81868 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

1 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

2 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

3 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

4Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

5 ‘‘Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call: 

Final Rule.’’ 75 FR 77698 (December 13, 2010). 

6 ‘‘Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan: Proposed Rule.’’ 75 

FR 53883 (September 2, 2010). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0691–201069, FRL– 

9244–6] 

Approval and Promulgation of 

Implementation Plans; Kentucky: 

Prevention of Significant Deterioration; 

Greenhouse Gas Permitting Authority 

and Tailoring Rule Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the State 

Implementation Plan (SIP), submitted 

by the Commonwealth of Kentucky’s 

Energy and Environment Cabinet, 

through the Kentucky Division for Air 

Quality (KDAQ), to EPA on August 5, 

2010, for parallel processing. KDAQ 

submitted the final version of this SIP 

revision on December 13, 2010. The SIP 

revision, which incorporates updates to 

KDAQ’s air quality regulations, includes 

two significant changes impacting the 

regulation of greenhouse gas (GHG) 

under Kentucky’s New Source Review 

(NSR) Prevention of Significant 

Deterioration (PSD) program. First, the 

revision provides the Commonwealth 

with authority to issue PSD permits 

governing GHGs. Second, the SIP 

revision establishes appropriate 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

Kentucky’s PSD permitting 

requirements for their GHG emissions. 

The first change is necessary because 

the Commonwealth of Kentucky is 

required to apply its PSD program to 

GHG-emitting sources, and unless it 

does so (or unless EPA promulgates a 

Federal implementation plan (FIP) to do 

so), such sources will be unable to 

receive preconstruction permits and 

therefore may not be able to construct or 

modify. The second change is necessary 

because without it, on January 2, 2011, 

PSD requirements would apply at the 

100 or 250 tons per year (tpy) levels 

otherwise provided under the Clean Air 

Act (CAA or Act), which would 

overwhelm Kentucky’s permitting 

resources. EPA is approving the 

Commonwealth of Kentucky’s December 

13, 2010, SIP revision because the 

Agency has made the determination that 

this SIP revision is in accordance with 

the CAA and EPA regulations, including 

regulations pertaining to PSD permitting 

for GHGs. Additionally, EPA is 

responding to adverse comments 

received on EPA’s November 5, 2010, 

proposed approval of Kentucky’s 

August 5, 2010, SIP revision. 

DATES: Effective Date: This rule will be 

effective January 3, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0691. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

for further information. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Kentucky SIP, 

contact Ms. Twunjala Bradley, 

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. Ms. 

Bradley’s telephone number is (404) 

562–9352; e-mail address: 

bradley.twunjala@epa.gov. For 

information regarding the Tailoring 

Rule, contact Ms. Heather Abrams, Air 

Permits Section, at the same address 

above. Ms. Abrams’ telephone number 

is (404) 562–9185; e-mail address: 

abrams.heather@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for today’s final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of today’s final action? 

IV. When is today’s action effective? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What is the background for today’s 

final action? 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action for the Kentucky SIP. The first 

four of these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,1 the ‘‘Johnson Memo 

Reconsideration,’’ 2 the ‘‘Light-Duty 

Vehicle Rule,’’ 3 and the ‘‘Tailoring 

Rule.’’ 4 Taken together, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they take effect on January 2, 2011, will 

subject GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. In a separate action, 

EPA called on the Commonwealth of 

Kentucky and 12 other States with SIPs 

that do not provide authority to issue 

PSD permits governing GHGs to revise 

their SIPs to provide such authority (the 

‘‘GHG PSD SIP Call’’).5 EPA established 

a deadline of March 31, 2011, for 

Kentucky (including the entire State, 

except for the Louisville Metro Air 

Pollution Control District) to submit its 

GHG PSD SIP. Finally, in the most 

recent action, EPA proposed to 

implement a FIP authorizing PSD 

permitting for GHGs for those States that 

are unable to revise their SIPs to provide 

that authority by the applicable 

deadline (the ‘‘GHG PSD FIP’’).6 By a 

notice signed December 23, 2010, EPA 

finalized the FIP for seven States: 


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7While the transmittal letter for Kentucky’s 

submission (the subject of this action) is dated July 

15, 2010, EPA did not officially receive Kentucky’s 

request for parallel processing until August 5, 2010. 

8Although Kentucky’s August 5, 2010, draft SIP 

revision included provisions (i.e., 401 KAR 51:001 

Section 1(80)(b) and (c)) to incorporate changes 

pursuant to EPA’s Fugitive Emissions Rule (73 FR 

77882, December 19, 2008), the Commonwealth’s 

final submission did not include these provisions. 

Kentucky’s December 14, 2010, final SIP revision 

did include changes to exclude facilities that 

produce ethanol through a natural fermentation 

process from the definition of ‘‘chemical process 

plants’’ in the major NSR source permitting program 

(i.e., 401 KAR 51:001 Section 1 (118)). However, in 

today’s final rulemaking, EPA is not taking any 

action on Kentucky’s provisions to exclude 

facilities that produce ethanol through a natural 

fermentation process from the definition of 

‘‘chemical process plants’’ in the major NSR 

permitting program. 

9 Kentucky’s submittal also revises definitions for 

401 KAR 52:001—Definitions for 401 KAR Chapter 

52; however, these definitions relate to title V and 

are not included in the SIP. As such, EPA is not 

taking final action to approve Kentucky’s update to 

these definitions in this rulemaking. 

10 Kentucky’s final rule also eliminates the draft 

provisions (at 401 KAR 51:001 Section 1(80)(b) and 

(c) of the draft rule) that would have incorporated 

changes pursuant to EPA’s Fugitive Emissions Rule, 

73 FR 77882 (December 19, 2008). As explained in 

the proposal, 75 FR 68273, EPA did not propose to 

take action on those provisions because EPA has 

stayed the Fugitive Emissions Rule (and the 

associated amendments to 40 CFR part 51 and part 

52) until October 3, 2011, to allow the Agency time 

to propose, take comment and issue a final action 

regarding the inclusion of fugitive emissions in NSR 

applicability determinations. Therefore, Kentucky’s 

decision not to include those provisions in its final 

submittal has no impact on this action. 

Arizona, Arkansas, Florida, Idaho, 

Kansas, Oregon, and Wyoming. 

On August 5, 2010,7 in response to 

the Tailoring Rule and earlier GHGrelated EPA rules, and in anticipation of 

the GHG PSD SIP Call rulemaking, 

KDAQ submitted a draft revision to EPA 

for approval into the Kentucky SIP to: 

(1) Provide the Commonwealth with the 

authority to regulate GHGs under its 

PSD program; and (2) establish 

appropriate emission thresholds for 

determining which new or modified 

stationary sources become subject to 

Kentucky’s PSD permitting 

requirements for GHG emissions.8

Subsequently, on November 5, 2010, 

EPA published a proposed rulemaking 

to approve a portion of Kentucky’s 

August 5, 2010, SIP revision under 

parallel processing. 75 FR 68272. 

Specifically, Kentucky’s August 5, 2010, 

draft SIP revision includes changes to 

Kentucky’s Air Quality Regulations, 401 

KAR 51:001—Definitions for 401 KAR 

Chapter 51.9 The changes include 

incorporating by reference the Federal 

definition for ‘‘subject to regulation’’ (as 

amended in the Tailoring Rule at 

51.166(b)(48)) and revising the 

definition for ‘‘regulated NSR pollutant’’ 

to provide authority for the 

Commonwealth to regulate GHG and 

apply the Tailoring Rule’s thresholds for 

GHG permitting applicability. Detailed 

background information and EPA’s 

rationale for the proposed approval are 

provided in EPA’s November 5, 2010, 

Federal Register notice. 

EPA’s November 5, 2010, proposed 

approval was contingent upon the 

Commonwealth of Kentucky providing a 

final SIP revision that was substantively 

the same as the revision proposed for 

approval by EPA in the November 5, 

2010, proposed rulemaking. 75 FR 

68272. Kentucky provided its final SIP 

revision on December 13, 2010. While 

there are minor differences between the 

draft and final regulations, EPA has 

determined that these differences do not 

warrant re-proposal of this action. 

Kentucky’s draft regulations proposed 

some changes to certain definitions; 

however, Kentucky decided not to 

proceed with those changes and instead 

chose to retain the definitions set forth 

in Kentucky’s regulations. The 

definitions retained from the prior 

version of Kentucky’s regulations had 

previously been approved by EPA and 

incorporated into Kentucky’s SIP. 

Kentucky’s decision does not alter the 

portions of the SIP revision authorizing 

Kentucky to issue PSD permits 

governing GHGs and to implement the 

Tailoring Rule thresholds. Thus, EPA 

concludes that Kentucky’s decision to 

retain certain definitions provided in its 

regulations does not warrant a new 

public comment period prior to EPA’s 

final approval of the SIP revision.10

II. What is EPA’s response to comments 

received on this action? 

EPA received two sets of comments 

on the November 5, 2010, proposed 

rulemaking to approve revisions to 

Kentucky’s SIP. One set of comments, 

provided by the Sierra Club, was in 

favor of EPA’s November 5, 2010, 

proposed action. The other set of 

comments, provided by the Air 

Permitting Forum, raised concerns with 

final action on EPA’s November 5, 2010, 

proposed action. A full set of the 

comments provided by both the Sierra 

Club and Air Permitting Forum 

(hereinafter referred to as ‘‘the 

Commenter’’) is provided in the docket 

for today’s final action. A summary of 

the adverse comments and EPA’s 

responses are provided below. 

Generally, the adverse comments fall 

into six categories. First, the Commenter 

asserts that PSD requirements cannot be 

triggered by GHGs. Second, the 

Commenter objects to EPA’s 

interpretation of the Act that Kentucky 

will face a construction ban absent this 

SIP revision. Third, the Commenter 

asserts that EPA’s notice does not 

provide sufficient information on which 

particular regulatory provisions are 

proposed for approval in EPA’s 

November 5, 2010, proposed action. 

Fourth, the Commenter expresses 

concerns regarding a footnote in the 

November 5, 2010, proposal describing 

EPA’s previously announced intention 

to narrow its prior approval of some 

SIPs to ensure that sources with GHG 

emissions that are less than the 

Tailoring Rule’s thresholds will not be 

obligated under Federal law to obtain 

PSD permits prior to a SIP revision 

incorporating those thresholds. The 

Commenter explains that the planned 

SIP approval narrowing action is 

‘‘inapplicable to this action and, if 

applicable, is illegal.’’ Fifth, the 

Commenter states that EPA has failed to 

meet applicable statutory and executive 

order review requirements. Lastly, the 

Commenter states: ‘‘EPA should 

explicitly state in any final rule that the 

continued enforceability of these 

provisions in the Kentucky SIP is 

limited to the extent to which the 

Federal requirements remain 

enforceable.’’ EPA’s response to these 

six categories of comments is provided 

below. 

Comment 1: The Commenter asserts 

that PSD requirements cannot be 

triggered by GHGs. In its letter, the 

Commenter reiterates EPA’s statement 

that without the Tailoring Rule 

thresholds, PSD will apply as of January 

2, 2011, to all stationary sources that 

emit or have the potential to emit, 

depending on the source category, either 

100 or 250 tons of GHG per year. The 

Commenter also reiterates EPA’s 

statement that beginning January 2, 

2011, a source owner proposing to 

construct any new major source that 

emits at or higher than the GHG 

applicability levels, or modify any 

existing major source in a way that 

would increase GHG emissions, would 

need to obtain a PSD permit that 

addresses these emissions before 

construction could begin. In raising 

concerns with the two aforementioned 

statements, the Commenter states: ‘‘[n]o 

area in the Commonwealth of Kentucky 

has been designated attainment or 

unclassifiable for greenhouse gases 

(GHGs), as there is no national ambient 

air quality standard (NAAQS) for GHGs. 

Therefore, GHGs cannot trigger PSD 

permitting.’’ The Commenter notes that 

it made this argument in detail in 

comments submitted to EPA on the 

Tailoring Rule and other related GHG 

rulemakings. The Commenter attached 

those previously submitted comments to 

its comments on the proposed 


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rulemaking related to this action. 

Finally, the Commenter states that ‘‘EPA 

should immediately provide notice that 

it is now interpreting the Act not to 

require that GHGs trigger PSD and allow 

Kentucky to rescind that portion of its 

rules that would allow GHGs to trigger 

PSD.’’ 

Response 1: EPA established the 

requirement that PSD applies to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants, in 

earlier national rulemakings concerning 

the PSD program, and EPA has not reopened that issue in this rulemaking. In 

an August 7, 1980, rulemaking at 45 FR 

52676, 45 FR 52710–52712, and 45 FR 

52735, EPA stated that a ‘‘major 

stationary source’’ was one which 

emitted ‘‘any air pollutant subject to 

regulation under the Act’’ at or above the 

specified numerical thresholds; and 

defined a ‘‘major modification,’’ in 

general, as a physical or operational 

change that increased emissions of ‘‘any 

pollutant subject to regulation under the 

Act’’ by more than an amount that EPA 

variously termed as de minimis or 

significant. In addition, in EPA’s NSR 

Reform rule at 67 FR 80186 and 67 FR 

80240 (December 31, 2002), EPA added 

to the PSD regulations the new 

definition of ‘‘regulated NSR pollutant’’ 

(currently codified at 40 CFR 

52.21(b)(50) and 40 CFR 51.166(a)(49)); 

noted that EPA added this term based 

on a request from a commenter to 

‘‘clarify which pollutants are covered 

under the PSD program;’’ and explained 

that in addition to criteria pollutants for 

which a NAAQS has been established, 

‘‘[t]he PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS [new source 

performance standard] applicable to a 

previously unregulated pollutant.’’ Id. at 

67 FR 80240 and 67 FR 80264. Among 

other things, the definition of ‘‘regulated 

NSR pollutant’’ includes ‘‘[a]ny 

pollutant that otherwise is subject to 

regulation under the Act.’’ See 40 CFR 

52.21(b)(50)(d)(iv); see also id. 40 CFR 

51.166(a)(49)(iv). 

In any event, EPA disagrees with the 

Commenter’s underlying premise that 

PSD requirements are not triggered for 

GHGs when GHGs become subject to 

regulation as of January 2, 2011. As just 

noted, this has been well established 

and discussed in connection with prior 

EPA actions, including, most recently, 

the Johnson Reconsideration and the 

Tailoring Rule. In addition, EPA’s 

November 5, 2010, proposed rulemaking 

notice provides the general basis for the 

Agency’s rationale that GHGs (while not 

a NAAQS pollutant) can trigger PSD 

permitting requirements. The November 

5, 2010, notice also refers the reader to 

the preamble to the Tailoring Rule for 

further information on this rationale. In 

that rulemaking, EPA addressed at 

length the comment that PSD can be 

triggered only by pollutants subject to 

the NAAQS, and concluded such an 

interpretation of the Act would 

contravene Congress’ unambiguous 

intent. See 75 FR 31560–31562. Further 

discussion of EPA’s rationale for 

concluding that PSD requirements are 

triggered by non-NAAQS pollutants 

such as GHGs appears in the Tailoring 

Rule Response-to-Comments document 

(‘‘Prevention of Significant Deterioration 

and Title V GHG Tailoring Rule: EPA’s 

Response to Public Comments’’), pp. 34– 

41; and in EPA’s response to motions for 

a stay filed in the litigation concerning 

those rules (‘‘EPA’s Response to Motions 

for Stay,’’ Coalition for Responsible 

Regulation v. EPA, D. C. Cir. No. 09– 

1322 (and consolidated cases)), at pp. 

47–59, and are incorporated by 

reference here. These documents have 

been placed in the docket for today’s 

action. 

Comment 2: The Commenter raised 

concerns regarding EPA’s interpretation 

of the Act that Kentucky will face a 

construction ban absent this SIP 

revision. In its letter, the Commenter 

mentions that it provided comments on 

EPA’s GHG PSD SIP Call and GHG PSD 

FIP rulemakings expressing that ‘‘EPA’s 

interpretation of the Act to impose a 

construction ban based on Section 

165(a) is incorrect.’’ Further, the 

Commenter states: ‘‘No statutory 

language addressing implementation 

plan requirements can be construed to 

produce self-executing changes to SIPs 

or FIPs approved or promulgated under 

section 110 of the Act unless Congress 

enacts statutory provisions explicitly 

amending those SIPs or FIPs to 

incorporate new requirements, thereby 

obviating the need for rulemaking under 

section 110(a) or (c) of the Act to effect 

revisions to those implementation 

plans.’’ The Commenter also contends 

that there is no support for EPA’s 

‘‘permit moratorium’’ interpretation 

because (in the Commenter’s opinion) 

CAA section 165(a) is not self-executing 

and approved SIPs and promulgated 

FIPs can only be changed through 

section 110 rulemakings to revise those 

plans. In support of its position, 

Commenter cites to United States v. 

Cinergy Corp., No. 09–3344 (7th Cir. 

October 12, 2010). The Commenter 

further states that Kentucky would be 

able to issue PSD permits after January 

2, 2011, even without GHG limits, 

because its current SIP is approved and 

it would be acting consistent with that 

approved SIP. Further, the Commenter 

states that ‘‘EPA’s rule contemplated 

that states have 3 years to revise their 

SIPs when an NSR-related change 

occurs and, assuming without 

conceding that EPA could impose PSD 

on GHGs, EPA should have followed 

that procedure in this case.’’ 

Response 2: EPA notes that the 

Agency provided an extensive response 

in the final GHG SIP Call rulemaking to 

comments nearly identical to comments 

received on this rulemaking, 75 FR 

77698, and EPA incorporates by 

reference those responses, as contained 

in the preamble and the Tailoring Rule 

Response to Comment document, into 

this rulemaking. The following gives 

examples of references in the GHG SIP 

Call rulemaking preamble and record in 

which EPA responded to these, or 

substantially similar, comments: 

With respect to the comments that (i) 

‘‘EPA’s interpretation of the Act to 

impose a construction ban based on 

Section 165(a) is incorrect;’’ (ii) ‘‘No 

statutory language addressing 

implementation plan requirements can 

be construed to produce self-executing 

changes to SIPs or FIPs approved or 

promulgated under section 110 of the 

Act unless Congress enacts statutory 

provisions explicitly amending those 

SIPs or FIPs to incorporate new 

requirements, thereby obviating the 

need for rulemaking under section 

110(a) or (c) of the Act to effect revisions 

to those implementation plans;’’ and (iii) 

there is no support for EPA’s ‘‘permit 

moratorium’’ interpretation because (in 

the Commenter’s opinion) CAA section 

165(a) is not self-executing and 

approved SIPs and promulgated FIPs 

can only be changed through section 

110 rulemakings to revise those plans, 

see, for example, 75 FR 77705 in 

footnote 16, and 75 FR 77710–77711. 

EPA notes further that the requirement 

of CAA section 165(a)(1) that stationary 

sources that emit the requisite quantity 

of pollutants subject to regulation obtain 

a pre-construction permit is mandated 

by the CAA and is automatically 

updated to apply to any pollutant newly 

subject to regulation; thus, contrary to 

the commenter’s statement, EPA is not 

construing the CAA to ‘‘produce selfexecuting changes to SIPs * * *.’’ In 

addition, today’s action does not create 

what the Commenter calls a ‘‘permit 

moratorium’’; in fact today’s rule puts in 

place a permitting authority for GHGemitting sources for Kentucky only one 

day after GHG PSD permitting 

requirements go into effect. Further, no 

‘‘self-executing changes’’ to Kentucky’s 

SIP are made in today’s action; EPA is 

simply approving Kentucky’s submitted 


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December 13, 2010, SIP revision 

according to the proper process. 

With respect to the comment that a 

decision by Judge Posner (i.e., United 

States v. Cinergy Corp., No. 09–3344 

(7th Cir. October 12, 2010)) directly 

addresses this issue, see 75 FR 77705 in 

footnote 16. 

With respect to the comment that 

Kentucky would be able to issue PSD 

permits after January 2, 2011, even 

without GHG limits, because its current 

SIP is approved and it would be acting 

consistent with that approved SIP, EPA 

notes that it is true that Kentucky could 

issue such a permit to cover the nonGHG pollutants emitted by a source. If 

the source emits GHGs in at least the 

specified amount, however, then the 

source would need a PSD permit for its 

GHG emissions. Kentucky, absent an 

approved SIP revision applying the 

State’s PSD program to GHGs, would 

not have the authority to issue such a 

permit. 

With respect to the comment that 

‘‘EPA’s rule contemplated that States 

have 3 years to revise their SIPs when 

an NSR-related change occurs and, 

assuming without conceding that EPA 

could impose PSD on GHGs, EPA 

should have followed that procedure in 

this case,’’ see 75 FR 77707–77708. In 

any event, the proper length of time 

EPA must provide States to act is also 

irrelevant to this rule because this 

action deals with a SIP revision actually 

submitted by Kentucky to EPA for 

approval. 

Comment 3: The Commenter indicates 

that EPA’s proposed action on 

Kentucky’s draft rules is inconsistent 

with CAA section 110 because it does 

not provide for Federal notice and 

comment on the final State action. 

Response 3: EPA disagrees with the 

Commenter’s assertion that EPA’s 

proposed action is inconsistent with 

section 110 of the CAA because EPA’s 

proposed approval was based on a draft 

form of the Commonwealth’s 

regulations. As explained in our 

proposal at 75 FR 68273, EPA utilized 

a ‘‘parallel processing’’ procedure for 

this SIP revision. Under this procedure, 

EPA proposes rulemaking action 

concurrently with the State’s procedures 

for approving a SIP submittal and 

amending its regulations (40 CFR part 

51, appendix V, 2.3). EPA reviews that 

SIP submittal, even though the 

regulation is not yet adopted in final 

form by the State, as if it were a final, 

adopted regulation. In doing so, EPA 

evaluates the draft regulation against the 

same approvability criteria as any other 

SIP submittal. Thus, we have not used 

the ‘‘parallel processing’’ procedure to 

avoid any statutory requirements. In this 

case, as explained earlier in this notice, 

EPA has determined that the minor 

differences between the draft and final 

regulations are not significant and do 

not warrant re-proposal of this action. 

Accordingly, the proposal gave the 

public the appropriate opportunity to 

comment on the substance of the August 

5, 2010, SIP revision for which EPA is 

today issuing a final approval. 

Comment 4: The Commenter states 

that EPA’s proposed rulemaking does 

not provide sufficient information on 

which particular revisions are included 

in the November 5, 2010, proposed 

action. Specifically, the Commenter 

mentions that EPA does not provide 

citations or other explicit reference to 

what EPA is actually approving. The 

Commenter states that ‘‘this failure 

makes it impossible for the public to 

meaningfully assess and comment 

regarding the provisions on which EPA 

proposes to act.’’ Further, the 

Commenter explains that the docket 

contained over 100 pages of underline/ 

strikeout regulatory text, much of which 

is already in the Kentucky SIP. 

Response 4: EPA disagrees that the 

November 5, 2010, proposed rulemaking 

does not provide sufficient information 

on which particular regulatory 

provisions EPA was proposing for 

approval. To the contrary, in the section 

entitled ‘‘V. What is EPA’s Analysis of 

Kentucky’s Proposed SIP Revision?’’ of 

the November 5, 2010, proposal, EPA 

explains that the proposed rulemaking 

would approve changes to Kentucky’s 

regulations, at 401 KAR 51:001— 

Definitions for 401 KAR Chapter 51, 

including an update to the definition of 

‘‘subject to regulation’’ that provides the 

Commonwealth with authority to issue 

PSD permits governing GHGs and 

establishes appropriate GHG emission 

thresholds for PSD applicability. 75 FR 

68278. Additionally, EPA’s November 5, 

2010, notice identifies those portions of 

Kentucky’s submittal that are not being 

acted upon in this proceeding. See 75 

FR 68273 and 68278 n.10. Finally, as 

the Commenter notes, the docket for this 

action includes a marked up version of 

401 KAR 51:001—Definitions for 401 

KAR Chapter 51 showing the revisions 

under consideration. Thus, EPA 

sufficiently identified the particular SIP 

revisions at issue in this action. 

Comment 5: The Commenter 

expresses concerns regarding a footnote 

in which EPA describes its previously 

announced intention to narrow its prior 

approval of some SIPs to ensure that 

sources with GHG emissions that are 

less than the Tailoring Rule’s thresholds 

will not be obligated under Federal law 

to obtain PSD permits during any gap 

between when GHG permitting 

requirements go into effect and when 

the SIP is revised to incorporate the 

Tailoring Rule thresholds. The 

Commenter explains that narrowing is 

‘‘inapplicable to this action and, if 

applicable, is illegal.’’ 

Response 5: While EPA does not agree 

with the Commenter’s assertion that the 

narrowing approach discussed in EPA’s 

Tailoring Rule is illegal, EPA does 

acknowledge that the narrowing 

approach is inapplicable to the action 

that EPA is today taking for Kentucky’s 

December 13, 2010, SIP revision. In 

today’s final action, EPA is acting to 

approve a SIP revision submitted by 

Kentucky, and is not otherwise 

narrowing its approval of prior 

submitted and approved provisions in 

the Kentucky SIP. Accordingly, the 

legality of the narrowing approach is not 

at issue in this rulemaking. 

Comment 6: The Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Specifically, the 

Commenter refers to the statutory and 

executive orders for the Paperwork 

Reduction Act, the Regulatory 

Flexibility Act (RFA), Unfunded 

Mandates Reform Act, and Executive 

Order 13132 (Federalism). Additionally, 

the Commenter mentions that EPA has 

never analyzed the costs and benefits 

associated with triggering PSD for 

stationary sources in Kentucky, much 

less nationwide. 

Response 6: EPA disagrees with the 

Commenter’s statement that EPA has 

failed to meet applicable statutory and 

executive order review requirements. As 

stated in EPA’s proposed approval of 

Kentucky’s December 13, 2010, SIP 

revision, this action merely approves 

State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. Accordingly, EPA 

approval, in and of itself, does not 

impose any new information collection 

burden, as defined in 5 CFR 1320.3(b) 

and (c), that would require additional 

review under the Paperwork Reduction 

Act. In addition, this SIP approval will 

not have a significant economic impact 

on a substantial number of small 

entities, beyond that which would be 

required by the State law requirements, 

so a regulatory flexibility analysis is not 

required under the RFA. Accordingly, 

this rule is appropriately certified under 

section 605(b) of the RFA. Moreover, as 

this action approves pre-existing 

requirements under State law and does 

not impose any additional enforceable 

duty beyond that required by State law, 

it does not contain any unfunded 

mandates or significantly or uniquely 

affect small governments, such that it 


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81872 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

would be subject to the Unfunded 

Mandates Reform Act. Finally, this 

action does not have federalism 

implications that would make Executive 

Order 13132 applicable because it 

merely approves a State rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

In sum, today’s rule is a routine 

approval of a SIP revision, approving 

State law, and does not impose any 

requirements beyond those imposed by 

State law. To the extent these comments 

are directed more generally to the 

application of the statutory and 

executive order reviews to the required 

regulation of GHGs under PSD 

programs, these comments are irrelevant 

to the approval of State law in today’s 

action. However, EPA provided an 

extensive response to similar comments 

in promulgating the Tailoring Rule. EPA 

refers the Commenter to the sections in 

the Tailoring Rule entitled ‘‘VII. 

Comments on Statutory and Executive 

Order Reviews,’’ 75 FR 31601–31603, 

and ‘‘VI. What are the economic impacts 

of the final rule?,’’ 75 FR 31595–31601. 

EPA also notes that today’s action does 

not in-and-of itself trigger the regulation 

of GHGs. To the contrary, by putting in 

place higher PSD applicability 

thresholds for GHGs than would 

otherwise be in effect under the Act, 

this rulemaking, as well as EPA’s 

Tailoring Rule, provides relief to smaller 

GHG-emitting sources that would 

otherwise be subject to PSD permitting 

requirements for their GHG emissions. 

Comment 7: The Commenter states 

that ‘‘[i]f EPA proceeds with this action, 

it must condition approval on the 

continued validity of its determination 

that PSD can be triggered by or is 

applicable to GHGs.’’ Further, the 

Commenter remarks on the ongoing 

litigation in the U.S. Court of Appeals 

for the DC Circuit. Specifically, 

regarding EPA’s determination that PSD 

can be triggered by GHGs or is 

applicable to GHGs, the Commenter 

mentions that ‘‘EPA should explicitly 

state in any final rule that continued 

enforceability of these provisions in the 

Kentucky SIP is limited to the extent to 

which the Federal requirements remain 

enforceable.’’ The Commenter notes that 

if a stay is issued, these requirements 

should also be stayed. 

Response 7: EPA believes that it is 

most appropriate to take actions that are 

consistent with the Federal regulations 

that are in place at the time the action 

is being taken. To the extent that any 

changes to Federal regulations related to 

today’s action result from pending legal 

challenges or other actions, EPA will 

process appropriate SIP revisions in 

accordance with the procedures 

provided in the Act and EPA’s 

regulations. EPA notes that in an order 

dated December 10, 2010, the United 

States Court of Appeals for the DC 

Circuit denied motions to stay EPA’s 

regulatory actions related to GHGs. 

Coalition for Responsible Regulation, 

Inc. v. EPA, Nos. 09–1322, 10–1073, 10– 

1092 (and consolidated cases), Slip Op. 

at 3 (DC Cir. December 10, 2010) (order 

denying stay motions). 

III. What is the effect of today’s final 

action? 

Final approval of Kentucky’s 

December 13, 2010, SIP revision will 

make Kentucky’s SIP adequate with 

respect to PSD requirements for GHGemitting sources, thereby negating the 

need for a GHG PSD FIP. Furthermore, 

final approval of Kentucky’s SIP 

revision will put in place the GHG 

emission thresholds for PSD 

applicability set forth in EPA’s Tailoring 

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

ensuring that smaller GHG sources 

emitting less than these thresholds will 

not be subject to permitting 

requirements when these requirements 

begin applying to GHGs on January 2, 

2011. Pursuant to section 110 of the 

CAA, EPA is approving a portion of the 

changes made in Kentucky’s December 

13, 2010, proposed SIP revision into the 

Commonwealth’s SIP. 

The changes to Kentucky’s SIPapproved PSD program that EPA is 

approving today are to Kentucky’s rules 

which have been formatted to conform 

to Kentucky’s rule drafting standards for 

401 KAR 51:001—Definitions for 401 

KAR Chapter 51, but in substantive 

content the rules that address the 

Tailoring Rule provisions are the same 

as the Federal rules. As part of its 

review of the Kentucky submittal, EPA 

performed a line-by-line review of 

Kentucky’s proposed SIP changes and 

has determined that the provisions that 

EPA is approving today are consistent 

with the Tailoring Rule. Furthermore, 

EPA has determined that the December 

13, 2010, revision to Kentucky’s SIP is 

consistent with section 110 of the CAA. 

See, e.g., Tailoring Rule, at 75 FR 31561. 

IV. When is today’s action effective? 

EPA is making the effective date of 

today’s final action the same day as the 

Commonwealth’s effective date for its 

rulemaking. In accordance with 5 U.S.C. 

553(d), EPA finds there is good cause for 

this action to become effective on 

January 3, 2011. This is because a 

delayed effective date is unnecessary 

due to the nature of the 

Commonwealth’s changes to its PSD 

regulations, which provide the 

Commonwealth with the needed 

authority to regulate GHG-emitting 

sources for permitting purposes. 

Additionally, Kentucky’s changes to its 

PSD regulations to establish appropriate 

emissions thresholds for determining 

PSD applicability with respect to new or 

modified GHG-emitting sources in 

accordance with EPA’s Tailoring Rule, 

thereby relieving the Commonwealth 

from certain CAA requirements that 

would otherwise apply to it. The 

January 3, 2011, effective date for this 

action is authorized under both 5 U.S.C. 

553(d)(1), which provides that 

rulemaking actions may become 

effective less than 30 days after 

publication if the rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction,’’ and section 553(d)(3), 

which allows an effective date less than 

30 days after publication ‘‘as otherwise 

provided by the agency for good cause 

found and published with the rule.’’ The 

purpose of the 30-day waiting period 

prescribed in section 553(d) is to give 

affected parties a reasonable time to 

adjust their behavior and prepare before 

the final rule takes effect. Today’s rule, 

however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule provides sources 

emitting GHGs at or above the higher 

emissions thresholds with a permitting 

authority from which it can seek the 

permits which, prior to this rule, 

Federal and State law already required 

them to seek, and relieves the sources 

within the Commonwealth from 

considering the lower emissions 

thresholds for GHG permitting 

purposes. For these reasons, EPA finds 

good cause under 5 U.S.C. 553(d)(3) for 

this action to become effective January 

3, 2011. 

V. Final Action 

EPA is taking final action to approve 

the Commonwealth of Kentucky’s 

December 13, 2010, SIP revision, which 

includes updates to Kentucky’s air 

quality regulations, 401 KAR 51:001— 

Definitions for 401 KAR Chapter 51, 

relating to PSD requirements for GHGemitting sources. Significantly, 

Kentucky’s December 13, 2010, SIP 

revision: (1) Provides the 

Commonwealth with the authority to 

regulate GHGs under its PSD program, 

and (2) establishes appropriate 

emissions thresholds for determining 

PSD applicability with respect to new or 

modified GHG-emitting sources in 

accordance with EPA’s Tailoring Rule. 

EPA has made the determination that 

the December 13, 2010, SIP revision is 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81873 

approvable because it is in accordance 

with the CAA and EPA regulations, 

including regulations pertaining to PSD 

permitting for GHGs. 

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, 

provided that they meet the criteria of 

the CAA. Accordingly, this 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 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 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 State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 28, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: December 20, 2010. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

■ 2. In § 52.920(c) table 1 is amended by 

revising the entry for ‘‘401 KAR 51:001’’ 

to read as follows: 

§ 52.920 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 1—EPA–APPROVED KENTUCKY REGULATIONS

State citation Title/subject State effective date EPA approval date Explanation 

*******

Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards 

401 KAR 51:001 ............. Definitions for 401 KAR 

Chapter 51.

01/03/2011 12/29/2010 [Insert citation of publication].Except the phrase ‘‘except ethanol production facilities producing ethanol by natural fermentation under the North American Industry Classification System (NAICS) codes 325193 or 

312140,’’ in 401 KAR 51:001 Section 1 

(118)(a)(2)(a) and the phrase ‘‘except ethanol 

production facilities producing ethanol by natural fermentation under NAICS codes 325193 

or 312140,’’ in 401 KAR 51:001 Section 1 

(118)(3)(b)(20). 

*******


srobinson on DSKHWCL6B1PROD with RULES
81874 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

* * * * * 

[FR Doc. 2010–32664 Filed 12–28–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0107; FRL–9244–7] 

Action To Ensure Authority To Issue 

Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas 

Emissions: Finding of Failure To 

Submit State Implementation Plan 

Revisions Required for Greenhouse 

Gases 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is making a finding 

that seven states have failed to submit 

revisions to their EPA-approved state 

implementation plans (SIPs) to satisfy 

requirements of the Clean Air Act (CAA) 

to apply Prevention of Significant 

Deterioration (PSD) requirements to 

greenhouse gas (GHG)-emitting sources. 

By notice dated December 13, 2010, 

EPA issued a ‘‘SIP call’’ for these seven, 

and six other, states, requiring each state 

to revise its SIP as necessary to correct 

the SIP’s failure to apply PSD to such 

sources and establishing a SIP submittal 

deadline for each state. EPA established 

December 22, 2010, as the deadline for 

these seven states. By this action, EPA 

is making a finding that the seven states 

failed to submit the required SIP 

revisions by that date. This finding 

requires EPA to promulgate a Federal 

implementation plan (FIP) for these 

seven states applying PSD to GHGemitting sources, and EPA is taking a 

separate action to promulgate the FIP 

immediately. The seven states are 

Arizona, Arkansas, Florida, Idaho, 

Kansas, Oregon, and Wyoming. 

DATES: This action is effective on 

December 29, 2010. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2010–0107. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is 

(202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lisa Sutton, Air Quality Policy Division, 

Office of Air Quality Planning and 

Standards (C504–03), Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–3450; fax number: (919) 541– 

5509; e-mail address: 

sutton.lisa@epa.gov. 

For information related to a specific 

state, local, or tribal permitting 

authority, please contact the appropriate 

EPA regional office: 

EPA regional office Contact for regional office (person, mailing address, 

telephone number) Permitting authority 

I ............................................ Dave Conroy, Chief, Air Programs Branch, EPA Region 

1, 5 Post Office Square, Suite 100, Boston, MA 

02109–3912, (617) 918–1661.

Connecticut, Massachusetts, Maine, New Hampshire, 

Rhode Island, and Vermont. 

II ........................................... Raymond Werner, Chief, Air Programs Branch, EPA 

Region 2, 290 Broadway, 25th Floor, New York, NY 

10007–1866, (212) 637–3706.

New Jersey, New York, Puerto Rico, and Virgin Islands. 

III .......................................... Kathleen Cox, Chief, Permits and Technical Assessment Branch, EPA Region 3, 1650 Arch Street, 

Philadelphia, PA 19103–2029, (215) 814–2173.

District of Columbia, Delaware, Maryland, Pennsylvania, Virginia, and West Virginia. 

IV .......................................... Lynorae Benjamin, Chief, Regulatory Development 

Section, Air, Pesticides and Toxics Management Division, EPA Region 4, Atlanta Federal Center, 61 

Forsyth Street, SW., Atlanta, GA 30303–3104, (404) 

562–9033.

Alabama, Florida, Georgia, Kentucky, Mississippi, North 

Carolina, South Carolina, and Tennessee. 

V ........................................... J. Elmer Bortzer, Chief, Air Programs Branch (AR–18J), 

EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604–3507, (312) 886–1430.

Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. 

VI .......................................... Jeff Robinson, Chief, Air Permits Section, EPA Region 

6, Fountain Place 12th Floor, Suite 1200, 1445 Ross 

Avenue, Dallas, TX 75202–2733, (214) 665–6435.

Arkansas, Louisiana, New Mexico, Oklahoma, and 

Texas. 

VII ......................................... Mark Smith, Chief, Air Permitting and Compliance 

Branch, EPA Region 7, 901 North 5th Street, Kansas 

City, KS 66101, (913) 551–7876.

Iowa, Kansas, Missouri, and Nebraska. 

VIII ........................................ Carl Daly, Unit Leader, Air Permitting, Monitoring & 

Modeling Unit, EPA Region 8, 1595 Wynkoop Street, 

Denver, CO 80202–1129, (303) 312–6416.

Colorado, Montana, North Dakota, South Dakota, Utah, 

and Wyoming. 

IX .......................................... Gerardo Rios, Chief, Permits Office, EPA Region 9, 75 

Hawthorne Street, San Francisco, CA 94105, (415) 

972–3974.

Arizona; California; Hawaii and the Pacific Islands; Indian Country within Region 9 and Navajo Nation; and 

Nevada. 

X ........................................... Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA Region 10, 1200 Sixth Avenue, 

Suite 900, Seattle, WA 98101, (206) 553–6908.

Alaska, Idaho, Oregon, and Washington. 


srobinson on DSKHWCL6B1PROD with RULES