Federal Register / Vol. 78, No. 45 / Thursday, March 7, 2013 / Rules and Regulations 14681 

a permit issued for a demonstration or 

special event. 

(2) Persons permitted to solicit must 

not: 

(i) Give false or misleading 

information regarding their purposes or 

affiliations; 

(ii) Give false or misleading 

information as to whether any item is 

available without donation. 

* * * * * 

Dated: January 25, 2013. 

Rachel Jacobson, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks. 

[FR Doc. 2013–05249 Filed 3–6–13; 8:45 am] 

BILLING CODE 4312–EJ–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0700; FRL–9788–6] 

Approval and Promulgation of 

Implementation Plans; Kentucky; 

110(a)(1) and (2) Infrastructure 

Requirements for the 2008 8-Hour 

Ozone National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve in part, conditionally approve 

in part, and disapprove in part, the July 

17, 2012, State Implementation Plan 

(SIP) submission provided by the 

Commonwealth of Kentucky, through 

the Division of Air Quality (DAQ) of the 

Kentucky Energy and Environment 

Cabinet. Kentucky DAQ submitted the 

July 17, 2012, SIP submission as a 

replacement to its original September 8, 

2009, SIP submission. Specifically, this 

final rulemaking pertains to the Clean 

Air Act (CAA or Act) requirements for 

the 2008 8-hour ozone national ambient 

air quality standards (NAAQS) 

infrastructure SIP. The CAA requires 

that each state adopt and submit a SIP 

for the implementation, maintenance, 

and enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. Kentucky DAQ 

made a SIP submission demonstrating 

that the Kentucky SIP contains 

provisions that ensure the 2008 8-hour 

ozone NAAQS are implemented, 

enforced, and maintained in the 

Commonwealth (hereafter referred to as 

‘‘infrastructure submission’’). EPA is 

now taking final action on three related 

actions on Kentucky DAQ’s 

infrastructure SIP submission. First, 

EPA is taking action to approve 

Kentucky DAQ’s infrastructure 

submission provided to EPA on July 17, 

2012, as meeting certain required 

infrastructure elements for the 2008 8- 

hour ozone NAAQS. Second, with 

respect to the infrastructure elements 

related to specific prevention of 

significant deterioration (PSD) 

requirements, EPA is taking final action 

to approve, in part and conditionally 

approve in part, the infrastructure SIP 

submission based on a December 19, 

2012, commitment from Kentucky DAQ 

to submit specific enforceable measures 

for approval into the SIP to address 

specific PSD program deficiencies. 

Third, EPA is taking final action to 

disapprove Kentucky DAQ’s 

infrastructure SIP submission with 

respect to certain interstate transport 

requirements for the 2008 8-hour ozone 

NAAQS because the submission does 

not address the statutory provisions 

with respect to the relevant NAAQS and 

thus does not satisfy the criteria for 

approval. The CAA requires EPA to act 

on this portion of the SIP submission 

even though under a recent court 

decision, Kentucky DAQ was not yet 

required to submit a SIP submission to 

address these interstate transport 

requirements. Moreover, under that 

same court decision, this disapproval 

does not trigger an obligation for EPA to 

promulgate a Federal Implementation 

Plan (FIP) to address these interstate 

transport requirements. 

DATES: This rule will be effective April 

8, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2012–0700. 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: 

Nacosta C. Ward, 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. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Response to Comments 

III. This Action 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

Upon promulgation of a new or 

revised NAAQS, sections 110(a)(1) and 

(2) of the CAA require states to address 

basic structural SIP requirements, 

including emissions inventories, 

monitoring, and modeling to assure 

attainment and maintenance for that 

new NAAQS. 

Section 110(a) of the CAA generally 

requires states to make a SIP submission 

to meet applicable requirements in 

order to provide for the implementation, 

maintenance, and enforcement of a new 

or revised NAAQS within three years 

following the promulgation of such 

NAAQS, or within such shorter period 

as EPA may prescribe. These SIP 

submissions are commonly referred to 

as ‘‘infrastructure’’ SIP submissions. 

Section 110(a) imposes the obligation 

upon states to make an infrastructure 

SIP submission to EPA for a new or 

revised NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the infrastructure SIP for a 

new or revised NAAQS affect the 

content of the submission. The contents 

of such infrastructure SIP submissions 

may also vary depending upon what 

provisions the state’s existing SIP 

already contains. In the case of the 2008 

8-hour ozone NAAQS, states typically 

have met the basic program elements 

required in section 110(a)(2) through 

earlier SIP submissions in connection 

with previous ozone NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 


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1Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

pursuant to other provisions of the CAA for 

submission of SIP revisions specifically applicable 

for attainment planning purposes. These 

requirements are: (1) Submissions required by 

section 110(a)(2)(C) to the extent that subsection 

refers to a permit program as required in part D 

Title I of the CAA; and (2) submissions required by 

section 110(a)(2)(I) which pertain to the 

nonattainment planning requirements of part D, 

Title I of the CAA. Today’s final rulemaking does 

not address infrastructure elements related to 

section 110(a)(2)(I) or the nonattainment planning 

requirements of 110(a)(2)(C). 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

3Section 110(a)(2)(D)(i) includes four 

requirements referred to as prongs 1 through 4. 

Prongs 1 and 2 are provided at section 

110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at 

section 110(a)(2)(D)(i)(II). At this time, pursuant to 

a recent decision of the U.S. Court of Appeals for 

the DC Circuit, the SIP submission from Kentucky 

DAQ to meet section 110(a)(2)(D)(i)(I) is not a 

required SIP submission. The portions of the SIP 

submission relating to 110(a)(2)(D)(i)(II) and 

110(a)(2)(D)(ii), in contrast, are required. Although 

prongs 1 and 2 are not required, EPA is acting today 

to disapprove Kentucky’s submittal related to these 

prongs for the reasons described in the proposed 

rule associated with this rulemaking. See 78 FR 

3867. Further information regarding EPA’s 

disapproval of prongs 1 and 2 is also provided 

below in section II. 

4This requirement as mentioned above is not 

relevant to today’s final rulemaking. 

5Section 110(a)(2)(D)(i) includes four 

requirements referred to as prongs 1 through 4. 

Prongs 1 and 2 are provided at section 

110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at 

section 110(a)(2)(D)(i)(II). Today’s conditional 

approval only relates to the structural PSD 

requirements of section 110(a)(2)(D)(i)(II), also 

known as prong 3 as noted above in footnote 3. 

6Section 110(a)(2)(D)(i)(I) includes two distinct 

requirements referred to as prongs 1 and 2. Prong 

1 requires states to prohibit emissions that 

significantly contribute to nonattainment of the 

NAAQS in another state and prong 2 request states 

to prohibit emissions that interfere with 

maintenance of the NAAQS in another state. 

established or revised NAAQS. As 

mentioned above, these requirements 

include basic structural SIP 

requirements such as modeling, 

monitoring, and emissions inventories 

that are designed to assure attainment 

and maintenance of the NAAQS. The 

applicable infrastructure SIP 

requirements that are the subject of this 

rulemaking are listed below.1

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures.2

• 110(a)(2)(D)(i): Interstate transport.3

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

• 110(a)(2)(H): Future SIP revisions. 

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.4

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/ 

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

On January 17, 2013, EPA proposed to 

approve Kentucky’s July 17, 2012, 

infrastructure SIP submission and 

proposed to conditionally approve in 

part sections 110(a)(2)(C), prong 3 of 

(D)(i), and (J), and disapprove in part 

section 110(a)(2)(D)(i) for the 2008 8- 

hour ozone NAAQS. See 78 FR 3867. 

EPA proposed conditional approval in 

part for sections 110(a)(2)(C), prong 3 of 

(D)(i),5 and (J) because, while the 

Commonwealth’s SIP does not currently 

contain provisions to address the 

structural PSD requirements of the PSD 

and Nonattainment New Source Review 

(NNSR) requirements related to the 

implementation of the NSR PM2.5 Rule 

and the PM2.5 PSD Increment-SILs-SMC 

Rule (only as it relates to PM2.5

Increments), Kentucky DAQ committed 

in a letter dated December 19, 2012, to 

submit, within one year, specific 

enforceable measures to EPA for 

incorporation into the SIP to address 

these requirements. See 78 FR 3867. 

This commitment letter meets the 

requirements of section 110(k)(4) of the 

CAA. Kentucky DAQ’s December 19, 

2012, letter can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0700. 

With respect to section 

110(a)(2)(D)(i)(I),6 for the 2008 8-hour 

ozone NAAQS, EPA published a 

proposal to disapprove Kentucky DAQ’s 

July 17, 2012, SIP revision. EPA 

proposed disapproval of these elements 

because the infrastructure SIP 

submission asserted that the 

requirements of 110(a)(2)(D)(i)(I) with 

respect to the 2008 8-hour ozone 

NAAQS were satisfied by the 

Commonwealth’s approved regulations 

to meet the Clean Air Interstate Rule 

(CAIR) requirements. CAIR, however, 

was promulgated before the 2008 8-hour 

ozone NAAQS were promulgated, and 

CAIR did not, in any way, address 

interstate transport requirements related 

to the 2008 8-hour ozone NAAQS. See 

78 FR 3867. 

Finally, EPA notes that this final 

action on Kentucky’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS is required not only by section 

110(k), but also by order issued by the 

U.S. District Court for the Northern 

District of California in WildEarth 

Guardians v. Jackson, Case No. 11–CV– 

5651 YGR. In an October 17, 2012, order 

granting partial summary judgment in 

the case, as modified in a December 7, 

2012, order granting in part EPA’s 

motion for an amended order, that court 

directed EPA to take final action upon 

the infrastructure SIP at issue in this 

action by March 4, 2013. With respect 

to Kentucky, the court specifically 

ordered EPA to act upon the 

infrastructure SIP submission made by 

the Commonwealth on September 8, 

2009, as revised on July 17, 2012. As 

explained in more detail in response to 

relevant comments, EPA is addressing 

the requirements of section 

110(a)(2)(D)(i)(I) consistent with the 

opinion of the DC Circuit Court’s 

opinion in EPA Homer City Generation 

v. EPA, 696 F.3d 7 (DC Cir. 2012). 

II. Response to Comments 

EPA received five sets of comments 

on the January 17, 2013, proposed 

rulemaking to approve in part, 

conditionally approve in part, and 

disapprove in part, Kentucky DAQ’s 

infrastructure SIP submission intended 

to meet the CAA requirements for the 

2008 8-hour ozone NAAQS. A summary 

of the comments and EPA’s responses 

are provided below. 

Comment 1: One commenter contends 

that EPA cannot approve the section 

110(a)(2)(A) portion of Kentucky DAQ’s 

infrastructure SIP submission because 

certain counties in the Commonwealth 

have air quality monitors with data that 

suggest such areas are not attaining the 

2008 8-hour ozone NAAQS. 

Specifically, the Commenter cites air 

monitoring reports for Jefferson and 

Oldham counties indicating violations 

of the NAAQS based on 2009–2011 

design values. The Commenter further 

contends that, based on available data 

for 2010–2012, 10 Kentucky counties 

will violate the 2008 8-hour ozone 

NAAQS based on 2010–2012 design 

values. According to the Commenter, if 

a designated attainment area violates the 

NAAQS, then this means that the state 

must necessarily lack adequate 

emissions limits in its infrastructure SIP 

submission to attain and maintain that 

NAAQS. 

Response 1: EPA disagrees with the 

Commenter’s contention that Kentucky 

DAQ’s 2008 8-hour ozone infrastructure 

SIP submission is not approvable with 

respect to section 110(a)(2)(A) because 

of the monitor design values noted by 

the Commenter. While EPA shares the 

Commenter’s concern regarding 

counties monitoring exceedances of the 


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7EPA also notes that the Commenter relies upon 

preliminary data to suggest that certain areas are 

violating the 2008 8-hour ozone NAAQS based 

upon 2010–2012 data. This data has not yet been 

certified, and as such, is not yet finalized. 

Regardless, for the reasons discussed in Response 

1, EPA does not believe that such data, were it 

certified and final, would provide an appropriate 

basis upon which to disapprove Kentucky’s 

infrastructure SIP as it relates to section 

110(a)(2)(A) requirements. 

8As noted below, a portion of Campbell County, 

Kentucky is designated nonattainment for the 2008 

8-hour ozone NAAQS in association with the 

Cincinnati-Hamilton nonattainment area. 

9Pursuant to Rule 13 of the Supreme Court Rules, 

a petition for certiorari must be filed within 90 days 

of the date of denial of rehearing. The court may 

extend this deadline for good cause by up to 60 

days. 

2008 8-hour ozone NAAQS based upon 

2009–2011 design values, such concerns 

are outside the scope of what is germane 

to an evaluation of section 110(a)(2)(A) 

of an infrastructure SIP.7

Pursuant to section 110(a)(2)(A), an 

infrastructure SIP submission must 

include enforceable emission 

limitations and other control measures, 

means, or techniques (including 

economic incentives such as fees, 

marketable permits, and auctions of 

emissions rights), as well as schedules 

and timetables for compliance, as may 

be necessary or appropriate to meet the 

applicable requirements of the Act. The 

Commenter, however, seems to believe 

that in the context of an infrastructure 

SIP submission, section 110(a)(2)(A) 

requires that a state must monitor 

attainment of the NAAQS at all 

monitors throughout the state in order 

to demonstrate that the SIP contains the 

requisite emissions limitations and 

other control measures, means or 

techniques prescribed by the Act. EPA 

does not believe that this is a reasonable 

interpretation of the provision with 

respect to infrastructure SIP 

submissions. Rather, EPA believes that 

the proper inquiry at this juncture is 

whether the state has met the basic 

structural SIP requirements appropriate 

at the point in time EPA is acting upon 

it. The Act provides states and EPA with 

other tools to address concerns that 

arise with respect to violations of the 

NAAQS in a designated attainment area, 

such as the authority to redesignate 

areas pursuant to section 107(d)(3), the 

authority to issue a ‘‘SIP Call’’ pursuant 

to section 110(k)(5), or the general 

authority to approve SIP revisions that 

can address such violations of the 

NAAQS through other appropriate 

measures. As stated in EPA’s proposed 

approval for this rule, to meet section 

110(a)(2)(A), Kentucky submitted a list 

of existing emission reduction measures 

in the SIP that control emissions of 

volatile organic compounds and 

nitrogen oxides (NOx) in order to 

address ambient ozone levels. EPA 

believes that this is sufficient for 

purposes of infrastructure SIP 

submission. 

Comment 2: The Commenter contends 

that EPA must disapprove Kentucky’s 

infrastructure SIP submission as it 

relates to section 110(a)(2)(A) because 

the submittal fails to contain 

enforceable ozone precursor limits and 

schedules/timetables for compliance to 

ensure attainment and maintenance of 

the NAAQS. Specifically, the 

Commenter contends that Kentucky has 

failed to identify how it will address the 

violations for those counties monitoring 

violations of the NAAQS. 

Response 2: EPA disagrees with the 

Commenter’s contention that Kentucky 

should be required to submit the 

emissions limitations and other control 

measures associated with a 

nonattainment plan in order to satisfy 

section 110(a)(2)(A) requirements. This 

would be beyond the scope of what is 

required per section 110(a)(2)(A) in the 

context of an infrastructure SIP 

submission. Nonattainment area plans 

are due on a different schedule from the 

section 110 infrastructure elements, and 

such plans, if required, are reviewed 

and acted upon through a separate 

process. Here, the most of the counties 

cited by the Commenter are not 

designated nonattainment,8 and as such, 

the nonattainment plan requirements 

referenced by the Commenter are not 

currently due. As noted above, EPA 

shares the Commenter’s concern 

regarding areas that are monitoring 

exceedances of the 2008 8-hour ozone 

NAAQS and will work appropriately 

with state and local agencies to address 

such exceedances. Further, in approving 

Kentucky’s infrastructure SIP, EPA is 

affirming that Kentucky has sufficient 

authority to take the types of actions 

required by the CAA in order to bring 

such areas back into attainment. 

Comment 3: A number of Commenters 

disagreed with EPA’s position that 

disapproval of the Kentucky’s 

infrastructure SIP, as it relates to section 

110(a)(2)(D)(i)(I) requirements, would 

not trigger a mandatory duty for EPA to 

promulgate a FIP to address these 

requirements. Specifically, the 

Commenters contend that the plain 

language of the CAA requires EPA to 

issue a FIP within two years of a 

disapproval action. In addition, the 

Commenters contend that the decision 

in EME Homer City Generation v. EPA, 

696 F.3d 7 (DC Cir. 2012) (EME Homer 

City), was incorrectly decided and is 

inconsistent with previous decisions by 

the DC Circuit Court of Appeals. The 

Commenters suggest that EPA should 

not voluntarily follow the incorrectly 

decided EME Homer City opinion, 

particularly in the context of an 

infrastructure action that only impacts 

sources in Kentucky, a state under the 

jurisdiction of the Sixth Circuit Court of 

Appeals rather than the DC Circuit 

Court of Appeals. 

Response 3: EPA has historically 

adopted the interpretation suggested by 

the Commenters that disapproval of 

section 110(a)(2)(D)(i)(I) would trigger 

an obligation for the Agency to 

promulgate a FIP within two years if the 

state did not correct the SIP deficiency 

within that time. EPA continues to agree 

that the plain language of the statute 

establishes these obligations, and for 

those reasons, we asked the U.S. Court 

of Appeals for the DC Circuit to grant 

rehearing en banc of the decision in 

EME Homer City. That petition, 

however, was denied on January 24, 

2012, and the mandate was issued to 

EPA on February 4, 2012. The deadline 

for any party to file a petition for 

certiorari with the Supreme Court has 

not passed 9 and the United States has 

not yet decided whether to pursue 

further appeals. In the meantime, EPA 

intends to act in accordance with the 

EME Homer City opinion in which the 

court concluded that states have no 

obligation to make a SIP submission to 

address section 110(a)(2)(D)(i)(I) for a 

new or revised NAAQS until EPA has 

first defined a state’s obligations 

pursuant to that section. As described in 

the proposed rulemaking for today’s 

action, Kentucky did make such a 

submittal, and consistent with section 

110(k) of the CAA, EPA is required to 

act upon that submittal. Because CAIR 

does not, in any way, address transport 

with respect to the 2008 8-hour ozone 

NAAQS, it cannot be relied upon to 

satisfy the requirements of 

110(a)(2)(D)(i)(I) for that NAAQS. For 

this reason, the Agency proposed to 

disapprove this portion of the 

infrastructure SIP submission. However, 

because this portion of the 

infrastructure SIP submission is not 

currently required for the 2008 8-hour 

ozone NAAQS per the EME Homer City 

opinion, EPA’s disapproval action today 

does not presently trigger a FIP 

obligation. 

EPA also disagrees with the 

Commenters’ suggestion that the Agency 

need not follow the DC Circuit’s 

decision in EME Homer City in the 

context of an infrastructure action for 

Kentucky. The EPA rule reviewed by 

the court in EME Homer City—‘‘Federal 

Implementation Plans: Interstate 

Transport of Fine Particulate Matter and 


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Ozone and Correction of SIP 

Approvals,’’ 76 FR 48207 (August 8, 

2011) also known as the Cross State Air 

Pollution Rule (CSAPR)—was 

designated by EPA as a ‘‘nationally 

applicable’’ rule within the meaning of 

section 307(b)(1) of the CAA. See id. at 

48352. Accordingly, all petitions for 

review of the CSAPR had to be filed in 

the U.S. Court Appeals for the DC 

Circuit and could not be filed in any 

other federal court. 42 U.S.C. 7607(b)(1). 

Accordingly, EPA believes the DC 

Circuit’s decision in EME Homer City 

vacating this rule is also nationally 

applicable. As such, EPA does not 

intend to take any actions, even if they 

are only reviewable in another federal 

Circuit Court of Appeals, that are 

inconsistent with the decision of the DC 

Circuit. 

Comment 4: A number of states 

commented that Kentucky contributes 

significantly to ozone nonattainment in 

other states. Specifically, the Maryland 

Department of the Environment 

commented that it has performed 

modeling to demonstrate that Maryland 

will continue to violate the 2008 8-hour 

ozone NAAQS even if all anthropogenic 

emissions in Maryland are eliminated. It 

contends that corrective actions in states 

like Kentucky that contribute to 

Maryland’s nonattainment are necessary 

in order for the state to meet the 

NAAQS. The Delaware Department of 

Natural Resources and Environmental 

Control commented that modeling from 

the CSAPR demonstrated that Kentucky 

emissions significantly contribute to 

Delaware’s ozone pollution by as much 

as 4.3 percent of the 2008 8-hour ozone 

NAAQS in 2012 and that Delaware has 

done its fair share to address ozone, and 

it expects EPA to ensure that upwind 

contributing states fully address their 

contribution to downwind 

nonattainment. Finally, the Connecticut 

Department of Energy & Environmental 

Protection commented that CSAPR 

modeling demonstrates that Kentucky 

emissions significantly contribute to 

Connecticut’s ozone pollution by as 

much as 3.4 percent of the 2008 8-hour 

ozone NAAQS in 2012, and that 

Connecticut has done its fair share to 

address ozone emissions in the state, 

and it now expects EPA to ensure that 

upwind contributing states fully address 

their contribution to downwind 

nonattainment. 

Response 4: EPA acknowledges the 

Commenters’ concern that interstate 

transport of ozone and ozone precursors 

from upwind states to downwind states 

may have adverse consequences on the 

ability of downwind areas to attain the 

NAAQS in a timely fashion. It is for this 

reason that EPA attempted, through 

CSAPR, to address emissions found to 

significantly contribute to 

nonattainment of or interfere with 

maintenance of the 1997 8-hour ozone 

NAAQS. The modeling done for CSAPR, 

however, did not address the 2008 8- 

hour ozone NAAQS and EPA did not 

draw any conclusions with respect to 

the 2008 8-hour ozone NAAQS which 

did not exist when CAIR was 

promulgated. Moreover, the DC Circuit, 

in its decision vacating the CSAPR, held 

that states are not required to submit 

SIPs addressing the requirements of 

section 110(a)(2)(D)(i)(I) until EPA has 

quantified their obligation under that 

provision. See EME Homer City, 696 

F.3d at 37. The EME Homer City opinion 

was issued in August of 2012, and on 

January 24, 2013, the court denied all 

petitions for rehearing. As noted in the 

responses above, the deadline for asking 

the Supreme Court to review the DC 

Circuit’s decision has not passed and 

the United States has not yet decided 

whether to seek further appeal. In the 

meantime, and unless the EME Homer 

City Generation decision is reversed or 

otherwise modified, EPA intends to act 

in accordance with the DC Circuit’s 

opinion. Under this opinion, EPA has 

no authority to promulgate a FIP for 

section 110(a)(2)(D)(i)(I) until such time 

as the Agency quantifies States’ 

obligations under this section. 

Comment 5: One Commenter 

contended even if EPA chose to follow 

the EME Homer City Generation 

decision, EPA should acknowledge that 

the disapproval starts a FIP clock and 

then move expeditiously to provide 

Kentucky with the information the EME 

Homer City court said EPA must 

provide. The Commenter contended that 

EPA should be able to quantify 

Kentucky’s obligations under section 

110(a)(2)(D)(i)(I) within six months, 

thereby providing the Commonwealth 

with 18 months to submit a new SIP to 

address this requirements. 

Response 5: EPA disagrees. As 

discussed above in the response to 

comment 3, unless the D.C. Circuit’s 

decision in EME Homer City is reversed 

or otherwise modified, disapproval 

Kentucky DAQ’s 2008 infrastructure SIP 

as it relates to section 110(a)(2)(i)(I) does 

not give EPA authority, much less 

obligate it, to promulgate a FIP for 

Kentucky. EPA intends to move forward 

expeditiously to address the interstate 

transport requirements of the CAA in 

accordance with all applicable court 

decisions. 

Comment 6: A number of Commenters 

contend that EPA’s disapproval section 

110(a)(2)(D)(i)(I) triggers a section 

110(k)(5) obligation to initiate a ‘‘SIP 

Call’’ to revise Kentucky’s inadequate 

infrastructure SIP related to interstate 

transport requirements. 

Response 6: EPA disagrees. Section 

110(k)(5) of the CAA provides a 

mechanism (i.e., a ‘‘SIP Call’’) for 

correcting SIPs that the Administrator 

finds to be substantially inadequate to 

meet CAA requirements. As discussed 

above, EPA has historically interpreted 

section 110(a)(1) of the CAA as 

establishing the required submittal date 

for SIPs addressing all of the ‘‘interstate 

transport’’ requirements in section 

110(a)(2)(D) including the provisions in 

section 110(a)(2)(D)(i)(I) regarding 

significant contribution to 

nonattainment and interference with 

maintenance. The D.C. Circuit’s recent 

opinion in EME Homer City, however, 

concluded that a SIP cannot be deemed 

to lack a required submission or deemed 

deficient for failure to meet the 

110(a)(2)(D)(i)(I) obligation until EPA 

first quantifies that obligation. As such, 

and consistent with the EME Homer City 

opinion, EPA does not at this time 

believe that disapproval of section 

110(a)(2)(D)(i)(I) requirements for 

Kentucky’s 2008 8-hour ozone 

infrastructure SIP constitutes a 

substantial inadequacy in the Kentucky 

SIP because EPA has yet to quantify the 

Commonwealth’s obligation under this 

requirement. EPA intends to move 

forward expeditiously to implement the 

interstate transport requirements of the 

CAA. 

Comment 7: One Commenter 

contends that EPA should disapprove 

Kentucky’s 2008 8-hour ozone 

infrastructure SIP submission with 

regard to the visibility component of 

110(a)(2)(D)(i)(II) until such time that 

Kentucky imposes best available retrofit 

technology (BART) for nitrogen oxides 

(NOx) and sulfur dioxides for electric 

generating units. The Commenter asserts 

that the substitution of the CAIR for 

BART is not permanent and enforceable 

and references the previous litigation 

related to CAIR. The Commenter 

provides a number of comments in 

relation to EPA’s ‘‘better than BART’’ 

approach and reliance on CAIR to 

support an approval action for the 

visibility components of Kentucky’s 

2008 8-hour ozone infrastructure 

submission. 

Response 7: EPA disagrees. As 

explained in detail in EPA’s proposed 

rulemaking related to today’s action, 

EPA believes that in light of the D.C. 

Circuit court’s decision to vacate 

CSAPR, also known as the Transport 

Rule (see EME Homer City, 696 F.3d 7), 

and the court’s order for EPA to 

‘‘continue administering CAIR pending 

the promulgation of a valid 

replacement,’’ it is appropriate for EPA 


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to rely at this time on CAIR to support 

approval of Kentucky’s 2008 8-hour 

ozone infrastructure submission as it 

relates to visibility. EPA has been 

ordered by the court to develop a new 

rule, and to continue implementing 

CAIR in the meantime. While EPA had 

filed a petition for rehearing of the 

court’s decision on the Transport Rule, 

this petition was later denied on January 

24, 2013. The deadline for any party to 

file a petition for certiorari with the 

Supreme Court has not passed, and the 

United States has not yet decided 

whether to pursue further appeals. In 

the meantime, EPA does not intend to 

act in a manner inconsistent with the 

decision of the D.C. Circuit. Based on 

the current direction from the court to 

continue administering CAIR, EPA 

believes that it is appropriate to rely on 

CAIR emission reductions for purposes 

of assessing the adequacy of Kentucky’s 

infrastructure SIP with respect to prong 

4 of section 110(a)(2)(D)(i)(II) while a 

valid replacement rule is developed and 

until implementation plans complying 

with any such new rule are submitted 

by the states and acted upon by EPA or 

until the EME Homer City case is 

resolved in a way that provides different 

direction regarding CAIR and CSAPR. 

Furthermore, as neither the 

Commonwealth nor EPA has taken any 

action to remove CAIR from the 

Kentucky SIP, CAIR remains part of the 

federally-approved SIP and can be 

considered in determining whether the 

SIP as a whole meets the requirement of 

prong 4 of 110(a)(2)(D)(i)(II). EPA is 

taking final action to approve the 

infrastructure SIP submission with 

respect to prong 4 because Kentucky’s 

regional haze SIP, which EPA has given 

a limited approval in combination with 

its SIP provisions to implement CAIR 

adequately, prevents sources in 

Kentucky from interfering with 

measures adopted by other states to 

protect visibility during the first 

planning period. While EPA is not at 

this time proposing to change the March 

30, 2012, limited approval and limited 

disapproval of Kentucky’s regional haze 

SIP, EPA expects to propose an 

appropriate action regarding Kentucky’s 

regional haze SIP if necessary upon final 

resolution of the EME Homer City 

litigation. More detailed rationale to 

support EPA’s approval of prong 4 for 

Kentucky’s 2008 8-hour ozone 

infrastructure submission can be found 

in EPA’s proposed rulemaking for 

today’s final action. See 78 FR 3867. 

Comment 8: One Commenter states 

that EPA should disapprove the 

visibility prong of Kentucky’s 2008 8- 

hour ozone infrastructure submission 

because the Commenter asserts that 

Kentucky has failed to conduct its 5- 

year progress review for its regional 

haze SIP by the required date. 

Response 8: EPA does not agree that 

Kentucky has missed its deadline to 

submit its 5-year progress review SIP 

related to regional haze. Kentucky’s 

initial regional haze SIP was submitted 

on June 25, 2008, so the 

Commonwealth’s 5-year regional haze 

progress review SIP is not due until 

June 25, 2013. Even assuming, however, 

that the deadline for the 

Commonwealth’s submittal of its 

progress review SIP had passed, this 

alone would not warrant the 

disapproval of Kentucky’s 2008 8-hour 

ozone infrastructure SIP submission as 

it relates to visibility. 

Comment 9: One Commenter states 

‘‘[n]ow that en banc review of Homer 

has been denied, EPA should promptly 

propose and promulgate a full approval 

of KY’s regional haze SIP.’’ The 

Commenter also asserts that, ‘‘[t]his 

prospective action should also apply to 

the other elements of the KY SIP that 

address reasonable progress and the 

long term strategy for visibility.’’ 

Response 9: This comment is outside 

of the scope of today’s action. As 

explained in EPA’s proposal notice 

related to today’s action, EPA has 

already taken final action on Kentucky’s 

regional haze SIP. See 77 FR 19098 

(March 30, 2012). EPA’s proposal notice 

related to today’s action did not involve 

a reconsideration of the Agency’s March 

30, 2012, final action on the 

Commonwealth’s regional haze SIP. 

While EPA’s proposal notice did note 

the litigation related to the Transport 

Rule and also noted that based on the 

EME Homer City court’s decision on the 

Transport Rule that it would be 

appropriate to propose to rescind its 

limited disapproval of Kentucky’s 

regional haze SIP and propose a full 

approval, EPA did not take such action 

because the Agency was awaiting a 

decision related to the possibility that 

the court would grant EPA’s petition for 

an en banc review. EPA mentioned in 

that proposal notice that an en banc 

review of the court’s decision could 

have a different outcome that could bear 

on such action on the regional haze SIP. 

Since the time of EPA’s proposal for 

Kentucky’s 2008 8-hour ozone 

infrastructure SIP, the court has denied 

EPA’s petition for en banc review. As 

noted above, on January 24, 2013, EPA’s 

petition was denied and the mandate 

was issued to EPA on February 4, 2013. 

The deadline for any party to file a 

petition for certiorari with the Supreme 

Court has not passed and the United 

States has not yet decided whether to 

pursue further appeals. In the 

meantime, EPA does not intend to act in 

a manner inconsistent with the decision 

of the D.C. Circuit. However, EPA does 

not think it is appropriate in today’s 

action to rescind its limited disapproval 

of Kentucky’s regional haze SIP. 

Notably, as explained in EPA’s proposal 

notice related to Kentucky’s 2008 8-hour 

ozone infrastructure action, EPA does 

not believe that rescinding the Agency’s 

previous limited disapproval of 

Kentucky’s regional haze SIP is 

necessary to support a full approval of 

the visibility components of 

110(a)(2)(D)(i)(I) and 110(a)(2)(J) for 

Kentucky’s 2008 8-hour ozone 

infrastructure SIP. Moreover, EPA has 

not proposed to rescind the Agency’s 

previous limited disapproval, which 

would be an appropriate procedural 

step prior to rescinding that 

disapproval. 

Comment 10: One Commenter 

contends that ‘‘EPA must disapprove 

the infrastructure SIP because it does 

not contain the 2008 ozone NAAQS.’’ In 

support of this contention, the 

Commenter points to a table codified at 

401 KAR 53:010, as evidence that 

Kentucky’s ozone limits ‘‘remain at 

levels set in 1997.’’ 

Response 10: EPA does not agree with 

the Commenter’s assertion that 

Kentucky’s 2008 8-hour ozone 

infrastructure SIP should be 

disapproved because ‘‘it does not 

contain the 2008 8-hour ozone 

NAAQS.’’ In response to this comment, 

EPA has investigated the facts 

concerning the table in question. EPA 

acknowledges that the table in 

Appendix A to 401 KAR 53:010 pointed 

to by the Commenter currently does not 

list the 2008 8-hour ozone NAAQS. 

However, EPA does not believe that the 

out-of-date table indicates that the 

Kentucky SIP does not adequately 

address infrastructure requirements for 

the 2008 8-hour ozone NAAQS. 

The Commonwealth’s infrastructure 

SIP submission explicitly stated that it 

was submitted to address the 2008 8- 

hour ozone NAAQS. Within that 

submission, the Commonwealth 

indicated that its existing provisions are 

appropriate for purposes of the 2008 8- 

hour ozone NAAQS. EPA considers this 

to be accurate, based upon the specific 

contents of the infrastructure SIP 

submission for various elements of 

section 110(a)(2). For example, 

Kentucky’s applicable permitting 

regulations define a ‘‘regulated NSR 

pollutant’’ as ‘‘[a] pollutant for which a 

national ambient air quality standard 

has been promulgated* * *.’’ 401 KAR 

51:001(207). In assessing permits issued 

by the Commonwealth, EPA routinely 

interprets the ‘‘for which a national 


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10For example, EPA is currently reviewing the 

Suncoke Energy PSD Application (PSD–KY–265), 

which was submitted to DAQ on December 7, 2012, 

and received by EPA for review February 7, 2013. 

The terms of this application reflect the 2008 8-hour 

ozone standard as the applicable NAAQS. 

11An exceedance occurs when monitored ozone 

concentrations exceed the NAAQS. Ozone is 

collected as an hourly average of continuous data 

and, in the context of the 2008 8-hour ozone 

NAAQS is then used to determine the daily 8-hour 

average value. An ozone exceedance occurs when 

a monitor records an 8-hour averaged ambient level 

of ozone above the standard, in this case, above 

0.075 parts per million (ppm). A violation of an 

ozone standard (as opposed to an exceedance) is 

based on 3-year averages of data. Violations of the 

8-hour standard are determined using the annual 

4th-highest daily maximum 8-hour ozone value at 

each monitor. A violation requires a 3-year average 

of the annual 4th-highest daily maximum 8-hour 

value that is greater than 0.075 ppm. 

12EPA notes that Kentucky provides this 

information for monitors through the 

Commonwealth, and that the locations of the 

monitors are included in the Commonwealth’s 

approved network monitoring plan. Thus this 

information is available for appropriate locations 

throughout the state. 

ambient air quality standard has been 

promulgated’’ language in the Kentucky 

SIP as referring to the current federallypromulgated NAAQS. EPA notes that in 

practice the Commonwealth is also 

addressing the 2008 8-hour ozone 

NAAQS.10

Finally, EPA understands that the 

Commonwealth has initiated action to 

update the out-of-date table cited by the 

Commenter to eliminate any ambiguity 

or confusion regarding this point. In 

consultation with the Commonwealth, 

EPA’s understanding is that the 

Commonwealth is in the process of 

updating the table to reflect the current 

NAAQS. EPA believes that, with 

correction of the table, there should be 

no misunderstandings concerning the 

fact that the Commonwealth’s SIP is 

designed to address the 2008 8-hour 

ozone NAAQS in accordance with the 

requirements of section 110(a)(1) and 

(2). As such, EPA does not agree that 

Kentucky’s infrastructure SIP 

submission must be disapproved as a 

result of the out-of-date table cited by 

the Commenter. 

Comment 11: One Commenter 

contends that EPA cannot determine 

that the Kentucky SIP provides the 

necessary assurances required by 

section 110(a)(2)(E)(i) that the 

Commonwealth will have adequate 

personnel, funding and authority under 

state law to carry out its implementation 

plan given (in the Commenter’s opinion) 

that Kentucky’s infrastructure SIP fails 

to adequately address the significant 

and important requirements of element 

(D)(i). 

Response 11: EPA does not agree. 

Section 110(a)(2)(E)(i) requires that the 

SIP provide ‘‘necessary assurances that 

the State * * * will have adequate 

personnel, funding, and authority under 

State * * * law to carry our such 

implementation plan * * *.’’ As 

described in the proposal for today’s 

action, Kentucky has submitted 

information to demonstrate that DAQ is 

responsible for promulgating rules and 

regulations for the NAAQS, emissions 

standards, general policies, a system of 

permits, fee schedules for the review of 

plans and other planning needs. In 

addition, EPA noted the March 14, 

2012, Agency letter to DAQ outlining 

the current status of grant commitments 

for 2011, each of which have since been 

finalized. Finally, the proposed rule for 

today’s action described that Kentucky’s 

personnel, funding, and legal authority 

to carry out the Commonwealth’s 

implementation plan is included with 

all prehearings and final SIP submittals 

to EPA. Based upon this information 

EPA proposed to approve Kentucky’s 

infrastructure submission for purposes 

of the 2008 8-hour ozone NAAQS. The 

Commenter does not refute these facts. 

While the Commenter is correct in 

asserting that Kentucky’s infrastructure 

SIP presently fails to address section 

110(a)(2)(D)(i)(I) for the 2008 8-hour 

ozone NAAQS, it is incorrect to 

conclude that such failure must result in 

a disapproval of section 110(a)(2)(E)(i). 

EPA does not view the satisfaction of 

section 110(a)(2)(D)(i)(I) requirements as 

germane to an evaluation of whether a 

state has met its obligations under 

section 110(a)(2)(E)(i). Rather, EPA 

interprets section 110(a)(2)(E)(i) as 

requiring that the state have adequate 

authority under statutes, rules, and 

regulations to carry out applicable SIP 

obligations with respect to the relevant 

NAAQS. See 40 CFR Part 51, Subparts 

L and O. 

As described above, EPA’s 

disapproval of the Kentucky 

infrastructure SIP as it relates to the 

section 110(a)(2)(D)(i)(I) transport 

requirements is based upon the 

Commonwealth’s reliance upon CAIR to 

satisfy the interstate transport 

obligations of a NAAQS which CAIR 

did not address. The fact that this 

portion of the SIP cannot be approved, 

however, does not in any way 

demonstrate a deficiency in the 

underlying authority of the Kentucky 

DAQ to promulgate rules and 

regulations to address these 

requirements. The Commenter provided 

no information to suggest that Kentucky 

lacks the personnel, authority to address 

the interstate transport requirements. 

Comment 12: One Commenter asserts 

that EPA must disapprove Kentucky’s 

infrastructure SIP related to section 

110(a)(2)(J) (127 public notice 

requirements) because in the 

Commenter’s opinion Kentucky does 

not provide public notification of 2008 

8-hour ozone NAAQS violations in 

areas beyond Oldham and Jefferson 

counties. Specifically, the Commenter 

indicates that the state agency does not 

notify the public of 2008 8-hour ozone 

violations in counties that are currently 

designated attainment for the 1-hour 

and 1997 8-hour standards (i.e., all 

counties but Jefferson and Oldham). 

Response 12: EPA does not agree with 

the Commenter’s assertion that EPA 

must disapprove Kentucky’s 

infrastructure SIP submission as it 

relates to the section 110(a)(2)(J) 

requirements for public notification 

because the SIP does not provide for 

public notification of 2008 8-hour ozone 

NAAQS violations. 

First the Commenter fails to note the 

distinction between exceeding the 

ozone NAAQS and violating the ozone 

NAAQS. Under the CAA, there is a clear 

distinction between a violation and an 

exceedance of an ambient air quality 

standard.11 Pursuant to the public 

notification requirements of section 

110(a)(2)(J), states are not required to 

notify the public of NAAQS violations 

as suggested by the Commenter. Instead, 

states are required ‘‘to notify the public 

during any calendar [year] on a regular 

basis of instances or areas in which any 

national primary ambient air quality 

standard is exceeded or was exceeded 

during any portion of the preceding 

calendar year * * *’’ (emphasis added). 

See 42 U.S.C. 7427. 

Second, the Commenter is mistaken 

because the Commonwealth does notify 

the public regarding ambient air quality 

in Kentucky, including exceedances of 

the standard. As described in the 

proposal for today’s action, notification 

to the public regarding exceedances is 

accomplished through Kentucky DAQ’s 

Web site at http://air.ky.gov/Pages/ 

AirQualityIndexMonitoring.aspx, which 

provides real time monitoring data for 

all of the Commonwealth’s ozone 

monitors and provides access to Air 

Quality Index (AQI) information.12 In 

addition, Kentucky’s Web site also 

provides information related to health 

considerations based on the 

concentration of the pollutants in the air 

and information related to ways the 

public can help reduce air pollution. 

EPA has determined that that this 

method of notify the public of ambient 

quality is sufficient to meet Kentucky’s 

infrastructure SIP obligations described 

at section 110(a)(2)(J) regarding public 

notification. 

Finally, EPA also notes that this 

comment presupposes that there have 


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13EPA also wishes to clarify that Commenter 

incorrectly indicates that all counties aside from 

Jefferson and Oldham are designated attainment for 

the 2008 8-hour ozone NAAQS. There are also three 

partial counties in Northern Kentucky (i.e., Boone, 

Campbell and Kenton) are designated 

nonattainment for the 2008 8-hour ozone NAAQS 

as part of the Cincinnati-Hamilton Nonattainment 

Area. The Campbell County monitor referred to by 

the Commenter is included in the 2008 8-hour 

ozone nonattainment area and is not in area 

designated attainment as suggested by one 

Commenter. See 77 FR 30088. 

been violations of the 2008 ozone 

NAAQS based on 2010 to 2012 design 

values which have yet to be certified. 

Although the Kentucky DAQ maintains 

the above-referenced Web site with real 

time monitoring data for the 

Commonwealth’s ozone monitors, 

Kentucky is not required to certify each 

year’s data until April 1, 2013. As such, 

until the 2012 data referenced by the 

Commenter is certified, it remains 

preliminary and EPA does not view a 

NAAQS violation as having occurred. 

Consequently, the Commenter’s 

reference to data not-yet-certified is 

premature.13

III. This Action 

In this rulemaking, EPA is taking final 

action to approve Kentucky DAQ’s 

infrastructure submission as 

demonstrating that the Commonwealth 

meets the applicable requirements of 

sections 110(a)(1) and (2) of the CAA for 

the 2008 8-hour ozone NAAQS, with the 

exception of section 110(a)(2)(D)(i)(I) 

concerning interstate transport, and 

sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J) 

pertaining to structural PSD 

requirements. 

With respect to section 

110(a)(2)(D)(i)(I), which pertains to 

interstate transport, EPA is taking final 

action to disapprove this portion of 

Kentucky DAQ’s infrastructure SIP for 

the 2008 8-hour ozone NAAQS. 

With respect to sections 110(a)(2)(C), 

prong 3 of 110(a)(2)(D)(i), and 

110(a)(2)(J), EPA is finalizing 

conditional approval for this portion of 

Kentucky DAQ’s infrastructure SIP for 

the 2008 8-hour ozone NAAQS. Today’s 

final action to conditionally approve of 

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

prong 3 of 110(a)(2)(D)(i), and 

110(a)(2)(J) specifically related to the 

structural PSD requirements is based 

upon a December 19, 2012, commitment 

letter submitted by Kentucky DAQ to 

EPA. The Commonwealth’s December 

19, 2012, letter can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0700. 

Through this letter, Kentucky DAQ, 

committed to adopt specific enforceable 

measures to address current deficiencies 

in its SIP related to the structural PSD 

requirements of the PSD and NNSR 

requirements related to the 

implementation of the NSR PM2.5 Rule 

and the PM2.5 PSD Increment-SILs-SMC 

Rule (only as it relates to PM2.5

Increments). This commitment letter 

meets the requirements of section 

110(k)(4) of the CAA, and as such, EPA 

is relying upon this commitment to 

conditionally approve sections 

110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 

and 110(a)(2)(J). For more information, 

see EPA’s proposal for today’s 

rulemaking. See 78 FR 3867. 

Accordingly, for purposes of today’s 

conditional approval sections 

110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 

and 110(a)(2)(J) as it relates to the 

structural PSD requirements, Kentucky 

DAQ must submit to EPA by March 10, 

2014, a SIP revision adopting the 

specific enforceable measures as 

described in the Commonwealth’s 

commitment letter described above. If 

the Commonwealth fails to actually 

submit this revision by March 10, 2014, 

today’s conditional approval will 

automatically become a disapproval for 

the 2008 8-hour ozone NAAQS. 

IV. Final Action 

EPA is taking final action to approve 

most elements contained in Kentucky 

DAQ’s infrastructure SIP submission 

made by the Commonwealth on 

September 8, 2009, as revised on July 

17, 2012, because it addresses the 

required infrastructure elements for the 

2008 8-hour ozone NAAQS with 

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

3 of 110(a)(2)(D)(i), and 110(a)(2)(J) as 

they relate to structural PSD 

requirements, and section 

110(a)(2)(D)(i)(I) as it relates to interstate 

transport. With the exceptions noted 

above Kentucky DAQ has addressed the 

elements of the CAA 110(a)(1) and (2) 

SIP requirements pursuant to section 

110 of the CAA to ensure that the 2008 

8-hour ozone NAAQS are implemented, 

enforced, and maintained in Kentucky. 

With respect to section 

110(a)(2)(D)(i)(I) specifically pertaining 

interstate transport, EPA is finalizing 

disapproval for this portion of Kentucky 

DAQ’s infrastructure SIP for the 2008 8- 

hour ozone NAAQS. 

With respect to sections 110(a)(2)(C), 

prong 3 of 110(a)(2)(D)(i), and 

110(a)(2)(J) as they relate to the 

structural PSD requirements of the PSD 

and NNSR requirements related to the 

implementation of the NSR PM2.5 Rule 

and the PM2.5 PSD Increment-SILs-SMC 

Rule (only as it relates to PM2.5

Increments), EPA is taking final action 

to conditionally approve the 

Commonwealth’s infrastructure SIP in 

part, based on an December 19, 2012, 

commitment that Kentucky DAQ will 

adopt specific enforceable measures 

related to the structural PSD 

requirements detailed above into its SIP 

and submit these revisions to EPA by 

March 10, 2014. If the Commonwealth 

fails to actually submit these revisions 

by the applicable dates described above, 

today’s conditional approval(s) will 

automatically be disapproved on that 

date. 

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 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 


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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 May 6, 2013. 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 dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: March 1, 2013. 

A. Stanley Meiburg 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

■ 2. Section 52.919 is amended by 

designating the existing undesignated 

paragraph as paragraph (a) and adding 

paragraph (b) to read as follows: 

§ 52.919 Identification of plan-conditional 

approval. 

(a) * * * 

(b) Conditional Approval—Submittal 

from the Commonwealth of Kentucky, 

through the Division of Air Quality 

(DAQ) of the Kentucky Energy and 

Environment Cabinet, dated December 

19, 2012, to address the Clean Air Act 

(CAA) sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J) for the 

2008 8-hour Ozone National Ambient 

Air Quality Standards. With respect to 

CAA sections 110(a)(2)(C), prong 3 of 

110(a)(2)(D)(i), and 110(a)(2)(J), the 

Commonwealth must submit to EPA by 

March 10, 2014, SIP revisions adopting 

specific enforceable measures related 

the structural PSD requirements of the 

PSD and NNSR requirements related to 

the implementation of the NSR PM2.5

Rule and the PM2.5 PSD Increment-SILsSMC Rule (only as it relates to PM2.5

Increments) as described in the 

Commonwealth’s commitment letter. 

■ 3. In § 52.920, the table in paragraph 

(e) is amended by adding a new entry 

‘‘110(a)(1) and (2) Infrastructure 

Requirements for the 2008 8-Hour 

Ozone National Ambient Air Quality 

Standards’’ at the end of the table to 

read as follows: 

§ 52.920 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS

Name of non-regulatory 

SIP provision 

Applicable 

geographic or nonattainment area 

State submittal 

date/effective 

date 

EPA approval date Explanations 

* * * * * * * 

110(a)(1) and (2) Infrastructure Requirements for the 2008 8- 

Hour Ozone National 

Ambient Air Quality 

Standards.

Commonwealth of Kentucky.7/17/2012 3/7/2013 .......................

[Insert citation of publication].

With the exception of section 110(a)(2)(D)(i)(I) 

concerning interstate transport which is being 

disapproved and, the portions of sections 

110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 

110(a)(2)(J) related to structural PSD requirements, which are being conditionally approved. 

■ 4. Section 52.930 is amended by 

adding paragraph (l) to read as follows: 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 78, No. 45 / Thursday, March 7, 2013 / Rules and Regulations 14689 

§ 52.930 Control strategy: Ozone. 

* * * * * 

(l) Disapproval. EPA is disapproving 

in part, the Commonwealth of 

Kentucky’s Infrastructure SIP for the 

2008 8-hour Ozone National Ambient 

Air Quality Standards addressing 

section 110(a)(2)(D)(i)(I) concerning 

interstate transport requirements, 

submitted July 17, 2012. 

[FR Doc. 2013–05352 Filed 3–6–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 412 

[CMS–1588–N] 

RIN 0938–AR12 

Medicare Program; Extension of the 

Payment Adjustment for Low-volume 

Hospitals and the Medicare-dependent 

Hospital (MDH) Program Under the 

Hospital Inpatient Prospective 

Payment Systems (IPPS) for Acute 

Care Hospitals for Fiscal Year 2013 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Notice of extension. 

SUMMARY: This notice announces 

changes to the payment adjustment for 

low-volume hospitals and to the 

Medicare-dependent hospital (MDH) 

program under the hospital inpatient 

prospective payment systems (IPPS) for 

FY 2013 in accordance with sections 

605 and 606, respectively, of the 

American Taxpayer Relief Act of 2012. 

DATES: Effective date: March 4, 2013. 

Applicability dates: The provisions 

described in this notice are applicable 

for discharges on or after October 1, 

2012 and on or before September 30, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Michele Hudson, (410) 786–5490. 

Maria Navarro, (410) 786–4553. 

Shevi Marciano, (410) 786–2874. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On January 2, 2013, the American 

Taxpayer Relief Act of 2012 (ATRA) 

(Pub. L. 112–240) was enacted. Section 

605 of the ATRA extends changes to the 

payment adjustment for low-volume 

hospitals for an additional year, through 

fiscal year (FY) 2013. Section 606 of the 

ATRA extends the Medicare-dependent 

hospital (MDH) program for an 

additional year, through FY 2013. 

II. Provisions of the Notice 

A. Extension of the Payment Adjustment 

for Low-Volume Hospitals 

1. Background 

Section 1886(d)(12) of the Social 

Security Act (the Act) provides for an 

additional payment to each qualifying 

low-volume hospital under the hospital 

inpatient prospective payment systems 

(IPPS) beginning in FY 2005. Sections 

3125 and 10314 of the Affordable Care 

Act provided for a temporary change in 

the low-volume hospital payment policy 

for FYs 2011 and 2012. Prior to the 

enactment of the ATRA, beginning with 

FY 2013, the low-volume hospital 

qualifying criteria and payment 

adjustment returned to the statutory 

requirements under section 1886(d)(12) 

of the Act that were in effect prior to the 

amendments made by the Affordable 

Care Act. (For additional information on 

the expiration of the provisions of the 

Affordable Care Act that amended the 

low-volume hospital adjustment at 

section 1886(d)(12) of the Act, we refer 

readers to the FY 2013 IPPS/LTCH PPS 

final rule (77 FR 53406 through 53408).) 

The regulations describing the payment 

adjustment for low-volume hospitals are 

at 42 CFR 412.101. 

2. Low-Volume Hospital Payment 

Adjustment for FYs 2011 and 2012 

For FYs 2011 and 2012, sections 3125 

and 10314 of the Affordable Care Act 

expanded the definition of low-volume 

hospital and modified the methodology 

for determining the payment adjustment 

for hospitals meeting that definition. 

Specifically, the provisions of the 

Affordable Care Act amended the 

qualifying criteria for low-volume 

hospitals under section 1886(d)(12)(C)(i) 

of the Act to specify that, for FYs 2011 

and 2012, a hospital qualifies as a lowvolume hospital if it is more than 15 

road miles from another subsection (d) 

hospital and has less than 1,600 

discharges of individuals entitled to, or 

enrolled for, benefits under Part A 

during the fiscal year. In addition, 

section 1886(d)(12)(D) of the Act, as 

added by the Affordable Care Act, 

provides that the low-volume hospital 

payment adjustment (that is, the 

percentage increase) is to be determined 

‘‘using a continuous linear sliding scale 

ranging from 25 percent for low-volume 

hospitals with 200 or fewer discharges 

of individuals entitled to, or enrolled 

for, benefits under Part A in the fiscal 

year to zero percent for low-volume 

hospitals with greater than 1,600 

discharges of such individuals in the 

fiscal year.’’ 

We revised the regulations at 42 CFR 

412.101 to reflect the changes to the 

qualifying criteria and the payment 

adjustment for low-volume hospitals 

according to the provisions of the 

Affordable Care Act in the FY 2011 

IPPS/LTCH PPS final rule (75 FR 50238 

through 50275 and 50414). In addition, 

we also defined, at § 412.101(a), the 

term ‘‘road miles’’ to mean ‘‘miles’’ as 

defined at § 412.92(c)(1), and clarified 

the existing regulations to indicate that 

a hospital must continue to qualify as a 

low-volume hospital in order to receive 

the payment adjustment in that year 

(that is, it is not based on a one-time 

qualification). Furthermore, in that same 

final rule, we discussed the process for 

requesting and obtaining the lowvolume hospital payment adjustment for 

FY 2011 (75 FR 50240). For the second 

year of the changes to the low-volume 

hospital adjustment provided for by the 

provisions of the Affordable Care Act 

(that is, FY 2012), consistent with the 

regulations at § 412.101(b)(2)(ii), we 

updated the discharge data source used 

to identify qualifying low-volume 

hospitals and calculate the payment 

adjustment (percentage increase) in the 

FY 2012 IPPS/LTCH PPS final rule (76 

FR 51677 through 51680). Under 

§ 412.101(b)(2)(ii), for FYs 2011 and 

2012, a hospital’s Medicare discharges 

from the most recently available 

MedPAR data, as determined by CMS, 

are used to determine if the hospital 

meets the discharge criteria to receive 

the low-volume payment adjustment in 

the current year. In that same final rule, 

we established that, for FY 2012, 

qualifying low-volume hospitals and 

their payment adjustment are 

determined using Medicare discharge 

data from the March 2011 update of the 

FY 2010 MedPAR file, as these data 

were the most recent data available at 

that time. In addition, we noted that 

eligibility for the low-volume payment 

adjustment for FY 2012 was also 

dependent upon meeting (if the hospital 

was qualifying for the low-volume 

payment adjustment for the first time in 

FY 2012), or continuing to meet (if the 

hospital qualified in FY 2011) the 

mileage criteria specified at 

§ 412.101(b)(2)(ii). Furthermore, we 

established a procedure for a hospital to 

request low-volume hospital status for 

FY 2012 (which was consistent with the 

process we employed for the lowvolume hospital payment adjustment for 

FY 2011). 


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