
[Federal Register: October 23, 2009 (Volume 74, Number 204)]
[
Rules and Regulations]               
[Page 54755-54757]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc09-6]                         

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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: 

NOX 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 

(NOX) SIP Call Phase I.'' The second revision responds to 

EPA's regulations entitled, ``Interstate Ozone Transport: Response to 

Court Decisions on the NOX SIP Call, NOX SIP Call 

Technical Amendments, and Section 126 Rules,'' otherwise known as the 

``NOX 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 

grant.deanne@epa.gov. 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 farngalo.zuri@epa.gov.



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 (NOX) SIP Call Phase I.'' The second 

revision responds to EPA's regulations entitled, ``Interstate Ozone 

Transport: Response to Court Decisions on the NOX SIP Call, 

NOX SIP Call Technical Amendments, and Section 126 Rules,'' 

otherwise known as the ``NOX SIP Call Phase II.''

    The NOX SIP Call Phase II revision satisfies EPA's rule 

that requires Kentucky to submit Phase II revisions necessary to 

achieve applicable, incremental reductions of NOX. The 

intended effect of the Phase II SIP revision is to reduce emissions of 

NOX 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 NOX 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 NOX 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 NOX 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 NOX SIP 

Call Rule. This rule is entitled, ``Interstate Ozone Transport: 

Response to Court Decisions on the NOX SIP Call, 

NOX SIP Call Technical Amendments, and Section 126 Rules,'' 

and is otherwise known as the ``NOX SIP Rule Phase II'' (69 

FR 21604). Phase II of the NOX SIP Call required Kentucky to 

reduce the Phase I NOX emissions originating in the 

Commonwealth from 165,075 tons (Phase I Budget) to 162,519 tons (Phase 

II Budget) of NOX emissions. (69 FR 21604, 21629, April 21, 

2004). However, EPA approved a revised Phase I Budget for Kentucky in a 

revision to the NOX 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 

NOX 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 NOX 

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 NOX 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 

NOX trading program. Today's action removes the requirement 

from the Kentucky SIP that such units comply with the NOX 

SIP Call Phase I by exempting them from the non-EGU portion of the 

Kentucky NOX 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 NOX 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 NOX 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 NOX 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:

     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 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--

NOX requirements for stationary internal combustion 

engines''; and

0

b. Under Chapter 51, by revising the entry for ``401 KAR 51:160--

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

----------------------------------------------------------------------------------------------------------------

 

                                                  * * * * * * *

----------------------------------------------------------------------------------------------------------------

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
