55988 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

EPA APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State approval/submittal date 

EPA approval date Explanation 

*******

Chapter 116 (Reg 6)—Control of Air Pollution by Permits for New Construction or Modification 

*******

Subchapter B—New Source Review Permits 

*******

Division 6—Prevention of Significant Deterioration Review 

Section 116.160 ........ Prevention of Significant Deterioration Requirements.6/2/2010 9/15/2010 [Insert FR page number where 

document begins]. 

* * * * * * * 

* * * * * 

[FR Doc. 2010–22672 Filed 9–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–1014–201026; FRL– 

9201–1] 

Approval and Promulgation of 

Implementation Plans; Commonwealth 

of Kentucky; Prevention of Significant 

Deterioration and Nonattainment New 

Source Review Rules: Nitrogen Oxide 

as Precursor to Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: 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 significant 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 II 

(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 final action for 

these provisions in a separate 

rulemaking. 

DATES: Effective Date: This rule will be 

effective October 15, 2010. 

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 http:// 

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 http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Kentucky SIP, 

contact Ms. Twunjala Bradley, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Bradley can be reached via telephone at 

(404) 562–9352 and electronic mail at 

bradley.twunjala@epa.gov. 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.yolanda@epa.gov. For 

information regarding 8-hour ozone 

NAAQS, contact Ms. Jane Spann, 

Regulatory Development Section, at the 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55989 

1 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. 

2The 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. 

3A 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. 

same address above. Ms. Spann can be 

reached via telephone at (404) 562–9029 

and electronic mail at 

spann.jane@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Today’s Action 

III. 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 51—401 Kentucky 

Administrative Regulation (KAR) 51:001 

‘‘Definitions for 401 KAR Chapter 51,’’ 

401 KAR 51:017 ‘‘Prevention of 

Significant Deterioration of Air Quality,’’ 

and 401 KAR 51:052 ‘‘Review of New 

Sources in or Impacting upon 

Nonattainment Areas.’’ The SIP revision 

addressed various issues.1 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) 51.165 and 

51.166, 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 

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 II Rule. See 70 FR 

71612. The Phase II Rule addressed 

control and planning requirements as 

they applied to areas designated 

nonattainment for the 1997 8-hour 

ozone NAAQS which included NSR 

requirements. Specific to this 

rulemaking, the Phase II Rule made 

changes to Federal regulations 40 CFR 

51.165 and 51.166, which govern the 

NNSR and PSD permitting programs. 

The revisions to the NSR permitting 

requirements in the Phase II Rule are 

also known as the Ozone 

Implementation NSR Update. 

Specifically, the Phase II 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 II 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 nonattainment 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 II 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 II Rule. 

II. 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 

51.165 and 51.166, and the Phase II 

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 

II 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 III of this 

rulemaking. 

III. 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. 

Comments: 3 The comments 

acknowledged that ‘‘[t]his 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 coalfired 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 ‘‘[t]his 

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 Commenter’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 ‘‘[t]he proposed SIP 

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55990 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

revision is EPA’s opportunity to work 

with the state of Kentucky to design a 

program that will help Kentucky 

achieve present and future attainment 

with ozone standards.’’ The Commenter 

requests that EPA (1) 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 II Rule 

required states to add NOX as a 

precursor for ozone to their SIPs. EPA 

explained the basis for that decision in 

the Phase II 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 II 

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 II 

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 110(a)(1) 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 § 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 51.165 and 

51.166) relating to the incorporation of 

NOX as an ozone precursor set forth in 

the Phase II 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 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 Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 November 15, 2010. Filing a 

petition for reconsideration by the 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55991 

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, Ozone, Volatile organic 

compounds. 

Dated: September 1, 2010. 

Beverly H. Banister, 

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 52.920(c) Table 1 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 APPROVED KENTUCKY REGULATIONS

State citation Title/subject State effective date EPA approval date Explanation 

* * * * * **

Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards 

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

KAR Chapter 51.

2/5/2010 9/15/2010 [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 325193 or 312140,’’ in 401 KAR 

51:001 Section 1 (118)(1)(b)(i) and the 

phrase ‘‘except ethanol production facilities producing ethanol by natural fermentation under NAICS codes 325193 or 

312140,’’ in 401 KAR 51:001 Section 

1(118) (2)(c)(20). 

* * * * * **

401 KAR 51:017 ......... Prevention of significant deterioration 

of air quality.

2/5/2010 9/15/2010 [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 325193 or 312140;’’ in 401 KAR 

51:017 Section 7(1)(c)20. 

401 KAR 51:052 ......... Review of new 

sources in or impacting upon nonattainment areas.

2/5/2010 9/15/2010 [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 325193 or 312140,’’ in 401 KAR 

51:052 Section 2 (3)(t). 

* * * * * **

* * * * * 

[FR Doc. 2010–22856 Filed 9–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2006–0121; FRL–8839–3] 

Ammonium Formate; Exemption from 

the Requirement of a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of ammonium 

formate (CAS Reg. No. 540–69–2) when 

used as an inert ingredient (complexing 

or fixing agent with copper compounds) 

in pesticide formulations for certain preharvest uses. Phyton Corporation 

submitted a petition to EPA under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA), requesting establishment of an 

exemption from the requirement of a 

tolerance. This regulation eliminates the 

need to establish a maximum 

permissible level for residues of 

ammonium formate. 

DATES: This regulation is effective 

September 15, 2010. Objections and 

requests for hearings must be received 

on or before November 15, 2010, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2006–0121. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

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