Federal Register / Vol. 79, No. 212 / Monday, November 3, 2014 / Rules and Regulations 65143 

1On January 22, 2013, D.C. Circuit granted a 

request from EPA to vacate and remand to the 

Agency the portions of the October 20, 2010 rule 

addressing the SILs for PM2.5, except for the parts 

codifying the PM2.5 SILs in the NSR rule at 40 CFR 

51.165(b)(2), so that the EPA could voluntarily 

correct an error in the provisions. See Sierra Club 

v. EPA, 705 F.3d 458 at 463–66 (D.C. Cir. 2013). The 

Court also vacated parts of the PM2.5 PSD 

Increment-SILs-SMC Rule establishing the PM2.5

SMC, finding that the Agency had exceeded its 

statutory authority with respect to these provisions. 

Id at 469. On December 9, 2013, EPA issued a final 

rulemaking to remove the vacated and remanded 

PM2.5 SILs and the vacated PM2.5 SMC provisions 

from 40 CFR 51.166 and 52.21. See 78 FR 73698. 

end of the effective period of this 

temporary deviation. This deviation 

from the operating regulations is 

authorized under 33 CFR 117.35. 

Dated: October 22, 2014. 

D.H. Sulouff, 

District Bridge Chief, Eleventh Coast Guard 

District. 

[FR Doc. 2014–26088 Filed 10–31–14; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2013–0486; FRL–9918–68– 

Region–4] 

Approval and Promulgation of 

Implementation Plans; Commonwealth 

of Kentucky: New Source Review for 

Fine Particulate Matter 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve a revision to the Kentucky State 

Implementation Plan (SIP), submitted 

by the Commonwealth of Kentucky, 

through the Kentucky Division for Air 

Quality (KDAQ) to EPA on January 31, 

2013. The SIP revision modifies the 

Commonwealth’s New Source Review 

(NSR), Prevention of Significant 

Deterioration (PSD), and Nonattainment 

New Source Review (NNSR) regulations 

to adopt into the Kentucky SIP Federal 

NSR permitting requirements for the 

implementation of the fine particulate 

matter (PM2.5) national ambient air 

quality standards (NAAQS). The 

approved changes in Kentucky’s January 

31, 2013, SIP submission are necessary 

to comply with Federal requirements. 

EPA is approving the Commonwealth’s 

January 31, 2013, revision to the 

Kentucky SIP because the Agency has 

determined that the changes are 

consistent with the Clean Air Act (CAA 

or Act). Additionally, EPA is converting 

two conditional approvals related to the 

PSD infrastructure requirements for the 

1997 and 2006 PM2.5, and 2008 8-hour 

Ozone NAAQS to full approval under 

the CAA. 

DATES: This rule will be effective 

December 3, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR–

2013–0486. All documents in the docket 

are listed on the 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 

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 a.m. to 

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

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Kentucky SIP, 

contact Mr. David (Brad) Akers, 

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) 562–9089; 

email address: akers.david@epa.gov. For 

information regarding NSR, contact Ms. 

Yolanda Adams, Air Permits Section, at 

the same address above. Telephone 

number: (404) 562–9214; email address: 

adams.yolanda@epa.gov. For 

information regarding PM2.5 NAAQS, 

contact Mr. Joel Huey, Regulatory 

Development Section, at the same 

address above. Telephone number: (404) 

562–9104; email address: huey.joel@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

EPA is taking final action to approve 

the Commonwealth of Kentucky’s 

January 31, 2013, SIP revision to adopt 

Federal requirements for NSR 

permitting. The Commonwealth’s SIP 

revision makes changes to the 

regulations in Kentucky’s Air Quality 

Regulations, 401 Kentucky Air 

Regulations (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 to 

adopt NSR requirements related to the 

implementation of the PM2.5 NAAQS as 

promulgated in the rulemakings entitled 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers,’’ 

Final Rule, 73 FR 28321 (May 16, 2008) 

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

Rule’’) and ‘‘Prevention of Significant 

Deterioration (PSD) for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5)—Increments, Significant Impact 

Levels (SILs) and Significant Monitoring 

Concentration (SMC),’’ Final Rule, 75 

FR 64864 (October 20, 2010) (hereafter 

referred to as the ‘‘PM2.5 PSD 

Increments-SILs-SMC Rule’’). The 

Commonwealth must make this SIP 

revision to comply with Federal NSR 

permitting regulations at 40 CFR 51.166 

and 51.165. Originally, the 

Commonwealth included SILs and SMC 

thresholds in the January 31, 2013, SIP 

submission, consistent with the October 

20, 2010, PM2.5 PSD Increments-SILsSMC Rule. However, EPA cannot act on 

SILs or SMC provisions due to the 

January 22, 2013, decision by the D.C. 

Circuit Court of Appeals vacating the 

portions of the PM2.5 PSD IncrementSILs-SMC Rule addressing the SMC and 

SILs (and remanding the SILs portion to 

EPA for further consideration).1 See 

Sierra Club v. EPA, 705 F.3d 458 (D.C. 

Cir. 2013). Accordingly, Kentucky has 

since submitted a letter to EPA dated 

July 22, 2014, requesting that the SILs 

and SMC provisions from the January 

31, 2013, SIP submission be withdrawn 

from EPA consideration; therefore these 

provisions are no longer before EPA for 

consideration. The letter can be found 

in Docket ID: EPA–R04–OAR–2013– 

0486. 

Additionally, the Commonwealth’s 

January 31, 2013, SIP submission 

satisfies EPA’s multiple conditional 

approvals of the PSD-related 

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

110(a)(2)(D)(i)(II) and 110(a)(2)(J) of 

Kentucky’s infrastructure SIPs for the 

1997 and 2006 PM2.5, and 2008 8-hour 

Ozone NAAQS. As a result, EPA is 

acting to convert from conditional 

approval to full approval KDAQ’s 

infrastructure requirements related to its 

PSD program. 

On July 23, 2014, EPA published a 

proposed rulemaking to approve the 

aforementioned changes to the 

Commonwealth’s NSR program at 401 


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65144 Federal Register / Vol. 79, No. 212 / Monday, November 3, 2014 / Rules and Regulations 

2The Commonwealth’s January 31, 2013 SIP 

submission did not adopt the NNSR interpollutant 

offset trading provisions EPA codified at 

51.165(a)(11). The preferred trading ratios 

announced in the rule preamble were the subject of 

a petition to reconsider which was granted by the 

Administrator. As a result of the reconsideration, 

EPA issued a memorandum on June 20, 2011, 

providing that the ratios were no longer supported 

by the agency as being presumptively approvable 

for adoption in SIP’s containing NNSR programs for 

PM2.5. See EPA’s June 20, 2011 Memorandum 

entitled ‘‘Revised Policy to Address 

Reconsideration of Interpollutant Trading 

Provisions for Fine Particles (PM2.5)’’ at http://

www.epa.gov/nsr/guidance.html. 

3The Natural Resources Defense Council, Sierra 

Club, American Lung Association, and Medical 

Advocates for Healthy Air challenged before the 

D.C Circuit EPA’s April 25, 2007 (72 FR 20586) 

Rule entitled ‘‘Clean Air Fine Particle 

Implementation Rule,’’ that established detailed 

implementation regulations to assist states with the 

development of SIPs to demonstrate attainment for 

the 1997 annual and 24-hour PM2.5 NAAQS and the 

separate May 16, 2008 NSR PM2.5 Rule (the subject 

of today’s proposed rulemaking). Today’s final 

rulemaking only pertains to the impacts of the 

court’s decision on the May 16, 2008 NSR PM2.5

Rule and not the April 25, 2007 implementation 

rule as the Commonwealth’s January 31, 2013 SIP 

revision adopts the NSR permitting provisions 

established in the NSR PM2.5 Rule. 

4 ‘‘Clean Air Fine Particle Implementation Rule’’ 

(hereafter referred to as the 2007 Rule); Final Rule, 

72 FR 20586 (April 25, 2007). 

5The final rule is entitled ‘‘Identification of 

Nonattainment Classification and Deadlines for 

Submission of State Implementation Plan (SIP) 

Provisions for the 1997 Fine Particle (PM2.5) 

National Ambient Air Quality Standard (NAAQS) 

and 2006 PM2.5 NAAQS.’’ This final rule also 

identifies the initial classification of current 1997 

and 2006 PM2.5 nonattainment areas as moderate 

and the EPA guidance and relevant rulemakings 

that are currently available regarding 

implementation of subpart 4 requirements. 

KAR 51:001, 401 KAR 51:017 and 401 

KAR 51:052, and to convert multiple 

conditional approvals for the 

Commonwealth’s infrastructure SIP for 

the 1997 and 2006 PM2.5, and 2008 8- 

hour Ozone NAAQS. See 79 FR 42745. 

Comments on the proposed rulemaking 

were due on or before August 22, 2014. 

No comments, adverse or otherwise, 

were received on EPA’s July 23, 2014, 

proposed rulemaking. Pursuant to 

section 110 of the CAA, EPA is now 

taking final action to approve the 

changes to the Commonwealth’s NSR 

program as provided in EPA’s July 23, 

2014, proposed rulemaking. EPA’s July 

23, 2014, proposed rulemaking contains 

more detailed information regarding the 

Commonwealth’s SIP revision being 

approved today, and the rationale for 

today’s final action. Detailed 

information regarding the PM2.5 NAAQS 

and NSR Program can also be found in 

EPA’s July 23, 2014, proposed 

rulemaking as well as the 

aforementioned final rulemakings. See 

79 FR 42745 (July 23, 2014), 73 FR 

28321 (May 16, 2008) and 75 FR 64864 

(October 20, 2010), respectively. 

A. NSR PM2.5 Implementation Rule 

On May 16, 2008, EPA finalized the 

NSR PM2.5 Rule to implement the PM2.5

NAAQS for the NSR permitting 

program. See 73 FR 28321. The NSR 

PM2.5 Rule revised the Federal NSR 

program requirements to establish the 

framework for implementing 

preconstruction permit review for the 

PM2.5 NAAQS in both attainment areas 

and nonattainment areas (NAAs) that: 

(1) Required NSR permits to address 

directly emitted PM2.5 and certain 

precursor pollutants; (2) established 

significant emission rates for direct 

PM2.5 and precursor pollutants 

(including sulfur dioxide (SO2) and 

nitrogen oxides (NOx)); (3) established 

NNSR PM2.5 emission offsets; and (4) 

required states to account for gases that 

condense to form particles 

(condensables) in PM2.5 and PM10

applicability determinations and 

emission limits in PSD and NNSR 

permits; and (5) provided a 

grandfathering provision in the federal 

program for certain pending PM2.5

permit applications. Additionally, the 

NSR PM2.5 Rule authorized states to 

adopt provisions in their NNSR rules 

that would allow interpollutant offset 

trading.2 The Commonwealth’s January 

31, 2013, SIP revision addresses a 

portion of the PSD and NNSR 

provisions established in EPA’s May 16, 

2008 NSR PM2.5 Rule. 

1. PM2.5 Implementation Rule(s) 

Litigation 

On January 4, 2013, the United States 

Court of Appeals for the District of 

Columbia Circuit issued a judgment 3

that remanded EPA’s April 25, 2007 4

and May 16, 2008 PM2.5 implementation 

rules implementing the 1997 PM2.5

NAAQS. See Natural Resources Defense 

Council v. EPA, 706 F.3d 428 (D.C. Cir. 

2013). The court found that because the 

statutory definition of PM10 (see section 

302(t) of the CAA) included particulate 

matter with an aerodynamic diameter 

less than or equal to 10 micrometers, it 

necessarily includes PM2.5. EPA had 

developed the 2007 and 2008 (or NSR 

PM2.5 Rule) rules consistent with the 

general NAA requirements of subpart 1 

of Part D, title I, of the CAA. Relative to 

subpart 1, subpart 4 of Part D, title I 

includes additional provisions that 

apply to PM10 NAA and is more specific 

about what states must do to bring areas 

into attainment. In particular, subpart 4 

includes section 189(e) of the CAA, 

which requires the control of major 

stationary sources of PM10 precursors 

(and hence under the court decision, 

PM2.5 precursors) ‘‘except where the 

Administrator determines that such 

sources do not contribute significantly 

to PM10 levels which exceed the 

standard in the area.’’ The court ordered 

EPA to repromulgate the 

implementation rules pursuant to 

subpart 4. 

Subpart 4 pertains exclusively to 

particulate matter NAA, and the Court 

did not address EPA’s implementation 

of the PM2.5 NAAQS under part C or the 

PSD program. Thus, EPA does not 

interpret the court’s decision as 

affecting implementation of the PSD 

requirements established in the May 16, 

2008 NSR PM2.5 Rule and does not 

anticipate the need to revise any PSD 

requirements promulgated in the NSR 

PM2.5 Rule in order to comply with the 

court’s decision. 

On June 2, 2014, EPA published a 

final rule 5 which, in part, sets a 

December 31, 2014 deadline for states to 

make any remaining required 

attainment-related and NNSR SIP 

submissions, pursuant to and 

considering the application of subpart 4. 

See 79 FR 31566. The Court’s January 4, 

2013 decision can be found in the 

docket for today’s final rulemaking 

using Docket ID: EPA–R04–OAR–2013– 

0486. 

2. ‘‘Condensable PM’’ Correction 

In the NSR PM2.5 Rule, EPA revised 

the definition of ‘‘regulated NSR 

pollutant’’ for PSD to add a paragraph 

providing that ‘‘particulate matter (PM) 

emissions, PM2.5 emissions and PM10

emissions shall include gaseous 

emissions from a source or activity 

which condense to form particulate 

matter at ambient temperatures’’ and 

that on or after January 1, 2011, ‘‘such 

condensable particulate matter shall be 

accounted for in applicability 

determinations and in establishing 

emissions limitations for PM, PM2.5 and 

PM10 in permits.’’ See 73 FR 28321 at 

28348. A similar paragraph added to the 

NNSR rule does not include ‘‘particulate 

matter (PM) emissions.’’ See 40 CFR 

51.165(a)(1)(xxxvii)(D). 

On October 25, 2012, EPA took final 

action to amend the definition of 

‘‘regulated NSR pollutant’’ promulgated 

in the NSR PM2.5 Rule regarding the PM 

condensable provision at 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(i) and 

EPA’s Emissions Offset Interpretative 

Ruling. See 77 FR 65107. The 

rulemaking removed the inadvertent 

requirement in the NSR PM2.5 Rule that 

the measurement of condensable 

particulate matter be included as part of 

the measurement and regulation of 

‘‘particulate matter emissions.’’ The 

term ‘‘particulate matter emissions’’ 


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Federal Register / Vol. 79, No. 212 / Monday, November 3, 2014 / Rules and Regulations 65145 

6 In addition to the NSPS for PM, it is noted that 

states regulated ‘‘particulate matter emissions’’ for 

many years in their SIPs for PM, and the same 

indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

7Section 169(4) of the CAA provides that the 

baseline concentration of a pollutant for a particular 

baseline area is generally the air quality at the time 

of the first application for a PSD permit in the area. 

8For purposes of calculating increment 

consumption, a baseline area for a particular 

pollutant includes the attainment or unclassifiable 

area in which the source is located as well as any 

other attainment or unclassifiable area in which the 

source’s emissions of that pollutant are projected 

(by air quality modeling) to result in an ambient 

pollutant increase of at least 1 microgram per meter 

cubed (mg/m3) (annual average). See 40 CFR 

52.21(b)(15)(i). 

9EPA generally characterized the PM2.5 NAAQS 

as a NAAQS for a new indicator of PM. EPA did 

not replace the PM10 NAAQS with the NAAQS for 

PM2.5 when the PM2.5 NAAQS were promulgated in 

1997. EPA rather retained the annual and 24-hour 

NAAQS for PM10 (retaining PM10 as an indicator of 

coarse particulate matter),and treated PM2.5 as a 

new pollutant for purposes of developing 

increments even though EPA had already 

developed air quality criteria for PM generally. See 

75 FR 64864 (October 20, 2010). 

10EPA interprets section 166(a) to authorize EPA 

to promulgate pollutant-specific PSD regulations 

meeting the requirements of section 166(c) and 

166(d) for any pollutant for which EPA promulgates 

a NAAQS after 1977. 

11The 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. 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. On July 18, 1997, EPA 

promulgated the primary 1997 annual and 24-hour 

PM2.5 NAAQS as 15 mg/m3 and 65 mg/m3

respectively. See 62 FR 38652. On October 17, 2006, 

EPA strengthened the 24-hour PM2.5 NAAQS to 35 

mg/m3. See 71 FR 61144. On March 27, 2008, EPA 

revised the NAAQS for ozone based on an 8-hour 

average concentrations to 0.075 parts per million 

(ppm). See 73 FR 16436. 

12There are four separate PSDrelated rulemakings 

that states are required to adopt and have approved 

into their SIP in order to maintain a comprehensive 

SIP-approved PSD permitting program and comply 

with the PSD and enforcement requirements of 

110(a)(2) infrastructure requirements for sections 

110(a)(2)(C), (D)(i)(II) and (J) of the CAA. These 

include: 1) ‘‘Final Rule To Implement the 8-Hour 

Ozone National Ambient Air Quality Standard— 

Phase 2 Rule; Final Rule’’ (which codified NOx as 

an ozone precursor for NSR) (70 FR 71612, 

November 29, 2005); 2) ‘‘Prevention of Significant 

Deterioration and Title V Greenhouse Gas Tailoring 

Rule; Final Rule’’ (75 FR 31514, June 3, 2010) (as 

consistent with the Supreme Court’s decision in 

Utility Air Regulatory Group v. Environmental 

Protection Agency, 134 S. Ct. 2427 (June 23, 2014)); 

3) the NSR PM2.5 Rule and; 4) the PM2.5 PSD 

Increment-SILs-SMC Rule (only as it relates to PM2.5

Increments). See 77 FR 46352 (August 3, 2012), 78 

FR 3867 (January 17, 2013) and 77 FR 72291 

(December. 5, 2012). Kentucky’s January 31, 2013 

submission satisfies two of the four required PSD 

rulemakings mentioned above including the 2008 

NSR PM2.5 Rule and the PM2.5 Increments-SILsSMC Rule (only as it relates to the PSD increments). 

EPA approved the remaining PSD requirements for 

the Greenhouse Gas Tailoring Rule and the Phase 

2 Rule on December 29, 2010 (75 FR 81868) and on 

September 15, 2010 (75 FR 55988), respectively. 

13EPA also relied upon Kentucky’s July 3, 2012 

commitment to address the PSD-related 

requirements as the basis for conditionally 

approving the Commonwealth’s 1997 and 2006 

PM2.5 NAAQS infrastructure SIPs as they relate to 

section 110(a)(2)(D)(i)(II). See 78 FR 18241 (March 

Continued 

includes filterable particles that are 

larger than PM2.5 or PM10 and is an 

indicator measured under various New 

Source Performance Standards (NSPS) 

(40 CFR part 60).6 The Commonwealth’s 

January 31, 2013 SIP revision adopts 

EPA’s definition for ‘‘regulated NSR 

pollutant’’ requiring states to consider 

condensables (at 40 CFR 

51.166(b)(49)(vi)), excluding the term 

‘‘particulate matter emissions.’’ 

B. PM2.5 PSD-Increment-SILs-SMC Rule 

The October 20, 2010, final 

rulemaking established PM2.5

increments pursuant to section 166(a) of 

the CAA to prevent significant 

deterioration of air quality in areas 

meeting the NAAQS. Today’s action 

pertains only to the PM2.5 increments 

(and relevant related implementing 

provisions) promulgated in the October 

20, 2010, rule. The Commonwealth’s 

January 31, 2013, SIP revision adopts 

the PSD increment provisions 

promulgated in the PM2.5 PSD 

Increments-SILs-SMC Rule to be 

consistent with the Federal NSR 

regulations and to appropriately 

implement the Commonwealth’s NSR 

program for the PM2.5 NAAQS. 

As established in part C of title I of 

the CAA, EPA’s PSD program protects 

public health from adverse effects of air 

pollution by ensuring that construction 

of new or modified sources in 

attainment or unclassifiable areas does 

not lead to significant deterioration of 

air quality, while simultaneously 

ensuring that economic growth will 

occur in a manner consistent with 

preservation of clean air resources. 

Under section 165(a)(3) of the CAA, a 

PSD permit applicant must demonstrate 

that emissions from the proposed 

construction and operation of a facility 

‘‘will not cause, or contribute to, air 

pollution in excess of any maximum 

allowable increase or allowable 

concentration for any pollutant.’’ In 

other words, when a source applies for 

a permit to emit a regulated pollutant in 

an area that is designated as attainment 

or unclassifiable for a NAAQS, the state 

and EPA must determine if emissions of 

the regulated pollutant from the source 

will cause significant deterioration in 

air quality. Significant deterioration 

occurs when the amount of the new 

pollution exceeds the applicable PSD 

increment, which is the ‘‘maximum 

allowable increase’’ of an air pollutant 

allowed to occur above the applicable 

baseline concentration 7 for that 

pollutant.8

As described in the PM2.5 PSD 

Increments-SILs-SMC Rule, and 

pursuant to the authority under section 

166(a) of the CAA, EPA promulgated 

numerical increments for PM2.5 as a new 

pollutant 9 for which NAAQS were 

established after August 7, 1977,10 and 

derived 24-hour and annual PM2.5

increments for the three area 

classifications (Class I, II and III). See 75 

FR 64864 at 64869 and the ambient air 

increment table at 40 CFR 51.166(c)(1) 

and 52.21(c). In addition to establishing 

PSD increments for the PM2.5 NAAQS, 

the PM2.5 PSD Increments-SILs-SMC 

Rule amended the definition at 40 CFR 

51.166 and 52.21 for ‘‘major source 

baseline date’’ and ‘‘minor source 

baseline date’’ (including trigger dates) 

to establish the PM2.5 NAAQS specific 

dates associated with the 

implementation of PM2.5 PSD 

increments. See 75 FR 64864. As 

discussed above, the Commonwealth’s 

January 31, 2013, SIP revision adopts 

the PM2.5 PSD increment permitting 

requirements, including the 

implementing regulations discussed 

above, promulgated in the PM2.5 PSD 

Increments-SILs-SMC Rule. 

C. EPA’s Conversion of Conditional 

Approvals for the Commonwealth’s 

Infrastructure SIP 

In addition to adopting required NSR 

permitting regulations for the 

implementation of the PM2.5 NAAQS, 

the Commonwealth’s January 31, 2013, 

SIP revision also satisfies EPA’s 

conditional approval of the 

Commonwealth’s 1997 annual and 2006 

24-hour PM2.5, and 2008 8-hour Ozone 

110(a)(2) infrastructure SIPs 11 with 

respect to the PSD-related 

requirements 12 of sections 110(a)(2)(C), 

110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) of the CAA. Kentucky 

submitted multiple SIP submissions to 

EPA for approval to address the 

110(a)(2) infrastructure SIP 

requirements for the 1997 annual and 

2006 24-hour PM2.5 NAAQS (August 26, 

2008 and July 17, 2012, respectively), 

and the 2008 8-hour Ozone NAAQS 

(July 7, 2012). 

On July 3, 2012, Kentucky submitted 

a letter requesting that EPA 

conditionally approve the 

Commonwealth’s infrastructure SIP 

submissions with respect to PSD-related 

requirements for sections 110(a)(2)(C) 

and 110(a)(2)(J) for the 1997 and 2006 

PM2.5 NAAQS.13 Additionally, the 


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26, 2013). EPA had already conditionally approved 

the Commonwealth’s infrastructure SIPs for the 

1997 and 2006 PM2.5 NAAQS for the PSD-related 

requirements related to sections 110(a)(2)(C) and (J) 

on October 3, 2012. See 77 FR 60307. 

14EPA has not taken action on the 

Commonwealth’s 2008 lead infrastructure SIP 

submission but will consider the action in a 

separate rulemaking. 

15EPA set a deadline of December 31, 2014, for 

the states to submit any additional attainment 

related SIP elements that may be needed to meet the 

applicable requirements of subpart 4 for areas 

currently designated nonattainment for the 1997 

and/or 2006 PM2.5 NAAQS, and to submit SIPs 

addressing the NNSR requirements in subpart 4. 

EPA believes that this period provides a relatively 

brief but reasonable amount of time for states to 

ascertain whether and to what extent any additional 

submissions are needed for a particular 1997 or 

2006 PM2.5 NAAQS nonattainment area, and to 

develop, adopt and submit any such SIPs. 

Commonwealth submitted another 

correspondence on December 19, 2012, 

requesting conditional approval for 

PSD-related requirements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) and 

110(a)(2)(J) for the 2008 lead and 2008 

8-hour Ozone NAAQS infrastructure 

submissions.14 Both letters documented 

the Commonwealth’s commitment to 

adopt and submit the PSD-related 

provisions needed to comply with 

sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) 

(prong 3) and 110(a)(2)(J) all in 

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

CAA to ensure a comprehensive PSD 

program. 

EPA took action to approve in part 

and conditionally approve in part 

portions of the Commonwealth’s 

infrastructure SIP submissions for the 

1997 and 2006 PM2.5 NAAQS on 

October 3, 2012, and March 26, 2013, 

and for the 2008 8-hour ozone NAAQS 

on March 7, 2013. See 77 FR 60307, 78 

FR 18241, and 78 FR 14681, 

respectively. The Commonwealth’s 

January 31, 2013, SIP revision satisfies 

the conditions listed in EPA’s previous 

conditional approvals for the 

infrastructure submissions. 

II. This Action 

EPA is taking final action to approve 

into the Kentucky SIP the 

Commonwealth’s January 31, 2013, SIP 

revision, which adopts the NSR 

permitting regulations to implement the 

NSR program for the PM2.5 NAAQS. 

Specifically, the Commonwealth adopts 

the federal NSR permitting requirements 

as promulgated in the NSR PM2.5 Rule 

and PSD Increment-SILs-SMC Rule (40 

CFR 51.165 and 51.166) at regulations 

401 KAR 51:001, 51:017, and 51:052 

into the Kentucky SIP. With respect to 

the NSR PM2.5 Rule, the Commonwealth 

adopts the following: (1) the 

requirement for PSD and NNSR permits 

to address directly emitted PM2.5 and 

precursor pollutants (sulfur dioxide 

(SO2) and nitrogen oxides (NOX) (as 

codified at 40 CFR 

51.165(a)(1)(xxxvii)(C) and 

51.166(b)(49)); (2) the significant 

emission rates for direct PM2.5 and 

precursor pollutants (SO2 and NOx) (as 

codified at 40 CFR 51.165(a)(1)(x)(A) 

and 51.166(b)(23)(i)); (3) the NNSR 

PM2.5 emission offsets (as codified at 

51.165(9)(i)), and (4) the PSD and NNSR 

requirement that condensable PM10 and 

PM2.5 emissions be accounted for in PSD 

applicability determinations and in 

establishing emissions limitations for 

permitting (as codified at 40 CFR 

51.165(a)(1)(xxxvii)(D) and 

51.166(b)(49)). 

With respect to the PSD IncrementSILs-SMC Rule, the Commonwealth’s 

January 31, 2013, SIP revision adopts 

the PSD increments for PM2.5 annual 

and 24-hour NAAQS pursuant to 

section 166(a) of the CAA. Specifically, 

the SIP revision changes include: 1) the 

PM2.5 increments as promulgated at 40 

CFR 51.166(c)(1) and (p)(4) (for Class I 

Variances); and 2) amendments to the 

terms ‘‘major source baseline date’’ (at 

40 CFR 51.166(b)(14)(i)(c)), ‘‘minor 

source baseline date’’ (including 

establishment of the ‘‘trigger date’’) (at 

section 51.166(b)(14)(ii)) and ‘‘baseline 

area’’ (as amended at 51.166(b)(15)(i)). 

As discussed above, on July 22, 2014, 

Kentucky submitted a letter to EPA 

withdrawing the PM2.5 SILs and SMC 

provisions promulgated in the PM2.5

PSD Increments-SILs-SMC Rule and 

later vacated by the DC Circuit Court of 

Appeals (See Sierra Club, 705 F.3d at 

458). Therefore, these provisions are no 

longer before EPA for consideration. 

As discussed above in section I, the 

DC Circuit in Natural Resources Defense 

Council v. EPA issued a decision that 

remanded the EPA’s NSR PM2.5 Rule 

implementing the 1997 PM2.5 NAAQS. 

The court found that EPA erred in 

implementing the PM2.5 NAAQS in 

these rules solely pursuant to the 

general implementation provisions of 

subpart 1 of part D of title I of the Clean 

Air Act, rather than pursuant to the 

additional implementation provisions 

specific to particulate matter 

nonattainment areas in subpart 4. On 

June 2, 2014, the EPA issued a final 

rulemaking that begins to address the 

remand. See 79 FR 31566. Upon its 

effective date, the final rule classifies all 

existing PM2.5 nonattainment areas as 

‘‘Moderate’’ nonattainment areas and 

sets a deadline of December 31, 2014, 

for states to submit any SIP 

submissions, including NNSR SIPs, that 

may be necessary to satisfy the 

requirements of subpart 4, part D, title 

I of the CAA with respect to PM2.5

nonattainment areas.15

Kentucky’s submission does not 

include the regulation of volatile 

organic compounds (VOCs) and 

ammonia as PM2.5 precursors, nor does 

it include a demonstration consistent 

with section 189(e) showing that major 

sources of those precursor pollutants 

would not contribute significantly to 

PM2.5 levels exceeding the standard in 

the area. Therefore, EPA cannot 

conclude at this time that this part of 

Kentucky’s NNSR submission of 

revisions to Chapters 51:001 and 51:052 

satisfies all of the requirements of 

subpart 4 as they pertain to PM2.5 NNSR 

permitting. Although the revisions to 

Kentucky’s NNSR regulations at 

Chapters 51:001 and 51:052 may not 

contain all of the necessary elements to 

satisfy the CAA requirements when 

evaluated under the subpart 4 

provisions, the revisions themselves 

represent a strengthening of the 

currently-approved Kentucky NNSR SIP 

which does not address PM2.5 at all. As 

a result of the June 2, 2014 (79 FR 

31566) final rule, Kentucky has until 

December 31, 2014, to make any 

additional submission necessary to 

address the requirements of subpart 4, 

including addressing the PM2.5

precursors of VOC and ammonia for 

NNSR permitting purposes. Therefore, 

EPA is approving the NNSR revisions to 

Kentucky’s NNSR permitting program 

without listing the absence of either the 

regulation or evaluation of VOCs and 

ammonia as PM2.5 precursors as a 

deficiency at this time. 

Finally, as discussed in section I 

above and in EPA’s proposed action 

(See 79 FR 42745, July 23, 2014), 

Kentucky’s January 31, 2013, SIP 

revision also satisfies the conditions 

listed in EPA’s previous conditional 

approvals for the Commonwealth’s 2008 

8-hour ozone, and 1997 annual and 

2006 24-hour PM2.5 NAAQS 

infrastructure SIP submissions. 

Therefore, EPA is taking final action to 

convert its conditional approvals with 

respect to the PSD-related requirements 

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

110(a)(2)(D)(i)(II) and 110(a)(2)(J) to full 

approvals. Given that the 

Commonwealth’s January 31, 2013, SIP 

revision fulfills the conditional approval 

requirements for conversion to a full 

approval, the conditional approval 

language at section 52.919(a)–(c) of 40 

CFR part 52, included in EPA’s final 

conditional approvals published on 

October 3, 2012 (77 FR 60307), March 

7, 2013 (78 FR 14681) and March 26, 

2013 (78 FR 18241) is no longer 

necessary. This action removes the 


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Federal Register / Vol. 79, No. 212 / Monday, November 3, 2014 / Rules and Regulations 65147 

conditional approval language at 40 CFR 

52.919, with the approval of the 

Commonwealth’s January 31, 2013, SIP 

revision, to reflect that the infrastructure 

SIPs for the Commonwealth’s 2008 8- 

hour ozone, and 1997 annual and 2006 

24-hour PM2.5 NAAQS have been fully 

approved. 

III. Final Action 

EPA is taking final action to approve 

the Commonwealth of Kentucky’s 

January 31, 2013, SIP revision adopting 

Federal regulations amended in the May 

16, 2008, NSR PM2.5 Rule and the 

October 20, 2010, PM2.5 PSD IncrementSILs-SMC rule. EPA is approving these 

revisions into the Kentucky SIP because 

they are consistent with section 110 of 

the CAA and its implementing 

regulations. Final approval of the 

Commonwealth’s January 31, 2013, SIP 

also satisfies the requirements upon 

which EPA conditionally approved 

several Kentucky infrastructure 

requirements related to the 1997 and 

2006 PM2.5 and the 2008 8-hour ozone 

NAAQS. Accordingly, EPA is also 

taking final action today to convert 

EPA’s previous conditional approval of 

the Commonwealth’s infrastructure 

requirements related to PSD 

requirements for the PM2.5 and ozone 

NAAQS to a full approval. 

IV. 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). 

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. 

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 January 2, 2015. 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, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements. 

Dated: October 22, 2014. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52–APPROVAL AND 

PROMULGATION OF PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

§ 52.919 [Removed and Reserved] 

■ 2. Section 52.919 is removed and 

reserved. 

■ 3. Section 52.920(c) is amended by 

revising the entries for 401 KAR 51:001, 

401 KAR 51:017 and 401 KAR 51:052 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 

******

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

51.

12/7/2012 11/3/14 [Insert Federal Register Citation].


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65148 Federal Register / Vol. 79, No. 212 / Monday, November 3, 2014 / Rules and Regulations 

TABLE 1—EPA APPROVED KENTUCKY REGULATIONS—Continued 

State citation Title/subject State effective 

date EPA approval date Explanation 

******

401 KAR 51:017 .......... Prevention of significant deterioration of air quality.12/7/2012 11/3/14 [Insert Federal Register Citation].With the exception of the SILs 

and SMC provisions for 

PM2.5. 

401 KAR 51:052 .......... Review of new sources in or impacting upon nonattainment 

areas.

12/7/2012 11/3/14 [Insert Federal Register Citation].With the exception of the SILs 

and SMC provisions for 

PM2.5. 

* * * * * * 

* * * * * 

[FR Doc. 2014–25950 Filed 10–31–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2014–0002; Internal 

Agency Docket No. FEMA–8357] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP) that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. Also, information 

identifying the current participation 

status of a community can be obtained 

from FEMA’s Community Status Book 

(CSB). The CSB is available at http://

www.fema.gov/fema/csb.shtm. 

DATES: Effective Dates: The effective 

date of each community’s scheduled 

suspension is the third date (‘‘Susp.’’) 

listed in the third column of the 

following tables. 

FOR FURTHER INFORMATION CONTACT: If 

you want to determine whether a 

particular community was suspended 

on the suspension date or for further 

information, contact David Stearrett, 

Federal Insurance and Mitigation 

Administration, Federal Emergency 

Management Agency, 500 C Street SW., 

Washington, DC 20472, (202) 646–2953. 

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

Federal flood insurance that is not 

otherwise generally available from 

private insurers. In return, communities 

agree to adopt and administer local 

floodplain management measures aimed 

at protecting lives and new construction 

from future flooding. Section 1315 of 

the National Flood Insurance Act of 

1968, as amended, 42 U.S.C. 4022, 

prohibits the sale of NFIP flood 

insurance unless an appropriate public 

body adopts adequate floodplain 

management measures with effective 

enforcement measures. The 

communities listed in this document no 

longer meet that statutory requirement 

for compliance with program 

regulations, 44 CFR Part 59. 

Accordingly, the communities will be 

suspended on the effective date in the 

third column. As of that date, flood 

insurance will no longer be available in 

the community. We recognize that some 

of these communities may adopt and 

submit the required documentation of 

legally enforceable floodplain 

management measures after this rule is 

published but prior to the actual 

suspension date. These communities 

will not be suspended and will continue 

to be eligible for the sale of NFIP flood 

insurance. A notice withdrawing the 

suspension of such communities will be 

published in the Federal Register. 

In addition, FEMA publishes a Flood 

Insurance Rate Map (FIRM) that 

identifies the Special Flood Hazard 

Areas (SFHAs) in these communities. 

The date of the FIRM, if one has been 

published, is indicated in the fourth 

column of the table. No direct Federal 

financial assistance (except assistance 

pursuant to the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act not in connection with a 

flood) may be provided for construction 

or acquisition of buildings in identified 

SFHAs for communities not 

participating in the NFIP and identified 

for more than a year on FEMA’s initial 

FIRM for the community as having 

flood-prone areas (section 202(a) of the 

Flood Disaster Protection Act of 1973, 

42 U.S.C. 4106(a), as amended). This 

prohibition against certain types of 

Federal assistance becomes effective for 

the communities listed on the date 

shown in the last column. The 

Administrator finds that notice and 

public comment procedures under 5 

U.S.C. 553(b), are impracticable and 

unnecessary because communities listed 

in this final rule have been adequately 

notified. 

Each community receives 6-month, 

90-day, and 30-day notification letters 

addressed to the Chief Executive Officer 

stating that the community will be 

suspended unless the required 

floodplain management measures are 

met prior to the effective suspension 

date. Since these notifications were 

made, this final rule may take effect 

within less than 30 days. 

National Environmental Policy Act. 

This rule is categorically excluded from 

the requirements of 44 CFR Part 10, 

Environmental Considerations. No 

environmental impact assessment has 

been prepared. 

Regulatory Flexibility Act. The 

Administrator has determined that this 

rule is exempt from the requirements of 

the Regulatory Flexibility Act because 

the National Flood Insurance Act of 

1968, as amended, Section 1315, 42 

U.S.C. 4022, prohibits flood insurance 

coverage unless an appropriate public 

body adopts adequate floodplain 

management measures with effective 

enforcement measures. The 

communities listed no longer comply 

with the statutory requirements, and 

after the effective date, flood insurance 

will no longer be available in the 

communities unless remedial action 

takes place. 


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