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[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Proposed Rules]
[Pages 19098-19108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07644]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0426; FRL-9944-52-Region 4]

Approval and Promulgation of Implementation Plans; Kentucky; 
Infrastructure Requirements for the 2010 Sulfur Dioxide National 
Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the State Implementation Plan (SIP) submission, 
submitted by the Commonwealth of Kentucky, Energy and Environment 
Cabinet, Department for Environmental Protection, through the Kentucky 
Division for Air Quality (KDAQ), on April 26, 2013, to demonstrate that 
the Commonwealth meets the infrastructure requirements of the Clean Air 
Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) 
national ambient air quality standard (NAAQS). The CAA requires that 
each state adopt and submit a SIP for the implementation, maintenance 
and enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. KDAQ certified that the 
Kentucky SIP contains provisions that ensure the 2010 1-hour 
SO2 NAAQS is implemented, enforced, and maintained in 
Kentucky. EPA is proposing to determine that Kentucky's infrastructure 
submission, submitted on April 26, 2013, addresses certain 
infrastructure elements for the 2010 1-hour SO2 NAAQS.

[[Page 19099]]

DATES: Written comments must be received on or before May 4, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0426 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Notarianni can be reached via electronic mail at 
notarianni.michele@epa.gov or the telephone number (404) 562-9031.

Table of Contents

I. Background and Overview
II. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how 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 June 22, 2010 (75 FR 35520), EPA revised the primary 
SO2 NAAQS to an hourly standard at a level of 75 parts per 
billion (ppb), based on a 3-year average of the annual 99th percentile 
of 1-hour daily maximum concentrations. 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 2010 1-hour SO2 NAAQS to EPA no later than June 2, 
2013.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``401 KAR XX:XXX'' indicates that the cited 
regulation has either been approved, or submitted for approval into 
Kentucky's federally-approved SIP. The State statutes cited from the 
Kentucky Revised Statutes (also referred to as ``KRS'') throughout 
this rulemaking are not approved into the Kentucky SIP, unless 
otherwise indicated.
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    Today's action is proposing to approve Kentucky's infrastructure 
SIP submission for the applicable requirements of the 2010 1-hour 
SO2 NAAQS. With respect to the interstate transport 
provisions pertaining to the contribution to nonattainment or 
interference with maintenance in other states and the visibility 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 
4), and the minor source program requirements of section 110(a)(2)(C), 
EPA is not proposing any action at this time regarding these 
requirements. For the aspects of Kentucky's submittal proposed for 
approval today, EPA notes that the Agency is not approving any specific 
rule, but rather proposing that Kentucky'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.
    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 and in EPA's September 13, 2013, memorandum entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2).'' \2\
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    \2\ 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 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).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP Revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and Prevention of

[[Page 19100]]

Significant Deterioration (PSD) and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from Kentucky that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 1-hour SO2 NAAQS. The requirement for states to 
make a SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon EPA's taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007, submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant,

[[Page 19101]]

or as relevant, or relevant in the same way, for each new or revised 
NAAQS. The states' attendant infrastructure SIP submissions for each 
NAAQS therefore could be different. For example, the monitoring 
requirements that a state might need to meet in its infrastructure SIP 
submission for purposes of section 110(a)(2)(B) could be very different 
for different pollutants because the content and scope of a state's 
infrastructure SIP submission to meet this element might be very 
different for an entirely new NAAQS than for a minor revision to an 
existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
fine particulate matter (PM2.5) NAAQS. Accordingly, the 
latter optional provisions are types of provisions EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, among other things, the requirement that states 
have a program to regulate minor new sources. Thus, EPA evaluates 
whether the state has an EPA-approved minor NSR program and

[[Page 19102]]

whether the program addresses the pollutants relevant to that NAAQS. In 
the context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) 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''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\14\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\15\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\16\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Kentucky addressed the elements of 
the sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    Kentucky's April 26, 2013, 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: Section 
110(a)(2)(A) requires that each implementation plan include enforceable 
emission limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables for 
compliance, as may be necessary or appropriate to meet the applicable 
requirements. These requirements are met through Kentucky Revised 
Statute (KRS) Chapter 224 Section 10-100 (KRS 224.10-100), which 
provides the KDAQ the authority to administer all rules, regulations, 
and orders promulgated under Chapter 224, and to provide for the 
prevention, abatement, and control of all water, land, and air 
pollution.

[[Page 19103]]

    KDAQ cited to chapters and associated Kentucky Administrative 
Regulations (KAR) under Title 401 to demonstrate that the Commonwealth 
meets the requirements of this element, including the following:
     Chapter 50 General Administrative Procedures: 401 KAR 
50:010. Definitions for 401 KAR Chapter 50; 401 KAR 50:012. General 
application; 401 KAR 50:015. Documents incorporated by reference; 401 
KAR 50:020. Air quality control regions; 401 KAR 50:025. Classification 
of counties; 401 KAR 50:040. Air quality models; 401 KAR 50:042. Good 
engineering practice stack height; 401 KAR 50:045. Performance tests; 
401 KAR 50:047. Test procedures for capture efficiency; 401 KAR 50:050. 
Monitoring; 401 KAR 50:055. General compliance requirements; and 401 
KAR 50:060. Enforcement.
     Chapter 51 Attainment and Maintenance of the National 
Ambient Air Quality Standards: 401 KAR 51:001. Definitions for 401 KAR 
Chapter 51; 401 KAR 51:005. Purpose and General Provisions; 401 KAR 
51:010. Attainment Status Designations; 401 KAR 51:017. Prevention of 
significant deterioration of air quality; 401 KAR 51:052. Review of new 
sources in or impacting upon nonattainment areas.
     Chapter 52 Permits, Registrations, and Prohibitory Rules: 
401 KAR 52:001. Definitions for 401 KAR Chapter 52; 401 KAR 52:020. 
Title V permits; \18\ 401 KAR 52:030. Federally-enforceable permits for 
nonmajor sources; 401 KAR 52:090. Prohibitorv rule for hot mix asphalt 
plants; 401 KAR 53:005. General provisions; 401 KAR 53:010. Ambient air 
quality standards.
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    \18\ This rule is not approved into Kentucky's federally-
approved SIP.
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    Collectively these regulations establish enforceable emissions 
limitations and other control measures, means or techniques, for 
activities that contribute to SO2 concentrations in the 
ambient air and provide authority for KDAQ to establish such limits and 
measures as well as schedules for compliance to meet the applicable 
requirements of the CAA. EPA has made the preliminary determination 
that the provisions contained in these regulations, and Kentucky's 
statute are adequate for enforceable emission limitations and other 
control measures, means, or techniques, as well as schedules and 
timetables for compliance for the 2010 1-hour SO2 NAAQS in 
the Commonwealth.
    In this action, EPA is not proposing to approve or disapprove any 
existing Commonwealth provisions with regard to excess emissions during 
SSM 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 is addressing such state regulations in a separate action.\19\
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    \19\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    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: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to 
(i) monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. These 
requirements are met through KRS 224.10-100 (22), which provides KDAQ 
the authority to require the installation, maintenance, and use of 
equipment, devices, or tests and methodologies to monitor the nature 
and amount of any substance emitted into the ambient air and to provide 
the information to the cabinet.
    KDAQ cites the following regulations to demonstrate that the 
Commonwealth meets the requirements of this element: 401 KAR 50:050. 
Monitoring; 401 KAR 51:017. Prevention of significant deterioration of 
air quality; and 401 KAR 51:052. Review of new sources in or impacting 
upon nonattainment areas; 401 KAR 53:005. General provisions; 401 KAR 
53:010. Ambient air quality standards.
    These SIP-approved rules and Kentucky's statute, along with 
Kentucky's Ambient Air Monitoring Network Plan, provide for the 
establishment and operation of ambient air quality monitors, the 
compilation and analysis of ambient air quality data, and the 
submission of these data to EPA upon request. Annually, states develop 
and submit to EPA for approval statewide ambient monitoring network 
plans consistent with the requirements of 40 CFR parts 50, 53, and 58. 
The annual network plan involves an evaluation of any proposed changes 
to the monitoring network, includes the annual ambient monitoring 
network design plan and a certified evaluation of the agency's ambient 
monitors and auxiliary support equipment.\20\ KDAQ's monitoring network 
plan was submitted on July 1, 2015, and approved by EPA on October 28, 
2015. Kentucky's approved monitoring network plan can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0426. 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 2010 1-hour SO2 NAAQS.
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    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: This element 
consists of three sub-elements: Enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). These requirements are met through 401 KAR 50:060. 
Enforcement; 401 KAR 51:017. Prevention of significant deterioration of 
air quality; and 401 KAR 51:052. Review of new sources in or impacting 
upon nonattainment areas. Collectively, these regulations enable KDAQ 
to regulate sources contributing to the 2010 1-hour SO2 
NAAQS. EPA's analysis of how these provisions of Kentucky's SIP address 
each sub-element (with the exception of the minor source program 
requirements, as set forth below) is described below.
    Enforcement: KDAQ's SIP-approved regulation, 401 KAR 50:060. 
Enforcement, provides for enforcement of SO2 emission limits 
and control measures through permit and compliance schedule 
modifications and revocations, and authorizes administrative penalties 
and injunctive relief, citing to statutory civil penalty and injunctive 
relief provisions of KRS

[[Page 19104]]

224.99-010. EPA has made the preliminary determination that Kentucky's 
SIP is adequate for enforcement related to the 2010 1-hour 
SO2 NAAQS.
    PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a 
particular NAAQS demonstrate that the state has a complete PSD 
permitting program in place covering the structural PSD requirements 
for all regulated NSR pollutants. A state's PSD permitting program is 
complete for this sub-element (and prong 3 of D(i) and J related to 
PSD) if EPA has already approved or is simultaneously approving the 
state's SIP with respect to all structural PSD requirements that are 
due under the EPA regulations or the CAA on or before the date of the 
EPA's proposed action on the infrastructure SIP submission. For the 
2010 1-hour SO2 NAAQS, Kentucky's authority to regulate new 
and modified sources to assist in the protection of air quality in 
attainment or unclassifiable areas is established in KAR Chapter 51--
Attainment and Maintenance of the National Ambient Air Quality 
Standards, which 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 establishes 
the permitting requirements for areas in or around nonattainment areas 
and provides the Commonwealth's statutory authority to enforce 
regulations relating to attainment and maintenance of the NAAQS.
    Kentucky's infrastructure SIP submission demonstrates that new 
major sources and major modifications in areas of the Commonwealth 
designated attainment or unclassifiable for the specified NAAQS are 
subject to a federally-approved PSD permitting program meeting all the 
current structural requirements of part C of title I of the CAA to 
satisfy the infrastructure SIP PSD elements.\21\ EPA has made the 
preliminary determination that Kentucky's SIP is adequate for PSD 
permitting for major sources related to the 2010 1-hour SO2 
NAAQS.
---------------------------------------------------------------------------

    \21\ For more information concerning how the Kentucky 
infrastructure SIP submission currently meets applicable structural 
PSD program requirements, see the technical support document in the 
docket for today's rulemaking.
---------------------------------------------------------------------------

    Regulation of minor sources and minor modifications: Section 
110(a)(2)(C) also requires the SIP to include provisions that govern 
the minor source preconstruction program that regulates emissions of 
the 2010 1-hour SO2 NAAQS. EPA is not proposing any action 
in this rulemaking related to the regulation of minor sources and minor 
modifications under section 110(a)(2)(C) and will consider these 
requirements in relation to Kentucky's 2010 1-hour SO2 NAAQS 
infrastructure submission in a separate rulemaking.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components has two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure 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 from 
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'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because Kentucky's 2010 1-hour SO2 NAAQS infrastructure 
submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With regard to section 
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this 
requirement may be met by a 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 that has the potential to impact PSD in another 
state) to a NNSR program. As discussed in more detail above under 
section 110(a)(2)(C), Kentucky's SIP contains the relevant SIP 
revisions necessary to satisfy the structural PSD requirements of prong 
3. Kentucky's SIP-approved NNSR program is found at 401 KAR 51:052. 
Review of new sources in or impacting upon nonattainment areas. EPA has 
made the preliminary determination that Kentucky's SIP is adequate for 
interstate transport for permitting of major sources and major 
modifications related to the 2010 1-hour SO2 NAAQS for 
section 110(a)(2)(D)(i)(II) (prong 3).
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to visibility protection in other states of section 
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in 
relation to Kentucky's 2010 1-hour SO2 NAAQS infrastructure 
submission in a separate rulemaking.
    5. 110(a)(2)(D)(ii) Interstate and International Transport 
Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include 
provisions ensuring compliance with sections 115 and 126 of the Act, 
relating to interstate and international pollution abatement. 
Regulation 401 KAR 51:010. Attainment Status Designations designates 
the status of all areas of the Commonwealth of Kentucky with regard to 
attainment of the NAAQS. Regulation 401 KAR 51:017. Prevention of 
significant deterioration of air quality and Regulation 401 KAR 51:052. 
Review of new sources in or impacting upon nonattainment areas, Section 
1, require Kentucky to provide notice to nearby states that may be 
affected by proposed major source modifications. These regulations cite 
to Federal notification requirements under 40 CFR Sections 51.166 and 
52.21, and to 401 KAR 52:100. Public, affected state, and US. EPA 
review, Section 6, which requires that public notice for permit actions 
be provided to affected states. Additionally, Kentucky does not have 
any pending obligation under sections 115 and 126 of the CAA. EPA has 
made the preliminary determination that Kentucky's SIP is adequate for 
ensuring compliance with the applicable requirements relating to 
interstate and international pollution abatement for the 2010 1-hour 
SO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
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

[[Page 19105]]

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's SIP submission as 
meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and 
(iii).
    In support of EPA's proposal to approve elements 110(a)(2)(E)(i) 
and (iii), KDAQ'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. With 
respect to having the necessary funding and authority to implement the 
Kentucky SIP, Kentucky regulation, 401 KAR 50:038. Air Emissions Fee, 
and the following State statutes support sub-elements (i) and (iii): 
KRS 224.10-100. Powers and Duties of the Cabinet and KRS 224.10-020. 
Departments within the cabinet--Offices and divisions within the 
departments--Appointments. As evidence of the adequacy of KDAQ's 
resources with respect to sub-elements (i) and (iii), EPA submitted a 
letter to KDAQ on March 12, 2015, outlining 105 grant commitments and 
current status of these commitments for fiscal year 2014. The letter 
EPA submitted to KDAQ can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2014-0426. 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 2014, 
therefore, KDAQ's grants were finalized and closed out. 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. KDAQ'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 2010 1-hour 
SO2 NAAQS. Accordingly, EPA is proposing to approve 
Kentucky's infrastructure SIP submission with respect to section 
110(a)(2)(E)(i) and (iii).
    Section 110(a)(2)(E)(ii) requires that Kentucky comply with section 
128 of the CAA. Section 128 requires at 128(a)(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 128(a)(2) any potential 
conflicts of interest by such board or body, or the head of an 
executive agency with similar, powers be adequately disclosed. 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 the KDAQ. 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), KDAQ's 
SIP has been updated. On October 3, 2012, EPA took final action to 
approve incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and 
Chapters 224.10-020 and 224.10-100 into the SIP to address the conflict 
of interest requirements of section 128. See 77 FR 60307. These SIP-
approved state statutes establish the powers and duties of the cabinet, 
departments within the cabinet, and offices and divisions within such 
departments (Chapters 224.10-020 and 224.10-100), and support sub-
element (ii) by requiring adequate disclosures of potential conflicts 
(KRS 11A.020. Public servant prohibited from certain conduct--
Exception--Disclosure of personal or private interest) and otherwise 
ensuring that public officers and servants do not engage in activities 
that may present a conflict of interest (KRS 11A.030 Considerations in 
determination to abstain from action on official decision--Advisory 
opinion; and KRS 11A.040 Acts prohibited for public servant or 
officer--Exception). With the incorporation of these regulations and 
statutes 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 KDAQ's 
infrastructure SIP submission for the 2010 1-hour SO2 NAAQS 
with respect to section 110(a)(2)(E)(ii).
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i) the installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. The Kentucky infrastructure 
submission describes how the major source and minor source emission 
inventory programs collect emission data throughout the Commonwealth 
and ensure the quality of such data. Kentucky meets these requirements 
through Chapter 50 General Administrative Procedures, specifically 401 
KAR 50:050 Monitoring. 401 KAR 50:050, Section 1, Monitoring Records 
and Reporting, states that the cabinet may require a facility to 
install, use, and maintain stack gas and ambient air monitoring 
equipment and to establish and maintain records, and make periodic 
emission reports at intervals prescribed by the cabinet. 401 KAR 50:050 
Monitoring, Section 1, Monitoring, Records, and Reporting, establishes 
the requirements for the installation, use, and maintenance of stack 
gas and ambient air monitoring equipment, and authorizes the cabinet to 
require the owner or operator of any affected facility to establish and 
maintain records for this equipment and make periodic emission reports 
at intervals prescribed by the cabinet. Also, KRS 224.10-100 (23) 
requires that any person engaged in any operation regulated pursuant to 
this chapter file with the cabinet reports containing information as to 
location, size, height, rate of emission or discharge, and composition 
of any substance discharged or emitted into the ambient air or into the 
waters or onto the land of the Commonwealth, and such other information 
the cabinet may require. In addition, EPA is unaware of any provision 
preventing the use of credible evidence in the Kentucky SIP.\22\
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    \22\ ``Credible Evidence,'' makes allowances for owners and/or 
operators to utilize ``any credible evidence or information 
relevant'' to demonstrate compliance with applicable requirements if 
the appropriate performance or compliance test had been performed, 
for the purpose of submitting compliance certification and can be 
used to establish whether or not an owner or operator has violated 
or is in violation of any rule or standard.
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    Additionally, Kentucky 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

[[Page 19106]]

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--nitrogen oxides, SO2, 
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 
November 6, 2014. 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 
2010 1-hour SO2 NAAQS. Accordingly, EPA is proposing to 
approve Kentucky's infrastructure SIP submission with respect to 
section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency Powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. Kentucky's 
infrastructure SIP submission identifies air pollution emergency 
episodes and preplanned abatement strategies as outlined in the 
following Kentucky regulations in Chapter 55 Emergency Episodes, 
specifically: 401 KAR 55:005. Significant harm criteria, 401 KAR 
55:010. Episode Criteria, and 401 KAR 55:015. Episode Declaration. 401 
KAR 55:005. Significant Harm Criteria, Section 1, Purpose, defines 
those levels of pollutant concentration which must be prevented in 
order to avoid significant harm to the health of persons. 401 KAR 
55:010. Episodic Criteria, defines those levels of pollutant 
concentrations which justify the proclamation of an air pollution 
alert, air pollution warning, an air pollution emergency. 401 KAR 
55:015. Episode Declaration, provides for the curtailment or reduction 
of processes or operations which emit an air contaminant or an air 
contaminant precursor whose criteria has been reached and are located 
in the affected areas for which an episode level has been declared.
    In addition, KRS 224.10-100 Powers and duties of cabinet and KRS 
224.10-410 Order for discontinuance, abatement, or alleviation of 
condition or activity without hearing--Subsequent hearing, establish 
the authority for Kentucky's secretary to issue orders to person(s) for 
discontinuance, abatement, or alleviation of any condition or activity 
without hearing because the condition or activity presents a danger to 
the health or welfare of the people of the state, and for the cabinet 
to require adoption of any remedial measures deemed necessary. EPA has 
made the preliminary determination that Kentucky's SIP, and state laws 
are adequate for emergency powers related to the 2010 1-hour 
SO2 NAAQS. Accordingly, EPA is proposing to approve 
Kentucky's infrastructure SIP submission with respect to section 
110(a)(2)(G).
    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan (i) as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. As previously discussed, KDAQ 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.
    KDAQ is responsible for adopting air quality rules and revising 
SIPs as needed to attain or maintain the NAAQS in Kentucky. 401 KAR 
Chapter 53 Ambient Air Quality and Chapter 51 Attainment and 
Maintenance of the National Ambient Air Quality Standards grant KDAQ 
the broad authority to implement the CAA, and as such, provides KDAQ 
the authority to prepare and develop, after proper study, a 
comprehensive plan for the prevention of air pollution. These statutes 
also provide KDAQ the ability and authority to respond to calls for SIP 
revisions, and KDAQ has provided a number of SIP revisions over the 
years for implementation of the NAAQS. Additionally, 401 KAR 53:010 
outlines the ambient air quality standards necessary for the protection 
of the public health, the general welfare, and the property and people 
in the Commonwealth and states that within 60 days of promulgation or 
revision of any NAAQS by EPA, the cabinet will initiate a process to 
promulgate or review this administrative regulation. 401 KAR 51:010. 
Attainment Status Designations provides provisions for the Cabinet to 
review applicable data and submit to EPA proposed revisions to the list 
of attainment-nonattainment areas. EPA has made the preliminary 
determination that Kentucky adequately demonstrates a commitment to 
provide future SIP revisions related to the 2010 1-hour SO2 
NAAQS when necessary. Accordingly, EPA is proposing to approve 
Kentucky's infrastructure SIP submission for the 2010 1-hour 
SO2 NAAQS with respect to section 110(a)(2)(H).
    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve Kentucky's infrastructure SIP submission for the 2010 1-hour 
SO2 NAAQS with respect to the general requirement 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, PSD, and visibility. EPA's 
rationale for each sub-element is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
Federal Land Managers carrying out NAAQS implementation requirements 
pursuant to section 121 relative to consultation. This requirement is 
met through provisions in separate implementation plans, such as the 
Regional Haze SIP, which provide for continued consultation with 
government officials, including the Federal Land Managers (FLMs). 
Kentucky adopted consultation procedures in coordination with the 
transportation partners in the Commonwealth, for the implementation of 
transportation conformity, which includes 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. Implementation of 
transportation conformity as outlined in the consultation procedures 
requires KDAQ to consult with Federal, state and local transportation 
and air quality agency officials on the development of motor vehicle 
emissions budgets. Also,

[[Page 19107]]

KDAQ notes in its April 26, 2013, SIP submission that the following 
Kentucky regulations provide the Commonwealth the authority to meet 
this requirement: 401 KAR 50:055. General compliance requirements; 401 
KAR 50:060. Enforcement; 401 KAR 50:065. Conformity of general federal 
actions; 401 KAR 50:066. Conformity of Transportation Plans, Programs, 
and Projects; 401 KAR 51:017. Prevention of Significant Deterioration 
of Air Quality; and 401 KAR 51:052. Review of new sources in or 
impacting upon nonattainment areas. EPA has made the preliminary 
determination that Kentucky's SIP and practices adequately demonstrate 
consultation with government officials related to the 2010 1-hour 
SO2 NAAQS when necessary for the consultation with 
government officials element of section 110(a)(2)(J).
    Public notification (127 public notification): These requirements 
are met through the following Kentucky regulations: 401 KAR 51:001. 
Definitions for 401 KAR Chapter 51; 401 KAR 51:005. Purpose and General 
Provisions; 401 KAR 51:010. Attainment Status Designations; 401 KAR 
51:017. Prevention of significant deterioration of air quality; 401 KAR 
51:052. Review of new sources in or impacting upon nonattainment areas; 
and 401 KAR 52:100. Public, Affected State, and US. EPA Review. 
Additionally, Kentucky provides air quality information to the public 
via its Web site at: http://eppcapp.ky.gov/daq/. 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 2010 1-hour SO2 NAAQS when necessary for the 
public notification element of section 110(a)(2)(J).
    PSD: With regard to the PSD element of section 110(a)(2)(J), this 
requirement may be met by a 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. As discussed in more 
detail above under section 110(a)(2)(C), Kentucky's SIP contains the 
relevant SIP revisions necessary to satisfy the structural PSD 
requirements of this element of section 110(a)(2)(J). EPA has made the 
preliminary determination that Kentucky's SIP is adequate for the PSD 
element of section 110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. EPA 
recognizes that states are subject to visibility protection and 
regional haze program requirements under Part C of the Act (which 
includes sections 169A and 169B). However, there are no newly 
applicable visibility protection obligations after the promulgation of 
a new or revised NAAQS. Thus, EPA has determined that states do not 
need to address the visibility component of 110(a)(2)(J) in 
infrastructure SIP submittals. As such, EPA has made the determination 
that it does not need to address the visibility protection element of 
section 110(a)(2)(J) in Kentucky's infrastructure SIP submission 
related to the 2010 1-hour SO2 NAAQS.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. This requirement is met through Kentucky 
regulations 401 KAR 50:040. Air Quality Models and 401 KAR 50:050. 
Monitoring. Additionally, Kentucky participates in a regional effort to 
coordinate the development of emissions inventories and conduct 
regional modeling for several NAAQS, including the 2010 1-hour 
SO2 NAAQS, for the Southeastern states. Taken as a whole, 
Kentucky's air quality regulations and practices demonstrate that KDAQ 
has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 2010 1-hour 
SO2 NAAQS. EPA has made the preliminary determination that 
Kentucky's SIP and practices adequately demonstrate the Commonwealth's 
ability to provide for air quality modeling, along with analysis of the 
associated data, related to the 2010 1-hour SO2 NAAQS. 
Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP 
submission with respect to section 110(a)(2)(K).
    12. 110(a)(2)(L) Permitting Fees: This section requires the SIP to 
direct the owner or operator of each major stationary source to pay to 
the permitting authority, as a condition of any permit required under 
the CAA, a fee sufficient to cover (i) the reasonable costs of 
reviewing and acting upon any application for such a permit, and (ii) 
if the owner or operator receives a permit for such source, the 
reasonable costs of implementing and enforcing the terms and conditions 
of any such permit (not including any court costs or other costs 
associated with any enforcement action), until such fee requirement is 
superseded with respect to such sources by the Administrator's approval 
of a fee program under title V.
    Kentucky regulation, 401 KAR 50:038 Air Emissions Fee,\23\ provides 
for the assessment of fees necessary to fund the state permit program. 
KDAQ ensures this is sufficient for the reasonable cost of reviewing 
and acting upon PSD and NNSR permits. Additionally, Kentucky has a 
fully approved title V operating permit program at 401 KAR 52:020 Title 
V permits \24\ that covers the cost of implementation and enforcement 
of PSD and NNSR permits after they have been issued. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
provide for permitting fees related to the 2010 1-hour SO2 
NAAQS, when necessary. Accordingly, EPA is proposing to approve 
Kentucky's infrastructure SIP submission with respect to section 
110(a)(2)(L).
---------------------------------------------------------------------------

    \23\ This rule is not approved into the federally approved SIP.
    \24\ This rule is not approved into the federally approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities: Section 110(a)(2)(M) of the Act requires states to provide 
for consultation and participation in SIP development by local 
political subdivisions affected by the SIP. This requirement is met 
through provisions in separate implementation plans, such as the 
regional haze SIP, which provide for continued consultation with 
government officials, including the FLMs. Kentucky regulation, 401 KAR 
50:066. Conformity of transportation plans, programs, and projects, and 
the interagency consultation process as directed by Kentucky's approved 
Conformity SIP and 40 CFR 93.112 provide for consultation with local 
groups. More specifically, Kentucky adopted state-wide consultation 
procedures for the implementation of transportation conformity which 
includes the development of mobile inventories for SIP development and 
the requirements that link transportation planning and air quality 
planning in nonattainment and maintenance areas. 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 
demonstrating how they meet transportation conformity requirements. 
Further, Kentucky's SO2 infrastructure

[[Page 19108]]

SIP submission notes that the following State regulations and State 
statutes provide the Commonwealth the authority to meet the 
requirements of this element: 401 KAR 50:066. Conformity of 
transportation plans, programs, and projects; 401 KAR 52:100. Public, 
Affected State, and US EPA Review; and KRS Chapter 77. Air Pollution 
Control. EPA has made the preliminary determination that Kentucky's SIP 
and practices adequately demonstrate consultation with affected local 
entities related to the 2010 1-hour SO2 NAAQS when 
necessary.

V. Proposed Action

    With the exception of interstate transport provisions pertaining to 
the contribution to nonattainment or interference with maintenance in 
other states and visibility protection requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the minor source 
program requirements of section 110(a)(2)(C), EPA is proposing to 
approve Kentucky's April 26, 2013, infrastructure SIP submission for 
the 2010 1-hour SO2 NAAQS for the above described 
infrastructure SIP requirements. EPA is proposing to approve these 
portions of Kentucky's infrastructure SIP submission for the 2010 1-
hour SO2 NAAQS because these aspects of the submission are 
consistent with section 110 of the CAA.

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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: March 25, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-07644 Filed 4-1-16; 8:45 am]
 BILLING CODE 6560-50-P
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