[Federal Register Volume 74, Number 204 (Friday, October 23, 2009)]
[Rules and Regulations]
[Pages 54755-54757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25456]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-KY-0003; FRL-8972-2]


Approval and Promulgation of Implementation Plans; Kentucky: 
NO<INF>X</INF> SIP Call Phase II

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve the State Implementation 
Plan (SIP) revisions submitted by the Commonwealth of Kentucky on 
September 12, 2005, and March 24, 2006. The first revision provides 
Kentucky's response to EPA's regulations entitled, ``Finding of 
Significant Contribution and Rulemaking for Certain States in Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone,'' otherwise known as the ``Nitrogen Oxides 
(NO<INF>X</INF>) SIP Call Phase I.'' The second revision responds to 
EPA's regulations entitled, ``Interstate Ozone Transport: Response to 
Court Decisions on the NO<INF>X</INF> SIP Call, NO<INF>X</INF> SIP Call 
Technical Amendments, and Section 126 Rules,'' otherwise known as the 
``NO<INF>X</INF> SIP Call Phase II.'' EPA proposed to approve 
Kentucky's request to revise the SIP on May 29, 2009. This action is 
being taken pursuant to Section 110 of the Clean Air Act (CAA).

DATES: Effective Date: This rule will be effective November 23, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R04-OAR-2005-KY-0003. 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: Deanne Grant, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9291. Ms. Grant can also be reached via electronic mail at 
<a href="/cdn-cgi/l/email-protection#d6b1a4b7b8a2f8b2b3b7b8b8b396b3a6b7f8b1b9a0"><span class="__cf_email__" data-cfemail="f99e8b98978dd79d9c9897979cb99c8998d79e968f">[email protected]</span></a>. For information relating to the Kentucky SIP, 
please contact Mr. Zuri Farngalo at (404) 562-9152. Mr. Farngalo can 
also be reached via electronic mail at <a href="/cdn-cgi/l/email-protection#e28483908c85838e8dcc9897908ba2879283cc858d94"><span class="__cf_email__" data-cfemail="ed8b8c9f838a8c8182c397989f84ad889d8cc38a829b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. EPA's Action
II. Background
III. Final Action
IV. Statutory and Executive Order Reviews

I. EPA's Action

    EPA is taking final action to approve SIP revisions submitted by 
the Commonwealth of Kentucky on September 12, 2005, and March 24, 2006. 
The first revision provides Kentucky's response to EPA's regulations 
entitled, ``Finding of Significant Contribution and Rulemaking for 
Certain States in Ozone Transport Assessment Group Region for Purposes 
of Reducing Regional Transport of Ozone,'' otherwise known as the 
``Nitrogen Oxides (NO<INF>X</INF>) SIP Call Phase I.'' The second 
revision responds to EPA's regulations entitled, ``Interstate Ozone 
Transport: Response to Court Decisions on the NO<INF>X</INF> SIP Call, 
NO<INF>X</INF> SIP Call Technical Amendments, and Section 126 Rules,'' 
otherwise known as the ``NO<INF>X</INF> SIP Call Phase II.''
    The NO<INF>X</INF> SIP Call Phase II revision satisfies EPA's rule 
that requires Kentucky to submit Phase II revisions necessary to 
achieve applicable, incremental reductions of NO<INF>X</INF>. The 
intended effect of the Phase II SIP revision is to reduce emissions of 
NO<INF>X</INF> originating in the Commonwealth of Kentucky to help 
attain and maintain the national ambient air quality standard for 
ozone. The March 24, 2006, final submittal stopped the Federal 
implementation plan (FIP) clock that started on February 8, 2006, when 
EPA made a finding that Kentucky failed to submit the required SIP for 
Phase II of the NO<INF>X</INF> SIP Call by April 1, 2005.
    EPA proposed to approve Kentucky's request to amend the SIP on May 
29, 2009 (74 FR 25686). In that proposal, EPA also stated its intent to 
remove compliance requirements of the NO<INF>X</INF> SIP Call Phase I. 
The comment period closed on June 29, 2009. No comments were received 
in regard to this action. EPA is finalizing the approval as proposed 
based on the rationale stated in the proposal and in this final action.

II. Background

    On January 31, 2002, the Kentucky Environmental and Public 
Protection Cabinet (KEPPC) submitted final revisions to its SIP that 
complied with the requirements of Phase I of the NO<INF>X</INF> SIP 
Call. EPA approved the revisions on April 11, 2002 (67 FR 17624), which

[[Page 54756]]

became effective on June 10, 2002. On April 21, 2004, EPA published a 
final rule, addressing the remanded portion of the NO<INF>X</INF> SIP 
Call Rule. This rule is entitled, ``Interstate Ozone Transport: 
Response to Court Decisions on the NO<INF>X</INF> SIP Call, 
NO<INF>X</INF> SIP Call Technical Amendments, and Section 126 Rules,'' 
and is otherwise known as the ``NO<INF>X</INF> SIP Rule Phase II'' (69 
FR 21604). Phase II of the NO<INF>X</INF> SIP Call required Kentucky to 
reduce the Phase I NO<INF>X</INF> emissions originating in the 
Commonwealth from 165,075 tons (Phase I Budget) to 162,519 tons (Phase 
II Budget) of NO<INF>X</INF> emissions. (69 FR 21604, 21629, April 21, 
2004). However, EPA approved a revised Phase I Budget for Kentucky in a 
revision to the NO<INF>X</INF> SIP Call submitted on April 11, 2002 (67 
FR 17624). Therefore, the final Kentucky Phase II Budget in the April 
21, 2004, notice is inaccurate because it is based on the previous 
Phase I Budget. The current approved Kentucky Phase II Budget for 
NO<INF>X</INF> emissions is 162,863 tons.
    On January 23, 2004, EPA wrote a letter to KEPPC clarifying that 
based on current rules and regulations, including the NO<INF>X</INF> 
SIP Call Phase I rulemaking (63 FR 57356, 57416) and 40 CFR 96.2, EPA 
was allowing each State with one or more carbon monoxide (CO) boiler 
combusting CO from fluidized catalytic cracking units (FCCUs) to 
determine whether all of the Commonwealth's FCCU-CO boilers were 
covered by the NO<INF>X</INF> SIP Call trading program. There is 
currently only one facility in Kentucky with FCCU-CO boilers (the 
Ashland Oil facility, located in Ashland, Kentucky). Kentucky elected 
to exclude all FCCU-CO boilers in the Commonwealth from the 
NO<INF>X</INF> trading program. Today's action removes the requirement 
from the Kentucky SIP that such units comply with the NO<INF>X</INF> 
SIP Call Phase I by exempting them from the non-EGU portion of the 
Kentucky NO<INF>X</INF> budget. However, Kentucky is still able to meet 
the Phase II budgets through other reductions. For more information 
regarding the specifics of Phase I source categories and budgets, see 
67 FR 17624 (April 11, 2002).
    On September 12, 2005, the KEPPC provided a submittal for parallel 
processing of its SIP regulation revisions, intended to meet the 
requirements of the NO<INF>X</INF> SIP Call Phase II. A public hearing 
was conducted on October 21, 2005. On March 24, 2006, Kentucky 
submitted the final SIP revision for approval. The March 24, 2006, 
submittal stopped the FIP clock that started under the CAA following 
EPA's February 8, 2006, finding that Kentucky failed to submit the 
required SIP revisions for Phase II of the NO<INF>X</INF> SIP Call by 
April 1, 2005 (71 FR 6347, February 8, 2006).

III. Final Action

    EPA is taking final action to approve the aforementioned changes to 
the SIP, including Kentucky's NO<INF>X</INF> SIP Call Phase II budget. 
These revisions meet CAA requirements and are consistent with EPA 
policy and regulations.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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 December 22, 2009. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: October 9, 2009.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

[[Page 54757]]

Subpart S--Kentucky

0
2. In Sec.  52.920(c), Table 1 is amended:
0
a. Under Chapter 51, by adding an entry for ``401 KAR 51:150--
NO<INF>X</INF> requirements for stationary internal combustion 
engines''; and
0
b. Under Chapter 51, by revising the entry for ``401 KAR 51:160--
NO<INF>X</INF> requirements for large utility and industrial boilers'' 
to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                                   Table 1--EPA-Approved Kentucky Regulations
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                                                          State
         State citation              Title/subject      effective    EPA approval date         Explanation
                                                           date
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                                                  * * * * * * *
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              Chapter 51. Attainment and Maintenance of the National Ambient Air Quality Standards
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                                                  * * * * * * *
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401 KAR 51:150..................  NOX requirements          2/3/06  10/23/09 [Insert
                                   for stationary                    citation of
                                   internal                          publication]
                                   combustion engines.
 
                                                  * * * * * * *
401 KAR 51:160..................  NOX requirements          2/3/06  10/23/09 [Insert
                                   for large utility                 citation of
                                   and industrial                    publication]
                                   boilers.
 
                                                  * * * * * * *
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[FR Doc. E9-25456 Filed 10-22-09; 8:45 am]
BILLING CODE 6560-50-P


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