ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-R04-OAR-2009-1014-201002; FRL- ] 

Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky: 

Prevention of Significant Deterioration and Nonattainment New Source Review Rules: 

Nitrogen Oxide as Precursor to Ozone. 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve a revision to Kentucky's State Implementation Plan 

(SIP), submitted by the Kentucky Energy and Environment Cabinet, through the Kentucky 

Division of Air Quality (KDAQ) to EPA on February 5,2010. The proposed revision modifies 

Kentucky's prevention of significant deterioration (PSD) and nonattainment new source review 

(NNSR) permitting regulations in the SIP to address permit requirements promulgated in the 

1997 8-Hour Ozone National Ambient Air Quality Standards (NAAQS) Implementation RulePhase 2 (hereafter referred to as the "Ozone Implemqntation NSR Update"). The Ozone 

Implementation NSR Update revised permit requirements relating to the implementation of the 

1997 8-hour ozone NAAQS specifically incorporating nitrogen oxides (NOx) as a precursor to 

ozone. The proposed revision also includes provisions addressing permit requirements 

promulgated by EPA on May 1,2007, which exclude from the NSR major source permitting 

requirements "chemical process plants" that produce ethanol through a natural fermentation 

process (hereafter referred to as the "Ethanol Rule7'.) 
DATES: Comments must be received on or before [insert date 30 days after date of publication 

in the Federal Register]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009- 

10 14, by one of the following methods: 

1. www.regulations.g;ov: Follow the on-line instructions for submitting comments. 

2. E-mail: beni amin.lynorae@,eva. gov. 

3. Fax: (404) 562-9019. 

4. Mail: EPA-R04-OAR-2009-10 14, Regulatory Development Section, Air Planning 

Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection 

Agency, Region 4,61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. 

5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, Regulatory Development 

Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 

Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 

30303-8960. Such deliveries we only accepted during the Regional Office's normal 

hours of operation. The Regional Office's official hours of business are Monday through 

Friday, 8:3 0 to 4:3 0, excluding federal holidays. 

Instructions: Direct your comments to Docket ID No. ccEPA-R04-OAR-2009-1014." EPA's 

policy is that all comments received will be included in the public docket without change and 

may be made available online at www.remlations.e;ov, including any personal information 
provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

through www.regulations.aov or e-mail, information that you consider to be CBI or otherwise ' 

protected. The www.regulations.nov website is an "anonymous access" system, which means 

EPA will not know your identity or contact information unless you provide it in the body of your 

comment. If you send an e-mail comment directly to EPA without going through 

www.re~ulations.~ov, your e-mail address will be automatically captured and included as part of 

the comment that is placed in the public docket and made available on the Internet. If you 

submit an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 

cannot read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of special 

characters, any form of encryption, and be free of any defects or viruses. For additional 

information about EPA's public docket visit the EPA Docket Center homepage at 

htt~:llwww.epa.gov/epahome/dockets.htm. 

Docket: All documents in the electronic docket are listed in the www.reaulations.gov index. 

Although listed in the index, some information is not publicly available, i.e., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 

material, is not placed on the Internet and will be publicly available only in hard copy form. 

Publicly available docket materials are available either electronically in www.reaulations.g;ov or 
in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 

Street, SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the 

person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your 

inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 

4:30, excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 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. Telephone number: (404) 562-9352; email address: bradle~.twuniala@epa.nov. For information regarding NSR, contact Ms. Yolanda 

Adams, Air Permits Section, at the same address above. Telephone number: (404) 562-9214; email address: adarns.volanda@e~a.~ov. For information regarding 8-hour ozone NAAQS, 

contact Ms. Jane Spann, Regulatory Development Section, at the same address above. 

Telephone number: (404) 562-9029; e-mail address: spann.iane@,e~a.~ov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Action is EPA Proposing Today? 

11. What is the Background for the Action that EPA is Proposing to Take Today? 
111. What is EPA's Analysis of Kentucky's SIP Revision? 

IV. Proposed Action 

V. Statutory and Executive Order Reviews. 

I. What Action is EPA Proposing today? 

The Commonwealth of Kentucky, through KDAQ, submitted a revision on February 5, 

2010, to the Kentucky SIP which relates to Kentucky's Air Quality Regulations, Chapter 5 1 - 

401 KAR 5 1 :001 "Definitions for 401 KAR Chapter 51," 401 KAR 5 1 :017 "Prevention of 

Significant Deterioration of Air Quality," and 401 KAR 5 1 :052 "Review of New Sources in or 

Impacting upon Nonattainment Areas." The SIP revision addresses the Ozone Implementation 

NSR Update requirements for Kentucky to include NOx as an ozone precursor for permitting 

purposes. Specifically, the Ozone Implementation NSR Update requirements included changes 

to major source thresholds for sources in certain classes of nonattainment areas, changes to offset 

ratios for marginal, moderate, serious, severe, and extreme ozone nonattainment areas, 

provisions addressing offset requirements for facilities that shut down or curtail operation, and a 

requirement stating that NOx emissions are ozone precursors. The proposed revision also 

includes provisions for excluding "chemical process plants7' that produce ethanol through a 

natural fermentation process from the NSR major source permitting requirements. Pursuant to 

section 1 10 of the Clean Air Act (CAA or Act), EPA is proposing to approve these revisions into 

the Kentucky SIP. 

Additionally, the rule revision provided in Kentucky's February 5,2010, submittal 
updates Kentucky's PSD and NSR permitting regulations to make them consistent with changes 

to the Federal regulations by removing the existing standards and requirements for clean units 

(CU) and pollution control projects (PCP). However, EPA is not taking action on the Kentucky 

rule updates regarding CU and PCP because these portions of Kentucky's rule are specifically 

not approved into Kentucky's federally-approved SIP. 

11. What is the Background for the Action that EPA is Proposing to Take Today? 

On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of 0.08 parts per 

million - also referred to as the 1997 8-hour ozone NAAQS. On April 30,2004, EPA designated 

areas as attainment, nonattainment and unclassifiable for the 1997 8-hour ozone NAAQS. As 

part of the 2004 designations, EPA also promulgated an implementation rule for the 1997 8-hour 

ozone NAAQS in two phases. Phase 1 of EPA7s 1997 8-hour ozone implementation rule (Phase 

1 Rule), published on April 30,2004, effective on June 15,2004, provided the implementation 

requirements for designating areas under subpart 1 and subpart 2 of the CAA (69 FR 23857). 

On November 29,2005, EPA promulgated the second phase for implementation 

provisions related to the 1997 8-hour ozone standards - also known as the Phase 2 Rule (70 FR 

71612). The Phase 2 Rule addressed control and planning requirements as they applied to areas 

designated nonattainment for the 1997 8-hour ozone NAAQS such as reasonably available 

control technology, reasonably available control measures, reasonable further progress, modeling 

and attainment demonstrations and NSR, and the impact to reformulated gas for the 1997 8-hour 

ozone NAAQS transition. Specific to this rulemaking, the Phase 2 Rule made changes to 

Federal regulations 40 CFR 5 1.165 and 5 1.166, which govern the NNSR and PSD permitting 

6 
programs. Pursuant to these changes, states were required to submit SIP revisions incorporating 

NOx as an ozone precursor by no later than June 15,2007. Kentucky's February 5,2010, SIP 

submission (the subject of this action) addresses the state requirement to adopt provisions to 

include NOx as a precursor for ozone for PSD and NNSR permitting purposes. 

In addition, on May 1,2007, EPA promulgated revisions to the PSD and NNSR 

regulations to address applicability of permitting requirements for "chemical process plants" (72 

FR 24059). The revisions to 40 CFR 5 l.l65,5 1.1 66, 52.2 1, and Appendix S, define "chemical 

process plants" under the regulatory definition of "major stationary source" to exclude ethanol 

manufacturing facilities that produce ethanol by natural fermentation processes. Kentucky's 

February 5,2010, SIP submission addresses these minimum program elements of the PSD and 

NNSR programs for "chemical processing plants." 

111. What is EPA's Analysis of Kentucky's SIP Revision? 

On February 5,2010, the Commonwealth of Kentucky submitted a revision to EPA for 

approval which revised the Commonwealth's permitting provisions to adopt EPA7s federal 

regulations specified in the Ozone Implementation NSR Update relating to the incorporation of 

NOx as an ozone precursor and to address permitting requirements specified in EPA's Ethanol 

Rule. Specifically, the revision relates to Kentucky's Air Quality Regulations, Chapter 51 - 401 

KAR 5 1 :001 "Definitions for 401 KAR Chapter 5 1 ," 40 1 KAR 5 1 :017 "Prevention of 

Significant Deterioration of Air Quality," and 401 KAR 5 1 :052 "Review of New Sources in or 

Impacting upon Nonattainment Areas." The revision became state-effective on February 5, 
20 10. The submittal revised Kentucky's PSD and NNSR permit programs to make them 

consistent with changes to the Federal regulations set forth in the Ozone Implementation NSR 

Update. These changes include changes to major source thresholds for sources in certain classes 

of nonattainment areas, changes to offset ratios for marginal, moderate, serious, severe, and 

extreme ozone nonattainment areas, provisions addressing offset requirements for facilities that 

shut down or curtail operation, and a requirement stating that NOx emissions are ozone 

precursors. In addition, the submittal revised Kentucky's PSD and NNSR permit programs to 

make them consistent with changes to the Federal regulations set forth in EPA's Ethanol Rule.' 

These changes include changes to the regulatory definition of "major stationary source" to 

exclude ethanol manufacturing facilities that produce ethanol by natural fermentation processes. 

These changes affect both the applicability threshold and whether this industry must count 

fugitive emissions in determining its major source status. 

The revision included in Kentucky's PSD and NNSR programs are substantively the same 

as the Ozone Implementation NSR Update and the Ethanol Rule. The Kentucky rules have been 

formatted to conform to Kentucky rule drafting standards (KRS Chapter 13A), but in substantive 

content the rules are the same as the Federal rules. As part of its review of the Kentucky 

submittal, EPA performed a line-by-line review of the proposed revisions and has determined 

that they are consistent with the permit program requirements for NSR, set forth at 40 CFR 

51.165 and 5.1.166. 

Kentucky's February 5,2010, SIP submission providing the PSD and NNSR rule 

revisions also includes the removal of provisions that were vacated by the United States Court of 
Appeals for the District of Columbia circuit'. Since EPA did not take action on Kentucky's SIP 

with regard to the vacated portions (i.e., these provisions were not incorporated into the 

federally-approved SIP), EPA is not taking action through this rulemaking on the removal of 

these provisions as provided in Kentucky's February 5,2010, submittal. 

IV. Proposed Action 

Pursuant to section 1 10 of the CAA, EPA is proposing to approve Kentucky's SIP 

revision, submitted February 5,201 0, which incorporates NOx as an ozone precursor for 

permitting purposes into the Kentucky SIP, and addresses major source applicability for ethanol 

manufacturing facilities. EPA is proposing to approve these revisions because they are 

cqnsistent with the CAA, and EPA regulation and policy. 

V. Statutory and Executive Order Reviews. 

Under the CAA, the Administrator is required to approve a SIP submission that complies 

with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 

52,02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided 

that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state 

' On December 3 1,2002 (67 FR 80 186), EPA published final rule changes to 40 CFR parts 5 1 and 52, 

regarding the CAA's PSD and NNSR programs. On November 7,2003 (68 FR 63021), EPA published a notice of 

final action on the reconsideration of the December 3 1,2002, final rule changes. The December 3 I, 2002, and the 

November 7,2003, final actions are collectively referred to as the "2002 NSR Reform Rules." On June 24,2005, 

the United States Court of Appeals for the DC Circuit Court vacated portions of the 2002 NSR Reform Rules 

pertaining to CU and PCP. 
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 Order 12866 (58 FR 5 1735, 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 (Public Law 

104-4); 

does not have Federalism implications as specified in Executive Order 13 132 (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 1321 1 (66 FR 28355, 

May 22,200 1); 

is not subject to requirements of Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (1 5 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, 

10 
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 

13 175 (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. 
List of Subjects in 40 CFR Part 52 

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental 

relations, Nitrogen oxide, Ozone, Reporting and recordkeeping requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 740 1 et seq. 

Dated; HAR 1 7 2010 

BeverJy H. aqiste; Acting Reg~onal ~&mmstrator, 

Region 4.