittals, and removing claims 

regarding states that had by that time 

submitted infrastructure SIPs for the 

2008 8-hour ozone NAAQS, 

respectively. Kentucky was among the 

states named in the November 2011 

complaint, and in the December 2011, 

and March 2012, amended complaints. 

Specifically, the plaintiffs claimed that 

EPA had failed to perform a mandatory 

duty under section 110(k) to take action 

upon Kentucky’s 2008 8-hour ozone 

infrastructure SIP addressing sections 

110(a)(2)(A)–(H) and (J)–(M) by no later 

than March 8, 2011. 

Kentucky DAQ’s infrastructure 

submission for the 2008 8-hour ozone 

NAAQS was originally received by EPA 

on September 8, 2009. Kentucky DAQ’s 

September 8, 2009, SIP revision became 

complete by operation of law on March 

8, 2010, and thus under CAA section 

110(k)(2) EPA was required to take 

action on this SIP revision no later than 

March 8, 2011. On July 17, 2012, 

Kentucky DAQ withdrew its September 

8, 2009, submission and concurrently 

provided a new submission to satisfy 

the infrastructure requirements for the 

2008 8-hour ozone NAAQS.1

On December 7, 2012, EPA was 

ordered by the U.S. District Court for the 

Northern District of California (hereafter 

also referred to as the ‘‘district court’’) 

to ‘‘sign a final rule or rules taking final 

action on the 2008 ozone NAAQS 

Infrastructure SIP submittals from 

Kentucky (submittal dated 9/8/2009, 

revised 7/17/2012) * * * by no later 

than 3/4/2013.’’ EPA does not agree that 

the July 17, 2012, submission ‘‘revised’’ 

the earlier September 8, 2009, 

infrastructure submission. Instead, 

according to the transmittal letter from 

Kentucky DAQ, the latter submission 

was a new infrastructure submission 

sent to EPA to completely replace the 

earlier September 8, 2009, submission 

which Kentucky DAQ withdrew. The 

July 17, 2012, infrastructure submission 

and accompanying transmittal letter are 

available in the docket for today’s 

action. Although Kentucky DAQ clearly 

stated its intention to replace the 

original September 8, 2009, submission 

with the July 17, 2012, submission, EPA 

interprets the district court order as 

requiring EPA to act on both 

infrastructure SIP submittals and to treat 

the July 17, 2012, submission merely as 

a revision to the original September 8, 

2009, submission, and EPA is proposing 

to do so in this notice. EPA views the 

actions proposed today as steps toward 

satisfying the requirements of the 

December 7, 2012, district court order 

regarding Kentucky DAQ’s 

infrastructure submission. 

On December 19, 2012, Kentucky 

DAQ submitted a request for conditional 

approval of the infrastructure SIP 

submission with respect to the PSD 

requirements of sections 110(a)(2)(C), 

110(a)(2)(D)(i)(II) (hereafter referred to 

as prong 3 of section 110(a)(2)(D)(i)),2

and 110(a)(2)(J) to address deficiencies 

in the infrastructure SIP concerning the 

fine particulate matter (PM2.5 ) PSD 

requirements for these elements. 

Today’s action proposes conditional 

approval of the Commonwealth’s 

infrastructure SIP submission, 

consistent with section 110(k)(4) of the 

CAA, for the portions of the submission 

related to PSD requirements based upon 

a commitment by Kentucky DAQ to 

submit the necessary SIP revisions with 

specific enforceable measures to address 

PM2.5 PSD requirements. EPA notes that 

these requirements are part of the 

structural requirements for the PSD 

program that are relevant for purposes 

of infrastructure SIPs for the 2008 8- 

hour ozone NAAQS. 

Kentucky DAQ’s July 17, 2012, 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS also 

addressed CAA section 110(a)(2)(D)(i)(I), 

which requires that SIPs contain 

adequate provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment 

maintenance of the NAAQS in another 


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Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Proposed Rules 3869 

3Two 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 I of the CAA; and (2) 

submissions required by section 110(a)(2)(I) which 

pertain to the nonattainment planning requirements 

of part D, Title I of the CAA. Today’s proposed 

rulemaking does not address infrastructure 

elements related to section 110(a)(2)(I) or the 

nonattainment planning requirements of 

110(a)(2)(C). 

4This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

5As explained above, EPA at this time is not 

treating the 110(a)(2)(D)(i)(I) SIP submission from 

Kentucky DAQ as a required SIP submission. The 

portions of the SIP submission relating to 

110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), in contrast, 

are required, and are being acted upon by EPA in 

today’s proposed rulemaking. 

state. In its submission, Kentucky DAQ 

asserts that section 110(a)(2)(D)(i)(I) is 

satisfied by the Commonwealth’s 

previously approved SIP revision to 

meet the Clean Air Interstate Rule 

(CAIR) requirements. 

CAIR was promulgated by EPA in 

2005 to address, for certain states, the 

requirements of CAA section 

110(a)(2)(D)(i)(I) with respect to the 

1997 8-hour ozone and 1997 annual 

PM2.5 NAAQS. See 70 FR 25162. In 

2008, the U.S. Court of Appeals for the 

D.C. Circuit granted several petitions for 

review of CAIR; however, the D.C. 

Circuit ultimately decided to leave CAIR 

in place to preserve the environmental 

values of the rule while EPA 

promulgated a new rule to replace it. 

North Carolina v. EPA, 531 F.3d 896 

(D.C. Cir. 2008), as modified on 

rehearing, 550 F.3d 1176 (D.C. Cir. 

2008). In 2011, EPA promulgated the 

Cross-State Air Pollution Rule (CSAPR) 

to replace CAIR and to address, for 

certain states, the requirements of 

110(a)(2)(D)(i)(I) with respect to the 

1997 8-hour ozone, the 1997 annual 

PM2.5 NAAQS and the 2006 24-hour 

PM2.5 NAAQS. See 76 FR 48208. Neither 

CAIR nor CSAPR addressed the 

requirements of 110(a)(2)(D)(i)(I) with 

respect to the 2008 8-hour ozone 

NAAQS. 

In August of 2012, a panel of the U.S. 

Court of Appeals for the D.C. Circuit 

issued a decision to vacate CSAPR. See 

EME Homer City Generation, L.P. v. 

EPA, 696 F.3d 7 (D.C. Cir. 2012). This 

decision addressed the requirements of 

110(a)(2)(D)(i)(I). The EME Homer City 

panel decision vacated CSAPR and 

ordered EPA to continue implementing 

CAIR. The D.C. Circuit has not yet 

issued the final mandate in EME Homer 

City as EPA (as well as several 

interveners) petitioned for rehearing en 

banc, asking the full court to review the 

decision. Nonetheless, while rehearing 

proceedings are pending, EPA intends 

to act in accordance with the panel 

opinion in EME Homer City opinion. 

Several aspects of the EME Homer 

City opinion are potentially relevant to 

this proposal. First, the opinion 

concludes that a section 

110(a)(2)(D)(i)(I) SIP submission cannot 

be considered a ‘‘required’’ SIP 

submission until EPA has defined a 

state’s obligations pursuant to that 

section. See EME Homer City, 696 F.3d 

at 32 (‘‘A SIP logically cannot be 

deemed to lack a ‘required submission’ 

or deemed to be deficient for failure to 

meet the good neighbor obligation 

before EPA quantifies the good neighbor 

obligation.’’) EPA historically has 

interpreted section 110(a)(1) of the CAA 

as establishing the required submittal 

date for SIPs addressing all of the 

‘‘interstate transport’’ requirements in 

section 110(a)(2)(D), including the 

provisions in section 110(a)(2)(D)(i)(I) 

regarding significant contribution to 

nonattainment and interference with 

maintenance. However, at this time in 

light of the EME Homer City opinion, 

EPA is not treating the section 

110(a)(2)(D)(i)(I) SIP submission from 

Kentucky DAQ as a required SIP 

submission. Second, the EME Homer 

City opinion provides that EPA does not 

have authority to promulgate a FIP to 

address the requirements of section 

110(a)(a)(2)(D)(i)(I) until EPA has 

identified emissions in a state that 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in another 

state and given the state an opportunity 

to submit a SIP to address those 

emissions. EME Homer City, 696 F.3d at 

28. 

As explained in greater detail below, 

in this action, EPA is proposing to 

disapprove Kentucky DAQ’s SIP 

submission as it relates to section 

110(a)(2)(D)(i)(I) because the submission 

does not address the statutory 

provisions with respect to the relevant 

NAAQS and thus does not satisfy the 

criteria for approval presented in CAA 

section 110(k)(3). EPA must act on the 

110(a)(2)(D)(i)(I) SIP submission from 

the Commonwealth because, even if the 

submission is not considered to be 

‘‘required,’’ section 110(k)(2) of the CAA 

requires EPA to act on all SIP 

submissions. However, unless the EME 

Homer City decision is reversed or 

otherwise modified by the D.C. Circuit, 

any final disapproval would not obligate 

the Commonwealth to take any action or 

make a new SIP submission. Nor would 

it trigger an obligation for EPA to 

promulgate a FIP to address these 

interstate transport requirements. 

Kentucky DAQ’s July 17, 2012, 2008 

8-hour infrastructure submission also 

addressed sections 110(a)(2)(A)–(B); 

(D)(i) prong 4;(E)–(H); other subelements of (J); and (K)–(M). Today, EPA 

is proposing to fully approve these 

elements of the Commonwealth’s 

submission for the reasons explained 

below. 

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 2008 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 the 

1997 8-hour 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 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. The requirements that are the 

subject of this proposed rulemaking are 

summarized below.3

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures.4

• 110(a)(2)(D): Interstate transport.5

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

• 110(a)(2)(H): Future SIP revisions. 


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6As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.6

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/ 

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

III. Scope of Infrastructure SIPs 

EPA notes that this rulemaking does 

not address four substantive issues that 

are not integral to the Commonwealth’s 

infrastructure SIP submission. These 

four issues are: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction at sources (SSM), that may 

be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (director’s discretion); (iii) 

existing provisions for minor source 

new source review (NSR) programs that 

may be inconsistent with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (minor source NSR); and, (iv) 

existing provisions for PSD programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (NSR Reform). 

Instead, EPA has indicated that it has 

other authority to address any such 

existing SIP defects in other 

rulemakings, as appropriate. A detailed 

rationale for why these four substantive 

issues are not part of the scope of 

infrastructure SIP rulemakings can be 

found in EPA’s August 3, 2012, 

proposed rule entitled, ‘‘Approval and 

Promulgation of Implementation Plans; 

Kentucky; 110(a)(1) and (2) 

Infrastructure Requirements for the 1997 

annual and 2006 24-hour Fine 

Particulate Matter National Ambient Air 

Quality Standards’’ in the section 

entitled, ‘‘Scope of Infrastructure SIPs’’ 

(See 77 FR 46352). 

IV. What is EPA’s analysis of how the 

Commonwealth of Kentucky addressed 

the elements of sections 110(a)(1) and 

(2) ‘‘infrastructure’’ provisions? 

Kentucky DAQ’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 

DAQ’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 Energy and 

Environment Cabinet to adopt rules for 

the control of air pollution, including 

those necessary to obtain EPA approval 

under section 110 of the CAA and 

details the authority and means with 

which DAQ can require testing and 

emissions verification. Chapter 51— 

Attainment and Maintenance of the 

National Ambient Air Quality 

Standards, also includes references to 

rules adopted by Kentucky DAQ to 

control air pollution, including ozone 

precursors. Chapter 53—Ambient Air 

Quality Standards, serves to establish 

the requirements for the prevention, 

abatement, and control of air pollution. 

EPA has made the preliminary 

determination that the provisions 

contained in these chapters and the 

Commonwealth’s practices are adequate 

to demonstrate enforceable emission 

limitations and other control measures 

for the 2008 8-hour ozone NAAQS in 

Kentucky. Accordingly, EPA is 

proposing to approve Kentucky DAQ’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(A). 

In this action, EPA is not proposing to 

approve or disapprove any existing state 

provisions with regard to excess 

emissions during 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: Chapter 

50:050—Monitoring, Chapter 51:010— 

Attainment status designations, and 

Chapter 53—Ambient Air Quality 

Standards, along with the 

Commonwealth’s Network Description 

and Ambient Air Monitoring Network 

Plan, provide for an ambient air quality 

monitoring network in Kentucky. 

Annually, EPA approves the ambient air 

monitoring network plan for the state 

agencies. On May 25, 2012, the 

Commonwealth of Kentucky submitted 

its plan to EPA, which also included the 

Louisville-Jefferson County local 

monitoring program. On June 29, 2012, 

EPA approved the Commonwealth’s 

monitoring network plan. The 

Commonwealth’s approved monitoring 

network plan can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0700. EPA 

has made the preliminary determination 

that the Commonwealth’s SIP and 

practices are adequate for the ambient 

air quality monitoring and data system 

related to the 2008 8-hour ozone 

NAAQS. Accordingly, EPA is proposing 

to approve Kentucky DAQ’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(B). 

3. 110(a)(2)(C) Program for 

enforcement of control measures 

including review of proposed new 

sources: Chapter 51—Attainment and 

Maintenance of the National Ambient 

Air Quality Standards, describes the 

permit requirements for new major 

sources or major modifications of 

existing sources in areas classified as 

attainment or unclassifiable under 

section 107(d)(1)(A)(ii) or (iii) of the 

CAA. These requirements are designed 

to ensure that sources in areas attaining 

the NAAQS at the time of designations 

prevent any significant deterioration in 

air quality. Chapter 51 also sets the 

permitting requirements for areas in or 

around nonattainment areas and a 

description of the Commonwealth’s 

statutory authority to enforce 

regulations relating to attainment and 


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7The December 19, 2012, commitment letter 

submitted to EPA by Kentucky DAQ can be 

accessed at www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0700. 

8The December 19, 2012, comment letter 

references Kentucky’s June 19, 2012, submittal to 

EPA of the proposed regulatory amendments that 

the Commonwealth will submit to meet the 

applicable requirements of the NSR PM2.5 Rule and 

PM2.5 PSD Increment-SILs-SMC Rule. Accordingly, 

EPA’s proposed conditional approval related to 

these requirements as they pertain to sections 

110(a)(2)(C) and (J), and prong 3 of section 

110(a)(2)(D)(i), is based upon the Commonwealth’s 

commitment to submit the specific enforceable 

provisions as described in the December 19, 2012, 

commitment letter. This letter references the June 

19, 2012, proposed regulatory amendments which 

Kentucky commits to incorporate into the SIP 

consistent with requirements of section 110(k)(4). 

The June 19, 2012, submittal is included in the 

docket for today’s proposed rulemaking. 

9EPA notes that pursuant to section 110(k)(4), a 

conditional approval is treated as a disapproval in 

the event that a State fails to comply with its 

commitment. Notification of this disapproval action 

in the Federal Register is not subject to public 

notice and comment. 

maintenance of the 2008 8-hour ozone 

NAAQS. 

At present, there are four SIP 

revisions that are relevant to EPA’s 

review of Kentucky DAQ’s 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS in 

connection with the current PSD-related 

infrastructure requirements. See 

sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J) of the 

CAA. The EPA regulations that require 

these SIP revisions are: (1) ‘‘Final Rule 

To Implement the 8-Hour Ozone 

National Ambient Air Quality 

Standard—Phase 2; Final Rule’’ 

(November 29, 2005, 70 FR 71612) 

(hereafter referred to as the ‘‘Phase II 

Rule’’); (2) ‘‘Prevention of Significant 

Deterioration and Title V Greenhouse 

Gas [GHG] Tailoring Rule; Final Rule’’ 

(June 3, 2010, 75 FR 31514) (hereafter 

referred to as the ‘‘GHG Tailoring 

Rule’’); (3) ‘‘Implementation of the New 

Source Review Program for Particulate 

Matter Less Than 2.5 Micrometers; Final 

Rule’’ (May 16, 2008, 73 FR 28321) 

(hereafter referred to as the ‘‘NSR PM2.5

Rule’’); and, (4) ‘‘Final Rule on the 

Prevention of Significant Deterioration 

(PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant monitoring Concentration 

(SMC); Final Rule’’ (October 20, 2010, 

75 FR 64864) (hereafter referred to as 

the‘‘PM2.5 PSD Increment-SILs-SMC 

Rule (only as it relates to PM2.5

Increments)’’). 

The first revision to the Kentucky SIP 

(Phase II Rule revisions) was submitted 

by Kentucky DAQ on February 4, 2010. 

Kentucky DAQ’s submittal addressed 

the structural PSD program revisions 

required by the Phase II Rule, including 

requirements to include nitrogen oxides 

(NOX) as an ozone precursor for 

permitting purposes for PSD and 

nonattainment NSR. EPA published a 

final action approving Kentucky DAQ’s 

revisions which incorporate NOX as an 

ozone precursor on September 15, 2010. 

See 75 FR 55988. Thus, EPA has 

preliminarily determined that the 

infrastructure SIP submission is 

approvable with respect to this issue. 

The second revision to the Kentucky 

SIP pertains to revisions to the PSD 

program promulgated in the GHG 

Tailoring Rule, submitted to EPA by 

Kentucky DAQ on December 13, 2010. 

EPA published a final action to approve 

revisions to Kentucky DAQ’s SIP related 

to GHG regulations on December 29, 

2010. See 75 FR 81868. The revisions 

include two significant changes 

impacting the regulation of GHGs under 

the Commonwealth’s NSR/PSD 

program: (1) They provide the 

Commonwealth with authority to issue 

PSD permits governing GHGs, and (2) 

they establish appropriate emission 

thresholds for determining which new 

stationary sources and modification 

projects become subject to Kentucky 

DAQ’s PSD permitting requirements for 

its GHG emissions. Thus, EPA has 

preliminarily determined that the 

infrastructure SIP submission is 

approvable with respect to this issue. 

The third revision to the Kentucky 

SIP pertains to the adoption of PSD and 

Nonattainment New Source Review 

(NNSR) requirements related to the 

implementation of the NSR PM2.5 Rule 

approved in EPA’s May 16, 2008, final 

rule. The fourth revision to the 

Kentucky SIP pertains to PM2.5 PSD 

Increment-SILs-SMC Rule approved in 

EPA’s October 20, 2010, final rule (only 

as it relates to PM2.5 Increments). 

Currently, Kentucky DAQ’s SIP does not 

contain provisions to address these 

structural PSD requirements and thus 

the infrastructure SIP submission is 

deficient with respect to these 

requirements. 

On December 19, 2012, however, 

Kentucky DAQ submitted a 

commitment letter to EPA requesting 

conditional approval of the 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS to address 

outstanding requirements related to the 

NSR PM2.5 Rule and PM2.5 PSD 

Increment-SILs-SMC Rule (only as it 

relates to PM2.5 Increments).7 In its 

December 19, 2012, letter, Kentucky 

DAQ described the specific rules that it 

is developing to address outstanding 

requirements related to the NSR PM2.5

Rule and PM2.5 PSD Increment-SILsSMC Rule (only as it relates to PM2.5

Increments), provided its intended 

schedule and process to address the 

requirements, and committed to adopt 

these specific enforceable provisions to 

address the requirements.8 Further, 

Kentucky DAQ has committed to 

submitting these SIP revisions to EPA 

for incorporation into the Kentucky SIP 

by no later than one year from the 

publication date of EPA’s final 

conditional approval action of the 

infrastructure SIP for this requirement. 

Failure by the Commonwealth to adopt 

these provisions and submit them to 

EPA for incorporation into the SIP 

within one year from the publication 

date of EPA’s final conditional approval 

action would result in this proposed 

conditional approval being treated as a 

disapproval. Should that occur, EPA 

would provide the public with notice of 

such a disapproval in the Federal 

Register.9 Based on Kentucky DAQ’s 

commitment, EPA is proposing to 

conditionally approve the 

Commonwealth’s infrastructure SIP 

submission as it relates to PSD 

requirements related to 110(a)(2)(C) in 

accordance with section 110(k)(4) of the 

Act. 

EPA has preliminarily determined 

that the Kentucky SIP meets the relevant 

PSD program requirements, with the 

exception of those SIP revisions 

described in the commitment letter. 

Accordingly, in this action EPA is 

proposing to approve the infrastructure 

SIP submission as meeting the 

applicable requirements of section 

110(a)(2)(C), but for the remaining 

narrow issues related to the NSR PM2.5

Rule and PM2.5 PSD Increment-SILsSMC Rule. In addition, EPA is 

proposing to conditionally approve 

Kentucky DAQ’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS with respect to these specific 

issues related to NSR PM2.5 Rule and 

PM2.5 PSD Increment-SILs-SMC Rule 

based upon the Commonwealth’s 

commitment letter. 

EPA is not proposing to approve or 

disapprove the Commonwealth’s 

existing minor NSR program itself to the 

extent that it is inconsistent with EPA’s 

regulations governing this program 

because this is not germane in the 

context of acting on an infrastructure 

SIP submission. 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. The 

statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 


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10Moreover, in its decision granting the petitions 

for review of CAIR, the D.C. Circuit held that 

compliance with CAIR did not constitute 

compliance with section 110(a)(2)(D)(i)(I) even for 

the NAAQS that were addressed by CAIR—namely 

the 1997 ozone and 1997 annual PM2.5 NAAQS. See 

North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 

2008). 

11See: (1) EPA’s approval of Kentucky’s PSD/NSR 

regulations which address the Ozone 

Implementation NSR Update requirements and (2) 

EPA’s approval of Kentucky’s PSD GHG Tailoring 

Rule revisions which addresses the thresholds for 

GHG permitting applicability in Kentucky. For 

additional detailed information on these 

requirements, see section 3 above. 

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 

2008 8-hour ozone NAAQS. 

4. 110(a)(2)(D)(i) and (ii) Interstate 

and International transport provisions: 

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 SIP submissions. 

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 interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). 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 

interfering with measures required to 

prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

insuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

EPA’s analysis of Kentucky DAQ’s 

infrastructure submission with regard to 

the requirements of 110(a)(2)(D) is as 

follows: 

110(a)(2)(D)(i)(I): With regard to 

section 110(a)(2)(D)(i)(I) (prongs 1 and 

2), EPA is proposing to disapprove 

Kentucky DAQ’s infrastructure 

submission for this subsection. In its 

submission, Kentucky DAQ provides 

that section 110(a)(2)(D)(i)(I) is met 

through the Commonwealth’s approved 

regulations to meet the Clean Air 

Interstate Rule (CAIR) requirements. 

However, CAIR was promulgated before 

the 2008 8-hour ozone NAAQS were 

promulgated, and CAIR did not, in any 

way, address interstate transport 

requirements related to the 2008 8-hour 

ozone NAAQS. The submission from 

Kentucky DAQ thus does not purport to 

address the requirements of section 

110(a)(2)(D)(i)(I) with respect to the 

relevant NAAQS. As such, it does not 

appear to be complete with respect to 

this element. Nonetheless as the 

submission has become complete by 

operation of law, EPA is obligated to act 

on it pursuant to CAA section 110(k)(2). 

Because the submission does not 

address the requirements with respect to 

the relevant NAAQS and relies 

exclusively on the CAIR—a rule that 

was promulgated to address the 

requirements of 110(a)(2)(D)(i)(I) with 

respect to earlier NAAQS and found 

insufficient to do so 10—EPA is 

proposing to disapprove the submission 

with regard to the requirements of 

110(a)(2)(D)(i)(I). 

If the opinion in EME Homer City is 

neither reversed nor modified as a result 

of the pending petitions for rehearing, 

disapproval of the Kentucky SIP 

submission as proposed herein will 

neither obligate the Commonwealth to 

make a new SIP submission nor trigger 

EPA’s obligation to promulgate a FIP to 

address the requirements of 

110(a)(2)(D)(i)(I) for Kentucky. The D.C. 

Circuit’s recent opinion in EME Homer 

City concluded that EPA cannot 

promulgate a FIP to address the 

requirements of 110(a)(2)(D)(i)(I) for a 

state until sometime after EPA has 

quantified the emissions that must be 

prohibited under that provision. See 

EME Homer City, 696 F.3d at 28 

(‘‘explaining that EPA must, after 

quantifying state’s obligations under 

section 110(a)(2)(D)(i)(I) give states an 

initial opportunity to implement the 

obligations through SIPs’’). For this 

reason, unless the EME Homer City 

opinion is reversed or modified, the 

disapproval proposed herein by itself 

will not trigger any FIP obligation under 

CAA section 110(c). Thus, EPA 

disapproval of the infrastructure SIP 

submission cannot be said to start a 

‘‘FIP clock’’—that is activation of the 

two year deadline for EPA to 

promulgate a FIP pursuant to CAA 

section 110(c). Moreover, and unless the 

portion of the EME Homer City opinion 

holding that 110(a)(2)(D)(i)(I) SIPs are 

not required SIP submissions until EPA 

defines state’s obligations pursuant to 

that section is reversed or otherwise 

modified, any final disapproval of the 

section 110(a)(2)(D)(i)(I) portion of the 

infrastructure SIP submittal will not 

require Kentucky DAQ to take any 

additional action related to the 

requirements of 110(a)(2)(D)(i)(I) for the 

2008 8-hour ozone NAAQS. 

110(a)(2)(D)(i)(II)—prong 3: With 

regard to prong 3 of section 

110(a)(2)(D)(i), this requirement may be 

met by the state’s confirmation in an 

infrastructure SIP submission that new 

major sources and major modifications 

in the state are subject to a PSD program 

meeting all the current structural 

requirements of part C of title I of the 

CAA or (if the state contains a 

nonattainment area for the relevant 

pollutant) to a NNSR program that 

implements the 2008 8-hour ozone 

NAAQS. As discussed in more detail 

with respect to section 110(a)(2)(C), 

Kentucky’s SIP contains provisions for 

the Commonwealth’s PSD program that 

reflect relevant SIP revisions most of the 

structural PSD requirements.11 There 

are, however, additional relevant PSD 

program revisions that EPA considers 

relevant to action on the infrastructure 

SIP submission for the 2008 8-hour 

ozone NAAQS. On December 19, 2012, 

Kentucky DAQ submitted a letter to 

EPA with a schedule and commitment 

to make the necessary SIP revisions to 

include specific enforceable provisions 

to address the deficiency in the 

infrastructure SIP submission with 

respect to the structural requirements 

for PSD programs required by the NSR 

PM2.5 Rule and the PM2.5 PSD 

Increment-SILs-SMC Rule. 

EPA has preliminarily determined 

that the Kentucky SIP meets the relevant 

PSD program requirements, but for 

those SIP revisions described in the 

December 19, 2012, commitment letter. 

Accordingly, in this action EPA is 

proposing to approve the infrastructure 

SIP submission as meeting the 

applicable requirements of prong 3 of 

section 110(a)(2)(D)(i), but for the 

remaining narrow issues related to the 

NSR PM2.5 Rule and PM2.5 PSD 

Increment-SILs-SMC Rule. In addition, 

based on the Commonwealth’s 

commitment, EPA is proposing to 

conditionally approve the 

Commonwealth’s SIP infrastructure 

submission with respect to prong 3 of 

section 110(a)(2)(D)(i) consistent with 

section 110(k)(4) of the Act. 

110(a)(2)(D)(i)(II)—prong 4: Prong 4 of 

section 110(a)(2)(D)(i) requires that SIPs 

include provisions prohibiting any 

source or other type of emissions 

activity in one state from interfering 


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12Under CAA sections 301(a) and 110(k)(6) and 

EPA’s long-standing guidance, a limited approval 

results in approval of the entire SIP submittal, even 

of those parts that are deficient and prevent EPA 

from granting a full approval of the SIP revision. 

Processing of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John Calcagni, 

Director, Air Quality Management Division, 

OAQPS, to Air Division Directors, EPA Regional 

Offices I–X, September 7, 1992, (1992 Calcagni 

Memorandum) located at http://www.epa.gov/ttn/ 

caaa/t1/memoranda/siproc.pdf. 

with measures to protect visibility in 

another state. In describing how its 

submission meets this requirement, the 

Commonwealth referred to EPAapproved provisions requiring electric 

generating units (EGUs) in Kentucky 

DAQ to comply with CAIR and to the 

limited approval and limited 

disapproval of Kentucky DAQ’s regional 

haze SIP. Although Kentucky DAQ’s 

regional haze SIP has not been fully 

approved, EPA believes that the 

infrastructure SIP submission together 

with previously approved SIP 

provisions, specifically those provisions 

that require EGUs to comply with CAIR 

and the additional measures in the 

regional haze SIP addressing best 

available retrofit technology (BART) and 

reasonable progress requirements for 

other sources or pollutants, are adequate 

to demonstrate compliance with prong 

4, thus, EPA is proposing to fully 

approve this aspect of the submission. 

Kentucky DAQ’s regional haze SIP 

relied on the Commonwealth’s previous 

incorporation of the CAIR into the EPAapproved SIP for Kentucky as an 

alternative to the requirement that the 

regional haze SIPs provide for sourcespecific BART emission limits for sulfur 

dioxide (SO2) and NOX emissions from 

EGUs. At the time the Commonwealth’s 

regional haze SIP was being developed, 

the Commonwealth’s reliance on CAIR 

was fully consistent with EPA’s 

regulations. CAIR, as originally 

promulgated, requires significant 

reductions in emissions of SO2 and NOX

to limit the interstate transport of these 

pollutants, and EPA’s determination 

that states could rely on CAIR as an 

alternative to requiring BART for CAIRsubject EGUs had specifically been 

upheld in Utility Air Regulatory Group 

v. EPA, 471 F.3d 1333 (D.C. Cir. 2006). 

Moreover, the states with Class I areas 

affected by emissions from sources in 

Kentucky had adopted reasonable 

progress goals for visibility protection 

that were consistent with the EGU 

emission limits resulting from CAIR. 

In 2008, however, the D.C. Circuit 

remanded CAIR back to EPA. See North 

Carolina v. EPA, 550 F.3d 1176 (D.C. 

Cir. 2008). The court found CAIR to be 

inconsistent with the requirements of 

the CAA, see North Carolina v. EPA, 

531 F.3d 896 (D.C. Cir. 2008), but 

ultimately remanded the rule to EPA 

without vacatur because it found that 

‘‘allowing CAIR to remain in effect until 

it is replaced by a rule consistent with 

[the court’s] opinion would at least 

temporarily preserve the environmental 

values covered by CAIR.’’ North 

Carolina, 550 F.3d at 1178. 

After the remand of CAIR by the D.C. 

Circuit and the promulgation by EPA of 

a new rule—CSAPR—to replace CAIR, 

EPA issued a limited disapproval of 

Kentucky DAQ’s regional haze SIP (and 

other states’ regional haze SIPs that 

relied similarly on CAIR) because EPA 

believed that full approval of the SIP 

was not appropriate in light of the 

court’s remand of CAIR and the 

uncertain but limited remaining period 

of operation of CAIR. EPA finalized a 

limited approval of the regional haze 

SIP, indicating that except for its 

reliance on CAIR, the SIP met CAA 

requirements for the first planning 

period of the regional haze program. See 

77 FR 19098 (March 30, 2012).12 EPA 

also finalized a limited FIP for 

Kentucky, which merely substituted 

reliance on EPA’s more recent Transport 

Rule’s (also known as CSAPR) NOX and 

SO2 trading programs for EGUs for the 

SIP’s reliance on CAIR. See 77 FR 

33642, June 7, 2012. 

Since the above-described 

developments with regard to Kentucky 

DAQ’s regional haze SIP, the situation 

has changed. In August 2012, the DC 

Circuit issued a decision to vacate 

CSAPR. See EME Homer City , 696 F.3d 

7. In this decision, the court ordered 

EPA to ‘‘continue administering CAIR 

pending the promulgation of a valid 

replacement.’’ Thus, EPA has been 

ordered by the court to develop a new 

rule, and to continue implementing 

CAIR in the meantime, and the opinion 

makes clear that after promulgating that 

new rule EPA must provide states an 

opportunity to draft and submit SIPs to 

implement that rule. Implementation of 

CAIR thus cannot be replaced until EPA 

has promulgated a final rule through a 

notice-and-comment rulemaking 

process; states have had an opportunity 

to draft and submit SIPs; EPA has 

reviewed the SIPs to determine if they 

can be approved; and EPA has taken 

action on the SIPs, including 

promulgating a FIP, if appropriate. 

EPA has filed a petition for rehearing 

of the court’s decision on the Transport 

Rule. However, based on the current 

direction from the court to continue 

administering CAIR, EPA believes that it 

is appropriate to rely on CAIR emission 

reductions as permanent and 

enforceable for purposes of assessing the 

adequacy of Kentucky DAQ’s 

infrastructure SIP with respect to prong 

4 while a valid replacement rule is 

developed and until implementation 

plans complying with any new rule are 

submitted by the states and acted upon 

by EPA or until the court case is 

resolved in a way that provides different 

direction regarding CAIR and CSAPR. In 

addition, EPA believes that based on the 

court’s decision on CSAPR it would be 

appropriate to propose to rescind its 

limited disapproval of Kentucky DAQ’s 

regional haze SIP and propose a full 

approval, but EPA is not proceeding to 

do so at this time because of the 

possibility that an en banc review of the 

court’s decision may have a different 

outcome that could bear on such action 

on the regional haze SIP. 

As neither the Commonwealth nor 

EPA has taken any action to remove 

CAIR from the Kentucky SIP, CAIR 

remains part of the EPA-approved SIP 

and can be considered in determining 

whether the SIP as a whole meets the 

requirement of prong 4 of 

110(a)(2)(D)(i). EPA is proposing to 

approve the infrastructure SIP 

submission with respect to prong 4 

because Kentucky’s regional haze SIP 

which EPA has given a limited approval 

in combination with its SIP provisions 

to implement CAIR adequately prevent 

sources in Kentucky from interfering 

with measures adopted by other states 

to protect visibility during the first 

planning period. While EPA is not at 

this time proposing to change the March 

30, 2012, limited approval and limited 

disapproval of Kentucky DAQ’s regional 

haze SIP, EPA expects to propose an 

appropriate action regarding Kentucky 

DAQ’s regional haze SIP upon final 

resolution of EME Homer City. 

110(a)(2)(D)(ii): With regard to 

110(a)(2)(D)(ii), Chapter 51:017— 

Prevention of significant deterioration of 

air quality of the Kentucky Air 

Regulations outlines how Kentucky 

DAQ will notify neighboring states of 

potential impacts from new or modified 

sources. The Kentucky SIP also includes 

federally approved regulations that 

satisfy the requirements for the NOx SIP 

Call. See 67 FR 17624 (April 11, 2002). 

Further, EPA is unaware of any pending 

obligations for the Commonwealth 

pursuant to sections 115 or 126 of the 

CAA. EPA has made the preliminary 

determination that Kentucky DAQ’s SIP 

and practices are adequate for insuring 

compliance with the applicable 

requirements relating to interstate and 

international pollution abatement for 

the 2008 8-hour ozone NAAQS. 

Accordingly, EPA is proposing to 

approve Kentucky DAQ’s infrastructure 

SIP submission with respect to section 

110(a)(2)(D)(ii). 


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5. 110(a)(2)(E) Adequate resources: 

Section 110(a)(2)(E) requires that each 

implementation plan provide (i) 

necessary assurances that the State will 

have adequate personnel, funding, and 

authority under state law to carry out its 

implementation plan, (ii) that the State 

comply with the requirements 

respecting State Boards pursuant to 

section 128 of the Act, and (iii) 

necessary assurances that, where the 

State has relied on a local or regional 

government, agency, or instrumentality 

for the implementation of any plan 

provision, the State has responsibility 

for ensuring adequate implementation 

of such plan provisions. EPA is 

proposing to approve Kentucky DAQ’s 

SIP as meeting the requirements of subelements 110(a)(2)(E)(i), (ii) and (iii). 

In support of EPA’s proposal to 

approve elements 110(a)(2)(E)(i) and 

(iii), Kentucky DAQ’s infrastructure 

submission demonstrates that it is 

responsible for promulgating rules and 

regulations for the NAAQS, emissions 

standards general policies, a system of 

permits, fee schedules for the review of 

plans, and other planning needs. As 

evidence of the adequacy of Kentucky 

DAQ’s resources with respect to subelements (i) and (iii), EPA submitted a 

letter to Kentucky DAQ on March 14, 

2012, outlining 105 grant commitments 

and current status of these commitments 

for fiscal year 2011. The letter EPA 

submitted to Kentucky DAQ can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2012– 

0700. Annually, states update these 

grant commitments based on current SIP 

requirements, air quality planning, and 

applicable requirements related to the 

NAAQS. There were no outstanding 

issues in relation to the SIP for fiscal 

year 2011, therefore, Kentucky DAQ’s 

grants were finalized and closed out. 

EPA has made the preliminary 

determination that Kentucky has 

adequate resources for implementation 

of the 2008 8-hour ozone NAAQS. In 

addition, the requirements of 

110(a)(2)(E)(i) and (iii) are met when 

EPA performs a completeness 

determination for each SIP submittal. 

This determination ensures that each 

submittal provides evidence that 

adequate personnel, funding, and legal 

authority under state law has been used 

to carry out the state’s implementation 

plan and related issues. Kentucky 

DAQ’s authority is included in all 

prehearings and final SIP submittal 

packages for approval by EPA. EPA has 

made the preliminary determination 

that Kentucky has adequate resources 

for implementation of the 2008 8-hour 

ozone NAAQS. Accordingly, EPA is 

proposing to approve Kentucky DAQ’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(E)(i) and 

(iii). 

Section 110(a)(2)(E)(ii) requires that 

the Commonwealth comply with section 

128 of the CAA. Section 128 requires 

that: 1) The majority of members of the 

state board or body which approves 

permits or enforcement orders represent 

the public interest and do not derive 

any significant portion of their income 

from persons subject to permitting or 

enforcement orders under the CAA; and 

2) any potential conflicts of interest by 

such board or body, or the head of an 

executive agency with similar, powers 

be adequately disclosed. Kentucky 

DAQ’s July 17, 2012, infrastructure SIP 

submission adequately demonstrated 

that Kentucky’s SIP meets the 

applicable section 128 requirements 

pursuant to section 110(a)(2)(E)(ii). 

For purposes of section 128(a)(1), 

Kentucky has no boards or bodies with 

authority over air pollution permits or 

enforcement actions. Such matters are 

instead handled by the Director of 

Division for Air Quality. As such, a 

‘‘board or body’’ is not responsible for 

approving permits or enforcement 

orders in Kentucky, and the 

requirements of section 128(a)(1) are not 

applicable. For purposes of section 

128(a)(2), Kentucky DAQ’s SIP has 

recently been updated. On October 3, 

2012,, EPA finalized approval of 

Kentucky DAQ’s July 17, 2012, SIP 

revision requesting incorporation of 

KRS Chapters 11A.020, 11A.030, 

11A.040 and Chapters 224.10–020 and 

224.10–100 into the SIP to address subelement 110(a)(2)(E)(ii). See 77 FR 

60307. With the incorporation of these 

regulations into the Kentucky SIP, EPA 

has made the preliminary determination 

that the Commonwealth has adequately 

addressed the requirements of section 

128(a)(2), and accordingly has met the 

requirements of section 110(a)(2)(E)(ii) 

with respect to infrastructure SIP 

requirements. Thus, EPA is proposing 

approval of Kentucky DAQ’s 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS with respect 

to this requirement as well. 

6. 110(a)(2)(F) Stationary source 

monitoring system: Chapter 50—General 

Administrative Procedures of the 

Kentucky Air Regulations 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 such 

data. Additionally, the Commonwealth 

is required to submit emissions data to 

EPA for purposes of the National 

Emissions Inventory (NEI). The 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. States report 

emissions data for the six criteria 

pollutants and the precursors that form 

them—NOX, SO2, lead, carbon 

monoxide, particulate matter, and 

volatile organic compounds. Many 

states also voluntarily report emissions 

of hazardous air pollutants. the 

Commonwealth made its latest update 

to the NEI on March 14, 2012. 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 2008 

8-hour ozone NAAQS. Accordingly, 

EPA is proposing to approve Kentucky 

DAQ’s infrastructure SIP submission 

with respect to section 110(a)(2)(F). 

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 2008 8-hour ozone NAAQS. As a 

result, EPA has made the preliminary 

determination that Kentucky DAQ’s SIP 

and practices are adequate for 

emergency powers related to the 2008 8- 

hour ozone NAAQS. Accordingly, EPA 

is proposing to approve Kentucky 

DAQ’s infrastructure SIP submission 

with respect to section 110(a)(2)(G). 

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 DAQ has the ability 

and authority to respond to calls for SIP 


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Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Proposed Rules 3875 

13 (1) EPA’s approval of Kentucky’s PSD/NSR 

regulations which address the Ozone 

Implementation NSR Update requirements 

promulgated in the Phase II Rule and (2) EPA’s 

approval of Kentucky’s PSD GHG Tailoring Rule 

revisions which addresses the thresholds for GHG 

permitting applicability in Kentucky. 

revisions, and has provided a number of 

SIP revisions over the years for 

implementation of the NAAQS. 

Kentucky has one area, Cincinnati, 

OH–KY–IN, that is designated as 

nonattainment for the 2008 8-hour 

ozone NAAQS. This area is classified as 

marginal nonattainment area and 

therefore no attainment demonstration 

SIPs are required. Section 182(a) of the 

CAA does require that, for marginal 

areas, states must submit Base Year 

Emissions Inventory SIPs, Periodic 

Emission Inventory SIPs, Emission 

Statement SIPs, and possibly SIP 

updates to their NSR program. While 

the CAA requires these types of SIPs for 

marginal areas, the specific 

requirements and compliance dates for 

these SIPs, as they relate to the 2008 8- 

hour ozone NAAQS, are not yet 

established but are expected to be 

addressed in the upcoming 

Implementation Rule for the 2008 

Ozone NAAQS SIP Requirements. 

Kentucky DAQ has provided SIP 

revisions for both the 1-hour ozone and 

1997 8-hour ozone NAAQS. EPA has 

made the preliminary determination 

that Kentucky DAQ’s SIP and practices 

adequately demonstrate a commitment 

to provide future SIP revisions related to 

the 2008 8-hour ozone NAAQS when 

necessary. Accordingly, EPA is 

proposing to approve Kentucky DAQ’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(H). 

9. 110(a)(2)(J): EPA is proposing to 

approve in part, and conditionally 

approve in part, the Commonwealth’s 

infrastructure SIP for the 2008 8-hour 

ozone NAAQS with respect to the 

requirements in section 110(a)(2)(J) to 

include a program in the SIP that 

provides for meeting the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127, and the 

PSD and visibility protection 

requirements of part C of the Act. 

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 DAQ 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 

DAQ’s consultation procedures include 

federal, state, and local transportation 

and air quality agency officials. 

Additionally, Kentucky DAQ submitted 

a regional haze plan which outlines its 

consultation practices with Federal 

Land Managers. EPA has made the 

preliminary determination that 

Kentucky DAQ’s SIP and practices 

adequately demonstrate consultation 

with government officials related to the 

2008 8-hour ozone NAAQS when 

necessary. Accordingly, EPA is 

proposing to approve Kentucky DAQ’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(J) (121 

consultation). 

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. See 

also the discussion above in regarding 

section 110(a)(2)(G). Additionally, the 

Commonwealth reports daily air quality 

information on its Web site at http:// 

air.ky.gov/Pages/AirQualityIndex 

Monitoring.aspx to inform the public on 

the existing air quality within the 

Commonwealth. EPA has made the 

preliminary determination that 

Kentucky DAQ’s SIP and practices 

adequately demonstrate the 

Commonwealth’s ability to provide 

public notification related to the 2008 8- 

hour ozone NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Kentucky DAQ’s infrastructure 

SIP submission with respect to section 

110(a)(2)(J) (127 public notification). 

110(a)(2)(J) (PSD) PSD: Kentucky DAQ 

demonstrates its authority to regulate 

new and modified sources of ozone to 

assist in the protection of air quality in 

Kentucky. Chapter 51—Attainment and 

Maintenance of the National Ambient 

Air Quality Standards, describes the 

permit requirements for new major 

sources or major modifications of 

existing sources in areas classified as 

attainment or unclassifiable under 

section 107(d)(1)(A)(ii) or (iii) of the 

CAA. These permitting requirements are 

designed to ensure that sources in areas 

attaining the NAAQS at the time of 

designations prevent any significant 

deterioration in air quality. Chapter 51 

also sets the permitting requirements for 

areas in or around nonattainment areas. 

Accordingly, this portion of element (J) 

also requires compliance with the Phase 

II Rule, the ‘‘GHG Tailoring Rule’’, the 

NSR PM2.5 Rule, and the PM2.5 PSD 

Increment-SILs-SMC Rule. Two of these 

SIP revisions 13 have been approved into 

the Kentucky SIP and address requisite 

requirements of the PSD-related 

requirement of infrastructure element 

110(a)(2)(J). As with infrastructure 

elements 110(a)(2)(C), and prong 3 of 

110(a)(2)(D)(i), EPA has preliminarily 

determined that Kentucky DAQ’s 

infrastructure SIP submission does not 

fully meet element 110(a)(2)(J). 

Kentucky DAQ’s SIP does not include 

provisions to meet relevant 

requirements for NSR/PSD program 

related to the NSR PM2.5 Rule and PM2.5

PSD Increment-SILs-SMC Rule (only as 

it relates to PM2.5 Increments). As noted 

above, on December 19, 2012, Kentucky 

DAQ submitted a letter to EPA 

providing a schedule to address 

outstanding PSD program requirements 

promulgated in the NSR PM2.5 Rule and 

PM2.5 PSD Increment-SILs-SMC Rule 

and committed to provide specific 

enforceable provisions for incorporation 

into the SIP to address the outstanding 

requirements. EPA has preliminarily 

determined that the Kentucky SIP meets 

the relevant PSD program requirements, 

with the exception of those SIP 

revisions described in the December 19, 

2012, commitment letter. Accordingly, 

in this action EPA is proposing to 

approve the infrastructure SIP 

submission as meeting the applicable 

requirements of section 110(a)(2)(J) 

(PSD), with the exception of the 

remaining issues related to the NSR 

PM2.5 Rule and PM2.5 PSD IncrementSILs-SMC Rule. In addition, EPA is 

proposing to conditionally approve 

Kentucky DAQ’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS with respect to these specific 

issues related to NSR PM2.5 Rule and 

PM2.5 PSD Increment-SILs-SMC Rule 

based upon the Commonwealth’s 

commitment letter. 

110(a)(2)(J) Visibility protection: With 

regard to the visibility protection aspect 

of 110(a)(2)(J), 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 are no applicable visibility 

obligations under part C ‘‘triggered’’ 

under section 110(a)(2)(J) when a new 

NAAQS becomes effective. Kentucky 

DAQ has submitted SIP revisions to 

satisfy the requirements of the CAA 


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3876 Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Proposed Rules 

Section 169A and 169B, and the 

regional haze and BART rules contained 

in 40 CFR 51.308. On March 30, 2012, 

EPA published a final rulemaking 

regarding Kentucky DAQ’s regional haze 

program, consisting of a limited 

approval and a limited disapproval. See 

77 FR 19098. In EPA’s view, the current 

status of Kentucky DAQ’s regional haze 

SIP as having not been fully approved 

is not a bar to full approval of the 

infrastructure SIP submission with 

respect to the visibility protection 

aspect of 110(a)(2)(J), and EPA is 

proposing to fully approve the 

infrastructure SIP for this aspect. While 

EPA is not at this time proposing to 

change the March 30, 2012, limited 

approval and limited disapproval of 

Kentucky DAQ’s Regional haze SIP 

itself, EPA expects to address the 

approval status of the regional haze SIP 

upon final resolution of EME Homer 

City. 

10. 110(a)(2)(K) Air quality and 

modeling/data: Kentucky DAQ 

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 

provides for the use of 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, the Commonwealth 

supports a regional effort to coordinate 

the development of emissions 

inventories and conduct regional 

modeling for several NAAQS, including 

the 2008 8-hour ozone NAAQS, for the 

Southeastern states. Taken as a whole, 

the Commonwealth’s air quality 

regulations demonstrate that the 

Kentucky 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 DAQ’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 2008 8-hour ozone NAAQS when 

necessary. Accordingly, EPA is 

proposing to approve Kentucky DAQ’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(K). 

11. 110(a)(2)(L) Permitting fees: 

Kentucky DAQ 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 DAQ’s SIP and practices 

adequately provide for permitting fees 

related to the 2008 8-hour ozone 

NAAQS when necessary. Accordingly, 

EPA is proposing to approve Kentucky 

DAQ’s infrastructure SIP submission 

with respect to section 110(a)(2)(L). 

12. 110(a)(2)(M) Consultation/ 

participation by affected local entities: 

The Kentucky DAQ coordinates with 

local governments affected by the SIP. 

More specifically, Kentucky DAQ 

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 DAQ’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 DAQ’s SIP and practices 

adequately demonstrate consultation by 

affected local entities related to the 2008 

8-hour ozone NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Kentucky DAQ’s infrastructure 

SIP submission with respect to section 

110(a)(2)(J) (127 public notification). 

V. Proposed Action 

EPA is proposing to approve in part, 

conditionally approve in part, and 

disapprove in part, Kentucky DAQ’s 

July 17, 2012, SIP revision submitted to 

satisfy infrastructure requirements for 

the 2008 8-hour ozone NAAQS. These 

proposed actions to approve in part, 

conditionally approve in part, and 

disapprove in part the Commonwealth 

of Kentucky’s infrastructure submission 

are consistent with sections 110(k)(3) 

and 110(k)(4) of the CAA. 

First, EPA is proposing to approve 

Kentucky DAQ’s infrastructure 

submission with regard to sections 

110(a)(2)(A); (B); (D)(i) prong 4; (E)–(H); 

(J) with the exception of the PSD 

element; and (K)–(M). EPA has made the 

preliminary determination that 

Kentucky DAQ’s July 17, 2012, SIP 

revision meets the infrastructure 

requirements for the 2008 8-hour ozone 

NAAQS for all the pertinent sections for 

110(a)(2) with the exception of portions 

of sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J), related 

to the SIP revisions identified in the 

commitment letter described above; and 

with the exception of section 

110(a)(2)(D)(i)(I). 

Second, EPA has preliminarily 

determined that the Kentucky SIP meets 

the relevant PSD program requirements 

of sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J), with the 

exception of those SIP revisions 

described in the December 19, 2012, 

commitment letter described above. 

Accordingly, in this action EPA is 

proposing to approve the infrastructure 

SIP submission as meeting the 

applicable requirements of these 

sections, with the exception of the 

remaining issues related to the NSR 

PM2.5 Rule and PM2.5 PSD IncrementSILs-SMC Rule. In addition, EPA is 

proposing to conditionally approve 

Kentucky DAQ’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS with respect to these specific 

issues related to NSR PM2.5 Rule and 

PM2.5 PSD Increment-SILs-SMC Rule 

based upon the Commonwealth’s 

commitment letter. 

Third, EPA is proposing to disapprove 

Kentucky DAQ’s infrastructure 

submission as it relates to 

110(a)(2)(D)(i)(I) (i.e. prongs 1 and 2 of 

110(a)(2)(D)(i)) because the 

Commonwealth’s submission does not 

address the statutory provisions with 

respect to the relevant NAAQS and thus 

does not satisfy the criteria for approval. 

EPA notes, that unless the EME Homer 

City decision is reversed or otherwise 

modified, the disapproval proposed 

herein will not require promulgation of 

a FIP for Kentucky related to the 

requirements of 110(a)(2)(D)(i)(I) for the 

2008 8-hour ozone NAAQS. Also as 

EPA is not at this time treating the 

110(a)(2)(D)(i)(I) SIP submission as a 

required submission, no further action 

will be required on the part of Kentucky 

related to the requirements of 

110(a)(2)(D)(i)(I) for the 2008 8-hour 

ozone NAAQS. 

VI. 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, 


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Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Proposed Rules 3877 

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 

Commonwealth law. For that reason, 

this proposed action: 

• 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); 

• 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). 

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, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: January 10, 2013. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2013–00951 Filed 1–16–13; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 12–374; RM–11687; DA 12– 

2072] 

Radio Broadcasting Services; Peach 

Springs, AZ 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document sets forth a 

proposal to amend the FM Table of 

Allotments, § 73.202(b) of the 

Commission’s rules. The Commission 

requests comment on a petition filed by 

the Hualapai Tribe, proposing to amend 

the Table of Allotments by allotting 

Channel 265A at Peach Springs, 

Arizona, as a Tribal Allotment. Channel 

265A would constitute a first tribal 

allotment and a second potential service 

at Peach Springs. Channel 265A can be 

allotted at Peach Springs, Arizona, in 

compliance with the Commission’s 

minimum distance separation 

requirements at 35–33–17 NL and 113– 

23–41 WL. See Supplementary 

Information infra. 

DATES: The deadline for filing comments 

is February 11, 2013. Reply comments 

must be filed on or before February 26, 

2013. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street SW., 

Washington, DC 20554. In addition to 

filing comments with the FCC, 

interested parties should serve the 

following: F. W. Hannel & Associates, 

10733 East Butherus Drive, Scottsdale, 

Arizona 85255; and Philbert 

Watahomigie, Vice Chairman, Hualapai 

Tribe, Post Office Box 179, Peach 

Springs, Arizona 86434. 

FOR FURTHER INFORMATION CONTACT: 

Deborah A. Dupont, Media Bureau (202) 

418–7072. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

12–374, adopted December 20, 2012, 

and released December 21, 2012. The 

full text of this Commission decision is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Information Center 

(Room CY–A257), 445 12th Street SW., 

Washington, DC 20554. The complete 

text of this decision may also be 

purchased from the Commission’s copy 

contractor, Best Copy and Printing, Inc., 

445 12th Street SW., Room CY–B402, 

Washington, DC 20554, (800) 378–3160, 

or via the company’s Web site, 

www.bcpiweb.com. This document does 

not contain proposed information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

The Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. Members of the public 

should note that from the time a Notice 

of Proposed Rule Making is issued until 

the matter is no longer subject to 

Commission consideration or court 

review, all ex parte contacts are 

prohibited in Commission proceedings, 

such as this one, which involve channel 

allotments. See 47 CFR 1.1204(b) for 

rules governing permissible ex parte 

contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

Federal Communications Commission. 

Nazifa Sawez, 

Assistant Chief, Audio Division, Media 

Bureau. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336 

and 339. 

§ 73.202 [Amended] 

■ 2. Section 73.202 paragraph (b), the 

Table of FM Allotments under Arizona 

entry, is amended by adding 265A 

(Tribal Allotment) at Peach Springs. 

[FR Doc. 2013–00921 Filed 1–16–13; 8:45 am] 

BILLING CODE 6712–01–P 


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