ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-RO4-OAR-2009-1014-201026; JML- ] 

Approval and Promulgation of Implementation Plans; Commonwealth of Kentucky; 

Prevention of Significant Deterioration and Nonattainment New Source Review Rules: 

Nitrogen Oxide as Precursor to Ozone 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to approve a revision to the Commonwealth of 

Kentucky's State Implementation Plan (SIP), submitted to EPA by the Kentucky Energy 

and Environment Cabinet, through the Kentucky Division for Air Quality (KDAQ), on 

February 5,2010. The revision modifies Kentucky's prevention of signLficant 

deterioration (PSD) and nonattainment new source review (NNSR) permitting regulations 

in Kentucky's SIP to address permit requirements promulgated in the 1997 8-Hour Ozone 

National Ambient Air Quality Standards (NAAQS) Implementation Rule-Phase I1 

(hereafter referred to as the "Ozone Implementation NSR Update"). The Ozone 

Implementation NSR Update revised permit requirements relating to the implementation 

of the 1997 8-hour ozone NAAQS, specifically, incorporating nitrogen oxides (NOx) as a 

precursor to ozone. EPA's approval of Kentucky's provisions to include NOx as an 

ozone precursor into the Kentucky SIP is based on EPA's determination that Kentucky's 

SIP revision related to these provisions complies with federal requirements. EPA is also 
addressing the general adverse comments received on EPA's proposal to approve NOx as 

an ozone precursor for permitting purposes into the Kentucky SIP. 

The February 5,2010, SIP revision also included provisions to exclude facilities 

that produce ethanol through a natural fermentation process from the definition of 

"chemical process plants" in the NSR major source permitting program in the Kentucky 

SIP. EPA also received adverse comments for its proposal to approve these provisions. 

At this time, EPA is not taking final action on Kentucky's provisions to exclude facilities 

that produce ethanol through a natural fermentation process from the definition of 

"chemical process plants" in the NSR major source permitting program. EPA will 

consider the comments received regarding these provisions and take any frnal action for 

these provisions in a separate rulemaking. 

EFFECTIVE DATE: This rule will be effective [insert 30 days after date of publication 

in the Federal Register]. 

ADDRESSES: EPA has established a docket for this action under Docket Identification 

No. EPA-R04-OAR-2009-1014. 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 to 4:30, excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: For information regarding the 

Kentucky SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air 

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

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

Bradley can be reached via telephone at (404) 562-9352 and electronic mail at 

bradlev.twuniala@e~a.nov. For information regarding NSR, contact Ms. Yolanda 

Adams, Air Permits Section, at the same address above. Ms. Adams can be reached via 

telephone at (404) 562-9214 and electronic mail at adams.volanda@epa.gov. For 

information regarding 8-hour ozone NAAQS, contact Ms. Jane Spann, Regulatory 

Development Section, at the same address above. Ms. Spann can be reached via 

telephone at (404) 562-9029 and electronic mail at spann.iane@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

11. Today's Action 
111. Comments and Responses 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On February 5,2010, the Commonwealth of Kentucky, through KDAQ, 

submitted a revision to the Kentucky SIP which relates to Kentucky's Air Quality 

Regulations, Chapter 5 1 - 401 Kentucky Administrative Regulation (KAR) 5 1:001 

"Definitions for 401 KAR Chapter 5 1," 401 KAR 5 1:017 "Prevention of Si@icant 

Deterioration of Air Quality," and 401 KAR 51:052 "Review of New Sources in or 

Impacting upon Nonattainment Areas." The SIP revision addressed various issues.' This 

final action addresses only one component of the February 5,2010, submittal - the Ozone 

Implementation NSR Update requirements, as contained in 40 Code of Federal 

Regulations (CFR) 5 1.165 and 5 1.166, and promulgated on November 29,2005, as part 

of EPA's Ozone Implementation NSR Update. 

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

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

designated areas as attainment, nonattainment and unclassifiable for the 1997 8-hour 

ozone NAAQS. As part of the 2004 designations, EPA also promulgated an 

' Kentucky's February 5,2010, SIP revision also included provisions for excluding facilities that produce 

ethanol through a natural fermentation process from the definition of "chemical process plants" in the NSR 

major source permitting program. In an action published on April 1,2010 (75 FR 16388), EPA proposed to 

approve the aforementioned revisions into the Kentucky SIP. At this time, EPA is not taking action on the 

ethanol provisions. On a separate, unrelated issue, the rule revisions provided in Kentucky's February 5, 

2010, submittal also requested the removal of certain provisions for clean units (CU) and pollution control 

projects (PCP), which were vacated by the United States Court of Appeals for the District of Columbia 

Circuit. EPA has not previously taken action to approve that portion of Kentucky's submittal (regarding 

the vacated rules) and EPA is not now taking action on those provisions. 
implementation rule for the 1997 8-hour ozone NAAQS in two phases. Phase I of EPA's 

1997 8-hour ozone implementation rule (Phase 1 Rule), published on April 30,2004, and 

effective on June 15,2004, provided the implementation requirements for designating 

areas under subpart 1 and subpart 2 of the CAA. See 69 FR 23857. 

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

provisions related to the 1997 8-hour ozone NAAQS - also known as the Phase I1 Rule. 

See 70 FR 71612. The Phase I1 Rule addressed control and planning requirements as 

they applied to areas designated nonattainrnent for the 1997 8-hour ozone NAAQS which 

included NSR requirements. Specific to this rulemaking, the Phase I1 Rule made changes 

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

permitting programs. The revisions to the NSR permitting requirements in the Phase I1 

Rule are also known as the Ozone Implementation NSR Update. 

Specifically, the Phase I1 Rule requirements included, among other changes, a 

new provision stating that NOx is an ozone precursor. See 70 FR 71612, (page 71679) 

(November 29, 2005). In the Phase I1 Rule, EPA stated as follows: 

"The EPA has recognized NOx as an ozone precursor in several national 

rules because of its contribution to ozone transport and the ozone 

nonattainrnent problem. The EPA's recognition of NOx as an ozone 

precursor is supported by scientific studies, which have long recognized 

the role of NOx in ozone formation and transport. Such formation and 

transport is not limited to nonattainment areas. Therefore, we believe NOx 

should be treated consistently as an ozone precursor in both our PSD and 
nonattainment NSR regulations. For these reasons we have promulgated 

final regulations providing that NOx is an ozone precursor ..." 

In the Phase I1 Rule, EPA established that states must submit SIPS incorporating required 

changes (including the addition of NOx as a precursor for ozone) no later than June 15, 

2007. See 70 FR 71612 (page 71683). 

On February 5,2010, Kentucky submitted a revision to include NOx as a 

precursor for ozone for PSD and NNSR permitting purposes in order to comply with the 

Phase I1 Rule. 

11. Today's Action 

EPA has determined that Kentucky's February 5,2010, SIP revision revising 

Kentucky's PSD and NNSR permit programs is consistent with changes to the Federal 

NSR requirements (40 CFR 5 1.165 and 5 1.166, and the Phase I1 Rule) relating to the 

incorporation of NOx as an ozone precursor. The revision, which became state-effective 

on February 5,2010, is included in Kentucky's PSD and NNSR programs and meets the 

requirements of the Phase I1 Rule by identifying NOx as a precursor for ozone.2 

EPA received comments on its proposal to approve the Kentucky SIP revision to 

incorporate NOx as a precursor for ozone, on April 29,2010, from the Law Office of 

Robert Ukeiley on behalf of the Sierra Club and Valley Watch, Incorporated. The 

comments opposed approval of the SIP revision. EPA's responses to these comments can 

be found in Section I11 of this rulemaking. 

* The Kentucky rules were formatted to conform to Kentucky rule drafting standards (KRS Chapter 13A), 

but in substantive content the rules are the same as the Federal rules. 
111. Comments and Responses 

On April 29,2010, EPA received a letter providing comments on EPA's proposal 

to approve Kentucky's February 5,2010, SIP revision to include NOx as a precursor for 

ozone for PSD and NNSR purposes. Below is a summary of the comments and EPA's 

response. 

~omments:~ The comments acknowledged that "[tlhis revision is long overdue;" 

however, the comments further stated that, "EPA should not approve Kentucky's revision 

just because it is "line-by-line" consistent with the federal rules." 

The comments expressed concerns regarding Kentucky's implementation of 

modeling requirements for ozone, particularly in reference to certain coal-fired utilities in 

Kentucky (that were specifically identified in the letter), and for those reasons, the 

Commenter appears to oppose the SIP revision. The Commenter explains that "[tlhis 

proposed rulemaking is EPA's opportunity to provide Kentucky with much-needed 

direction on how to ensure air quality does not further degrade." One basis for the 

Cornmenter's concerns appears to be his position on Kentucky's attainment status for the 

ozone NAAQS as well as some permitting activities. The Commenter explains his 

position on Kentucky's alleged noncompliance with ozone requirements particularly with 

regard to issuing permits for major new sources of air pollution. The concerns seemed 

focused on ozone related modeling and monitoring. Further, the Commenter explains his 

concerns regarding ozone preconstruction monitoring at certain stationary sources. 

The Commenter concludes by explaining that "[tlhe proposed SIP revision is 

EPA's opportunity to work with the state of Kentucky to design a program that will help 

A full text of the comments is available in the Docket for this action. Electronic docket information can 

be found in the "Addresses" portion of this notice. The comments are summarized in this document; 

however, EPA considered all the comments expressed in the letter. 
Kentucky achieve present and future attainment with ozone standards." The Commenter 

requests that EPA (I) not approve the SIP revision until Kentucky agrees to make serious 

efforts at attaining and assuring continuing attainment with the ozone standards; and (2) 

use its powers under CAA Section 167 to prevent construction of three major sources of 

ozone precursor pollution (identified in the letter). 

Response: EPA's Phase I1 Rule required states to add NOx as a precursor for ozone 

to their SIPs. EPA explained the basis for that decision in the Phase I1 Rule, which is part 

of the CAA program to improve air quality and reduce ground-level ozone. The air 

quality benefits were the primary basis for EPA's final action in the Phase I1 Rule 

requiring states to incorporate NOx as a precursor for ozone in their SIPs. See 68 FR 

32802 (proposal); 70 FR 71612,71674,71679 (final Phase I1 Rule). The Commenter 

acknowledges that this action is "overdue" and recognizes that NOx is in fact a precursor 

for ozone. While the comments are adverse in the sense that they request that EPA not 

approve the SIP revision, the comments provide no scientific or legal basis for EPA to 

disapprove Kentucky's February 5,2010, SIP revision. The comments are focused on 

concerns about Kentucky's major source air program, and include no specific information 

explaining why adding NOx as a precursor to ozone in Kentucky's PSD and NNSR 

programs is contrary to the CAA or its implementing regulations. 

Notably, the Commenter has raised similar concerns in response to other actions 

(e.g., permit revisions and other SIP revisions), including a lawsuit against EPA seeking 

EPA to use Clean Air Act Section 167 at certain coal-fired utilities in Kentucky. In a 

letter dated April 17,2009 (which was resubmitted on January 20,2010), the Commenter 
provided adverse comments to EPA regarding a separate (and unrelated) proposed 

approval actions for four Kentucky 1 lO(a)(l) maintenance plans, stating 

"the Kentucky PSD program only requires that sources conduct ambient 

monitoring and impact analysis when a source is over 100 tons per year of 

[volatile organic compounds]. See 401 KAR 51:017 5 7(5)(a). The 

Kentucky PSD program illegally leaves out major sources of NOx. Id." 

In that separate action, the Commenter supported disapproval based on NOx not being 

listed as an ozone precursor in the Kentucky SIP. Nonetheless, in this action to 

incorporate NOx as a precursor for ozone, the same Commenter is opposing the action. 

Commenter appears to be trying to achieve changes not directly related to the SIP 

revision at issue, but more specifically focused on certain major stationary sources 

identified in the letter. These other actions have their own independent regulatory 

processes wherein Commenter has other opportunities to raise concerns and seek 

changes. 

EPA's action to approve NOx as a precursor for ozone in Kentucky supports the 

improvement of air quality in Kentucky, in part because of the associated modeling and 

monitoring requirements. EPA's approval of this SIP revision ensures that Kentucky's 

PSD and NNSR permit programs are consistent with the Federal NSR permit 

requirements (40 CFR 5 1.165 and 5 1.166) relating to the incorporation of NOx as an 

ozone precursor set forth in the Phase I1 Rule. 

IV. Final Action 
Pursuant to Section 110 of the CAA, EPA is taking final action to approve 

Kentucky's SIP revision submitted February 5,2010, which incorporates NOx as an 1 

ozone precursor for PSD and NNSR purposes into the Kentucky SIP. The revision 

included in Kentucky's PSD and NNSR programs is equivalent to the provision in the 

Ozone Implementation NSR Update. EPA is approving these revisions into the Kentucky 

SIP because they are consistent with the CAA and its implementing regulations. 

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 Off~ce of 

Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 

1993); 

does not impose an mformation collection burden under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 3501 et seq.); 

is certified as not having a significant economic impact on a substantial number of 

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); 
does not contain any unfunded mandate or significantly or uniquely affect small 

governments, as described in the Unfunded Mandates Reform Act of 1995 

(Public Law 104-4); 

does not have Federalism implications as specified in Executive Order 13 132 (64 

FR 43255, August 10, 1999); 

is not an economically significant regulatory action based on health or safety risks 

subject to Executive Order 13045 (62 FR 19885, April 23, 1997); 

is not a significant regulatory action subject to Executive Order 1321 1 (66 FR 

28355, May 22,2001); 

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

Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application 

of those requirements would be inconsistent with the CAA; and 

does not provide EPA with the discretionary authority to address, as appropriate, 

disproportionate human health or environmental effects, using practicable and 

legally permissible methods, under Executive Order 12898 (59 FR 7629, 

February 16, 1994). 

In addition, this rule does not have tribal implications as specified by Executive Order 

13175 (65 FR 67249, November 9,2000), because the SIP is not approved to apply in 

Indian country located in the state, and EPA notes that it will not impose substantial 

direct costs on tribal governments or preempt tribal law. 

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a 

rule may take effect, the agency promulgating the rule must submit a rule report, which 
includes a copy of the rule, to each House of the Congress and to the Comptroller 

General of the United States. EPA will submit a report containing this action and other 

required information to the U.S. Senate, the U.S. House of Representatives, and the 

Comptroller General of the United States prior to publication of the rule in the Federal 

Register. A major rule cannot take effect until 60 days after it is published in the Federal 

Register. This action is not a "major rule" as defined by 5 U.S.C. 804(2). 

Under section 307(b)(l) 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 

[FEDERAL REGISTER OFFICE: insert date 60 days from date of ~ublication of this 

document in the Federal Register]. 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, Ozone and Volatile organic compounds. 

Acting Regional Administrator, 

Region 4. 
40 CFR part 52 is amended as follows: 

PART 52-[AMENDED] 

1. The authority citation for part 52 continues to read as follows: 

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

Subpart S - Kentucky 

2. Section 52.919 (c) Table 1 is amended by revising the entries for "401 KAR 5 1:001," 

"401 KAR 51:017," and "401 KAR 51:052" to read as follows: 

5 52.919 Identification of plan 

***** 
Chapter 5 1 A 

$01 KAR 51:OOl 

EPA-Approved Kentucky Approved Kentucky Regclations 

401 KAR 51:017 

f 

iinment and Maintc 

Definitions for 

401 KAR Chapter 

5 1 

Explanation 

Prevention of 

siWcant 

deterioration of 

air quality 

EPA app~oval 

date 

* 

ance of the Nai 

2/5/20 10 

State effective 

date 

* 

State Citation 

k* 

mal Ambient A 

[Insert 

date of 

publication 

in Federal 

Register1 

[Insert citation 

of 

publication] 

Titlelsubject 

* * 

[Insert 

date of 

publication 

in Federal 

Register] 

[Insert citation 

of 

publication] 

Quality Standards 

Except the phrase 

"except ethanol 

production facilities 

producing ethanol by 

natural fermentation 

under the North 

American Industry 

Classification System 

(NAICS) codes 325 19 

or 312140," in 401 

KAR 5 1:001 Section1 

(1 l8)(l)(b)(i) and the 

phrase "except ethanol 

production facilities 

producing ethanol by 

natural fermentation 

under NAICS codes 

325 193 or 3 12140,'' in 

401 KAR 51:001 

Section l(118) 

(2)(c)(20) 

Except the phrase 

"except ethanol 

production facilities 

producing ethanol by 

natural fermentation 

under the North 

American Industry 

Classification System 

(NAICS) codes 325 193 

or 312140;" in 401 

KAR 51:017 Section 

7(l)(c)20. 
Review of new 

sources in or 

impacting upon 

nonattainrnent 

areas. 

[Insert 

date of 

publication 

in Federal 

Register] 

[Insert citation 

of 

publication] 

Except the phrase 

"except ethanol 

production facilities 

producing ethanol by 

natural fermentation 

under the North 

American Industry 

Classification System 

(NAICS) codes 325 193 

or 312140," in 401 

KAR 5 l:OZ Section 2 

(3)(t)