
[Federal Register Volume 81, Number 234 (Tuesday, December 6, 2016)]
[Rules and Regulations]
[Pages 87817-87819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29115]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0426; FRL-9955-96-Region 4]


Air Quality Plans; Kentucky; Infrastructure Requirements for the 
2010 Sulfur Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve portions of the State Implementation Plan (SIP) 
submission, submitted by the Commonwealth of Kentucky, Energy and 
Environment Cabinet, Department for Environmental Protection, through 
the Kentucky Division for Air Quality (KDAQ), on April 26, 2013, for 
inclusion into the Kentucky SIP. This final action pertains to the 
infrastructure requirements of the Clean Air Act (CAA or Act) for the 
2010 1-hour sulfur dioxide (SO2) national ambient air 
quality standard (NAAQS). 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 submission.'' KDAQ certified that the Kentucky SIP 
contains provisions that ensure the 2010 1-hour SO2 NAAQS is 
implemented, enforced, and maintained in Kentucky. EPA has determined 
that Kentucky's infrastructure SIP submission, provided to EPA on April 
26, 2013, satisfies certain required infrastructure elements for the 
2010 1-hour SO2 NAAQS.

DATES: This rule will be effective January 5, 2017.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2014-0426. 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 Air Regulatory Management Section, Air Planning and 
Implementation 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: Michele Notarianni, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Notarianni can be reached via electronic mail at 
notarianni.michele@epa.gov or via telephone at (404) 562-9031.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On June 2, 2010 (75 FR 35520, June 22, 2010), EPA revised the 
primary SO2 NAAQS to an hourly standard of 75 parts per 
billion (ppb) based on a 3-year average of the annual 99th percentile 
of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) 
of the CAA, states are required to submit SIPs meeting the applicable 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS or within such shorter period as EPA may 
prescribe. Section 110(a)(2) requires states to address basic SIP 
elements such as requirements for monitoring, basic program 
requirements and legal authority that are designed to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 
2013.
    EPA is acting upon the SIP submission from Kentucky that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 1-hour SO2 NAAQS. In a notice of proposed 
rulemaking (NPRM) published on April 4, 2016 (81 FR 19098), EPA 
proposed to approve Kentucky's 2010 1-hour SO2 NAAQS 
infrastructure SIP submission submitted on April 26, 2013, with the 
exception of the minor source program requirements of section 
110(a)(2)(C) and the interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance in other 
states and visibility protection requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4). The details of 
Kentucky's submission and the rationale for EPA's actions are explained 
in the proposed rulemaking. Comments on the NPRM were due on or before 
May 4, 2016. EPA received an adverse comment on the proposed action. 
Additionally, EPA

[[Page 87818]]

acknowledges an erroneous date cited in the Technical Support Document 
(TSD) to its April 4, 2016, proposal action. For the Kentucky entry in 
Table 1 of EPA's TSD, ``November 23, 2014 (79 FR 65143)'' is listed in 
two places. These two entries should read: ``November 3, 2014 (79 FR 
65143)''.

II. Response to Comments

    EPA received an adverse comment on the April 4, 2016, NPRM to 
approve Kentucky's 2010 1-hour SO2 NAAQS infrastructure SIP 
submission intended to meet the CAA requirements for the 2010 1-hour 
SO2 NAAQS. A summary of the comment and EPA's response is 
provided below. The comment is also available in the docket for this 
final rulemaking action.
    Comment: The Commenter stated, ``EPA cannot approve the PSD 
[Prevention of Significant Deterioration] related elements of this 
Infrastructure SIP until the Jefferson County local air authority has 
incorporated PM2.5 [fine particulate matter] increments into 
its PSD program.''
    Response: EPA does not agree with the Commenter's assertion that 
EPA cannot approve the PSD elements of Kentucky's submittal until the 
Jefferson County Air Pollution Control District incorporates 
PM2.5 increments into its PSD program. As discussed in the 
April 4, 2016, NPRM (see 81 FR 19104), Kentucky's SIP-approved PSD 
permitting program for major sources contains required structural PSD 
requirements, including PM2.5 increments. See 79 FR 65143, 
November 3, 2014. Kentucky's rule does not have any exclusion, 
exception or exemption for individual localities such as Jefferson 
County, Kentucky. Accordingly, the PSD permitting requirements, 
including the PM2.5 increments, apply in all areas of the 
Commonwealth, including Jefferson County.
    Kentucky has a statutory provision that addresses local air 
pollution control programs at KRS 224.20-130, Concurrent jurisdiction 
with local district--Effect. This section cross references local 
programs established under KRS chapter 77, which is the statutory 
authority for the Jefferson County program. KRS 224.20-130 requires the 
Energy and Environment Cabinet to approve local programs; provides that 
local programs cannot be less stringent; provides that, upon approval, 
there is concurrent jurisdiction; and provides that this (approval of a 
local program with concurrent jurisdiction) in no way diminishes the 
authority of the cabinet to administer and enforce chapter 224--which 
is the chapter that comprises and/or authorizes Kentucky's SIP 
regulations, including its PSD program. Also, subsection (2) of KRS 
224.20-130 allows the cabinet to suspend or revoke approval, or modify 
the authority granted to a local air pollution control program in 
Kentucky if the cabinet determines, after public hearing with notice, 
that a local air pollution control program is not being administered in 
accordance with the statutes and regulations of the cabinet or the 
district. Further, subsection (4) states that, ``The cabinet shall be 
empowered to enforce any and all regulations or standards in any 
district when concurrent jurisdiction is granted.''
    Therefore, Kentucky's PSD program applies to the entire 
Commonwealth, including Jefferson County, and any deficiencies in the 
PSD program for Jefferson County would not impact the sufficiency of 
Kentucky's SIP for the PSD infrastructure elements.

III. Final Action

    With the exception of the minor source program requirements of 
section 110(a)(2)(C) and the interstate transport provisions pertaining 
to the contribution to nonattainment or interference with maintenance 
in other states and visibility protection requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking final 
action to approve Kentucky's infrastructure submission submitted on 
April 26, 2013, for the 2010 1-hour SO2 NAAQS for the above 
described infrastructure SIP requirements. EPA is taking final action 
to approve Kentucky's infrastructure SIP submission for the 2010 1-hour 
SO2 NAAQS because the submission is consistent with section 
110 of the CAA.

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. See 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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).

[[Page 87819]]

    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 February 6, 2017. 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, Reporting and 
recordkeeping requirements and Sulfur oxides.

    Dated: November 21, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart S--Kentucky

0
2. Section 52.920(e) is amended by adding a new entry ``110(a)(1) and 
(2) Infrastructure Requirements for the 2010 1-hour SO2 
National Ambient Air Quality Standard'' at the end of the table to read 
as follows:


Sec.  52.920   Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-Regulatory Provisions
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                                                               State
   Name of non-regulatory SIP     Applicable  geographic     submittal     EPA approval
           provision              or  nonattainment area  date/effective       date            Explanations
                                                                date
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                                                  * * * * * * *
110(a)(1) and (2)                Kentucky...............      04/26/2013       12/6/2016  With the exception of
 Infrastructure Requirements                                                               the minor source
 for the 2010 1-hour SO2 NAAQS.                                                            program requirements
                                                                                           of section
                                                                                           110(a)(2)(C) and the
                                                                                           interstate transport
                                                                                           requirements of
                                                                                           section
                                                                                           110(a)(2)(D)(i)(I)
                                                                                           and (II) (prongs 1,
                                                                                           2, and 4).
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[FR Doc. 2016-29115 Filed 12-5-16; 8:45 am]
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