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[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Proposed Rules]               
[Page 16388-16391]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-28]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-1014-201002; FRL-9133-1]

 
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.

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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 Rule--
Phase 2 (hereafter referred to as the ``Ozone Implementation 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 Rule''.)

DATES: Comments must be received on or before May 3, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-1014, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: benjamin.lynorae@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2009-1014, 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.

[[Page 16389]]

    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 are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2009-1014.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: 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; e-mail 
address: bradley.twunjala@epa.gov. For information regarding NSR, 
contact Ms. Yolanda Adams, Air Permits Section, at the same address 
above. Telephone number: (404) 562-9214; e-mail address: 
adams.yolanda@epa.gov. 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.jane@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Proposing Today?
II. What Is the Background for the Action That EPA Is Proposing To 
Take Today?
III. 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 51--401 KAR 51:001 ``Definitions for 401 
KAR Chapter 51,'' 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.'' 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 plants'' that 
produce ethanol through a natural fermentation process from the NSR 
major source permitting requirements. Pursuant to section 110 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.

II. 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 EPA's 
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

[[Page 16390]]

the 1997 8-hour ozone NAAQS transition. Specific to this rulemaking, 
the Phase 2 Rule made changes to Federal regulations 40 CFR 51.165 and 
51.166, which govern the NNSR and PSD permitting 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 51.165, 51.166, 52.21, 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.''

III. 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 EPA's 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 51:001 ``Definitions for 401 KAR Chapter 51,'' 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.'' The revision became state-effective on February 5, 2010. 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 51.166.
    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.\1\ 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.
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    \1\ On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 CFR parts 51 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 31, 2002, 
final rule changes. The December 31, 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.
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IV. Proposed Action

    Pursuant to section 110 of the CAA, EPA is proposing to approve 
Kentucky's SIP revision, submitted February 5, 2010, 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 consistent 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 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 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.

[[Page 16391]]

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. 7401 et seq.

    Dated: March 17, 2010.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
[FR Doc. 2010-7319 Filed 3-31-10; 8:45 am]
BILLING CODE 6560-50-P
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