
[Federal Register Volume 80, Number 146 (Thursday, July 30, 2015)]
[Proposed Rules]
[Pages 45469-45477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18613]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0443; FRL-9931-34-Region 4]


Approval and Promulgation of Implementation Plans; Kentucky 
Infrastructure Requirements for the 2008 Lead National Ambient Air 
Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the July 17, 2012, 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 (KY DAQ) for inclusion into the Kentucky SIP. 
This proposal pertains to the Clean Air Act (CAA or the Act) 
infrastructure requirements for the 2008 Lead national ambient air 
quality standards (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.'' KY DAQ certified that the Kentucky 
SIP contains provisions that ensure the 2008 Lead NAAQS is implemented, 
enforced, and maintained in Kentucky. With the exception of provisions 
pertaining to prevention of significant deterioration (PSD) permitting, 
EPA is proposing to determine that Kentucky's infrastructure SIP 
submission, provided to EPA on July 17, 2012, satisfies the required 
infrastructure elements for the 2008 Lead NAAQS.

DATES: Written comments must be received on or before August 31, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0443, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-ARMS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2014-0443,'' Air Regulatory Management 
Section (formerly the Regulatory Development Section), Air Planning and 
Implementation Branch (formerly the Air Planning Branch) Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2014-0443. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in 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: Zuri Farngalo, 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. The telephone number is (404) 562-9152. Mr. Farngalo can be 
reached via electronic mail at farngalo.zuri@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how Kentucky addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On October 5, 1978, EPA promulgated primary and secondary NAAQS for 
lead under section 109 of the Act. See 43 FR

[[Page 45470]]

46246. Both primary and secondary standards were set at a level of 1.5 
micrograms per cubic meter ([mu]g/m\3\), measured as lead in total 
suspended particulate matter (Pb-TSP), not to be exceeded by the 
maximum arithmetic mean concentration averaged over a calendar quarter. 
This standard was based on the August 7, 1977 Air Quality Criteria for 
Lead. On November 12, 2008 (75 FR 81126), EPA issued a final rule to 
revise the primary and secondary Lead NAAQS. The primary and secondary 
Lead NAAQS were revised to 0.15 [mu]g/m\3\. By statute, SIPs meeting 
the requirements of sections 110(a)(1) and (2) are to be submitted by 
states within three years after promulgation of a new or revised NAAQS. 
Sections 110(a)(1) and (2) require states to address basic SIP 
requirements, including emissions inventories, monitoring, and modeling 
to assure attainment and maintenance of the NAAQS. States were required 
to submit such SIPs to EPA no later than October 15, 2011, for the 2008 
Lead NAAQS.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a) (1) and (2). Unless otherwise indicated, the Title 15A 
regulations of the Kentucky Administrative Regulation (``KAR'') 
cited throughout this rulemaking have been approved into Kentucky's 
federally-approved SIP. The Kentucky Revised Statutes (``KRS'') 
cited throughout this rulemaking, however, are not approved into the 
Kentucky SIP unless otherwise indicated.
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    This action is proposing to approve Kentucky's infrastructure SIP 
submission for the applicable requirements of the 2008 Lead NAAQS, with 
the exception of preconstruction PSD permitting requirements for major 
sources contained in sections 110(a)(2)(C), prong 3 of D(i), and (J). 
On March 18, 2015, EPA approved Kentucky's July 17, 2012, 
infrastructure SIP submission regarding the PSD permitting requirements 
for major sources of sections 110(a)(2)(C), prong 3 of D(i) and (J) for 
the 2008 Lead NAAQS. See 80 FR 14019. Therefore, EPA is not proposing 
any action today pertaining to the PSD permitting requirements for 
major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for 
the 2008 Lead NAAQS. For the aspects of Kentucky's submittal proposed 
for approval today, EPA notes that the Agency is not approving any 
specific rule, but rather proposing that Kentucky's already approved 
SIP meets certain CAA requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2008 Lead NAAQS, states typically have met 
the basic program elements required in section 110(a)(2) through 
earlier SIP submissions in connection with the 1978 Lead NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below \2\ and in EPA's 
October 14, 2011, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements Required Under Sections 
110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air 
Quality Standards (NAAQS)'' (2011 Lead Infrastructure SIP Guidance).
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement, prevention of 
significant deterioration (PSD), and new source review (NSR).\3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D)(i): Interstate transport provisions.
     110(a)(2)(D)(ii): Interstate and International Transport.
     110(a)(2)(E): Adequate personnel, funding, and authority.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency episodes.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Nonattainment area plan or plan revision 
under Part D.\4\
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    \4\ As mentioned above, this element is not relevant to this 
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials, 
public notification, PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    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 2008 Lead NAAQS. Pursuant to section 110(a)(1), states must 
make SIP submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``each such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from

[[Page 45471]]

submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' 
submissions to address the nonattainment planning requirements of part 
D of title I of the CAA, ``regional haze SIP'' submissions required by 
EPA rule to address the visibility protection requirements of CAA 
section 169A, and nonattainment new source review permit program 
submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements.

[[Page 45472]]

As this example illustrates, each type of SIP submission may implicate 
some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
issued the Lead Infrastructure SIP Guidance on October 14, 2011.\12\ 
EPA developed this document to provide states with up-to-date guidance 
for the 2008 Lead infrastructure SIPs. Within this guidance, EPA 
describes the duty of states to make infrastructure SIP submissions to 
meet basic structural SIP requirements within three years of 
promulgation of a new or revised NAAQS. EPA also made recommendations 
about many specific subsections of section 110(a)(2) that are relevant 
in the context of infrastructure SIP submissions. The guidance also 
discusses the substantively important issues that are germane to 
certain subsections of section 110(a)(2). Significantly, EPA interprets 
sections 110(a)(1) and 110(a)(2) such that infrastructure SIP 
submissions need to address certain issues and need not address others. 
Accordingly, EPA reviews each infrastructure SIP submission for 
compliance with the applicable statutory provisions of section 
110(a)(2), as appropriate.\13\
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements Required under Clean Air Act Sections 110(a)(1) and 
110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS),'' Memorandum from Stephen D. Page, October 14, 
2001.
    \13\ Although not intended to provide guidance for purposes of 
infrastructure SIP submissions for the 2008 Lead NAAQS, EPA notes 
that, following the 2011 Lead Infrastructure SIP Guidance, EPA 
issued the ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2).'' Memorandum from Stephen D. Page, September 13, 2013. 
This 2013 guidance provides recommendations for air agencies' 
development and the EPA's review of infrastructure SIPs for the 2008 
ozone primary and secondary NAAQS, the 2010 primary nitrogen dioxide 
(NO2) NAAQS, the 2010 primary sulfur dioxide 
(SO2) NAAQS, and the 2012 primary fine particulate matter 
(PM2.5) NAAQS, as well as infrastructure SIPs for new or 
revised NAAQS promulgated in the future.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\14\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\15\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\16\
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    \14\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \15\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \16\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Kentucky addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    The Kentucky infrastructure submission addresses the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A) Emission limits and other control measures: There 
are several provisions within Kentucky's regulations that provide KY 
DAQ with the necessary authority to adopt and

[[Page 45473]]

enforce air quality controls, which include enforceable emission 
limitations and other control measures. Some sections but not all of 
the following chapters,\17\ provide the state the necessary authority; 
401 KAR Chapter 50 General Administrative Procedures 401 KAR 51 
Attainment and Maintenance of the National Ambient Air Quality 
Standards, 401 KAR 52 Permits, Registrations, and Prohibitory Rules, 
and 401 KAR 53 Ambient Air Quality. EPA has made the preliminary 
determination that these provisions and Kentucky's practices are 
adequate to protect the 2008 Lead NAAQS in the Commonwealth.
---------------------------------------------------------------------------

    \17\ There are various chapters from the Kentucky submittal 
cited to throughout this document as showing that Kentucky meets the 
infrastructure requirements. To see exactly what sections Kentucky 
cited in each chapter, refer to the submittal which can be accessed 
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0443.
---------------------------------------------------------------------------

    In this action, EPA is not proposing to approve or disapprove any 
existing Kentucky provisions with regard to excess emissions during 
startup, shutdown and malfunction (SSM) of operations at a facility. 
EPA believes that a number of states have SSM provisions which are 
contrary to the CAA and existing EPA guidance, ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown'' (September 20, 1999), and the Agency is addressing such 
state regulations in a separate action.\18\ In the meantime, EPA 
encourages any state having a deficient SSM provision to take steps to 
correct it as soon as possible.
---------------------------------------------------------------------------

    \18\ On May 22, 2015, the EPA Administrator signed a final 
action entitled, ``State Implementation Plans: Response to Petition 
for Rulemaking; Restatement and Update of EPA's SSM Policy 
Applicable to SIPs; Findings of Substantial Inadequacy; and SIP 
Calls to Amend Provisions Applying to Excess Emissions During 
Periods of Startup, Shutdown, and Malfunction.'' The prepublication 
version of this rule is available at http://www.epa.gov/airquality/urbanair/sipstatus/emissions.html.
---------------------------------------------------------------------------

    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. In the meantime, EPA encourages any 
state having a director's discretion or variance provision which is 
contrary to the CAA and EPA guidance to take steps to correct the 
deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: SIPs 
are required to provide for the establishment and operation of ambient 
air quality monitors; the compilation and analysis of ambient air 
quality data; and the submission of these data to EPA upon request. 401 
KAR 50:050 Monitoring and KRS 224.10-100(22) along with the Kentucky 
Annual Monitoring Network Plan, provide for an ambient air quality 
monitoring system in the State, which includes the monitoring of lead 
at appropriate locations throughout the state using the EPA approved 
Federal Reference Method or equivalent monitors. 401 KAR Chapter 50 
General Administrative Procedures also provides Kentucky with the 
statutory authority to ``determine by means of field sampling and other 
studies, including the examination of available data collected by any 
local, State or federal agency or any person, the degree of air 
contamination and air pollution in the State and the several areas of 
the State.'' The monitors are all part of the Air Quality Systems (AQS) 
and identification numbers. Annually, States develop and submit to EPA 
for approval statewide ambient monitoring network plans consistent with 
the requirements of 40 CFR parts 50, 53, and 58. The annual network 
plan involves an evaluation of any proposed changes to the monitoring 
network, includes the annual ambient monitoring network design plan and 
a certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\19\ The latest monitoring network plan for Kentucky 
was submitted to EPA on June 30, 2014, and on October 30, 2014, EPA 
approved this plan. Kentucky's approved monitoring network plan can be 
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-
0443. EPA has made the preliminary determination that Kentucky's SIP 
and practices are adequate for the ambient air quality monitoring and 
data system related to the 2008 Lead NAAQS.
---------------------------------------------------------------------------

    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Program for enforcement, PSD, and NSR: This element 
consists of three sub-elements; enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources; and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). To meet these obligations, Kentucky cited regulations 401 
KAR 50:060. The enforcement aspect of 110(a)(2)(C) provides for 
enforcement of the terms and conditions of permits and compliance 
schedules, and 401 KAR 52 Permits, Registrations, and Prohibitory 
Rules, which pertain to the construction of new stationary sources or 
any project at an existing stationary source. In this action, EPA is 
only proposing to approve the enforcement and the regulation of minor 
sources and minor modifications aspects of Kentucky's section 
110(a)(2)(C) infrastructure SIP submission.
    Enforcement: KY DAQ's above-described, SIP-approved regulations 
provide for enforcement of lead emission limits and control measures 
and construction permitting for new or modified stationary sources.
    Preconstruction PSD Permitting for Major Sources: With respect to 
Kentucky's July 17, 2012, infrastructure SIP submission related to the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA took final action to approve these provisions 
for the 2008 Lead NAAQS on March 18, 2015. See 80 FR 14019.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source pre-construction program that regulates emissions of the 2008 
Lead NAAQS. Regulation 401 KAR 52:030 governs the preconstruction 
permitting of modifications and construction of minor stationary 
sources.
    EPA has made the preliminary determination that Kentucky's SIP and 
practices are adequate for enforcement of control measures and 
regulation of minor sources and modifications related to the 2008 Lead 
NAAQS.
    4. 110(a)(2)(D)(i) and (ii) Interstate and International transport 
provisions: Section 110(a)(2)(D)(i) has two components; 
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components 
have two subparts resulting in four distinct components, commonly 
referred to as ``prongs,'' that must be addressed in infrastructure SIP 
submissions. The first two prongs, which are codified in section 
110(a)(2)(D)(i)(I), are provisions that prohibit any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment of the NAAQS in another state (``prong 1''), and 
interfering with maintenance of the NAAQS in another state (``prong 
2''). The third and fourth prongs, which are codified in section 
110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in 
one state interfering with measures required to prevent significant 
deterioration of air quality in another state (``prong 3''), or to 
protect visibility in another state (``prong 4''). Section 
110(a)(2)(D)(ii)

[[Page 45474]]

requires SIPs to include provisions insuring compliance with sections 
115 and 126 of the Act, relating to interstate and international 
pollution abatement.
    110(a)(2)(D)(i)(I) prongs 1 and 2: Section 110(a)(2)(D)(i) requires 
infrastructure SIP submissions to include provisions prohibiting any 
source or other type of emissions activity in one state from 
contributing significantly to nonattainment in, or interfering with 
maintenance of the NAAQS in another state. The physical properties of 
lead prevent lead emissions from experiencing that same travel or 
formation phenomena as PM2.5 and ozone for interstate 
transport as outlined in prongs 1 and 2. More specifically, there is a 
sharp decrease in the lead concentrations, at least in the coarse 
fraction, as the distance from a lead source increases. EPA believes 
that the requirements of prongs 1 and 2 can be satisfied through a 
state's assessment as to whether a lead source located within its State 
in close proximity to a state border has emissions that contribute 
significantly to the nonattainment or interfere with maintenance of the 
NAAQS in the neighboring state. For example, EPA's experience suggests 
that sources located more than two miles from the state border or that 
sources that emit less than 0.5 tons per year (tpy) generally appear 
unlikely to contribute significantly to the nonattainment in another 
state. Kentucky has one lead source that has emissions which exceed 0.5 
tpy, however, the source is located about 50 miles from the border.\20\ 
As a result of its distance to the border, EPA believes it is unlikely 
to contribute significantly to the nonattainment or interfere with 
maintenance of the NAAQS in another state. Therefore, EPA has made the 
preliminary determination that Kentucky's SIP meets the requirements of 
section 110(a)(2)(D)(i)(I).
---------------------------------------------------------------------------

    \20\ The one facility in Kentucky that has lead emissions 
greater than 0.5 tpy is the EnerSys facility located at 761 Eastern 
Bypass Richmond, KY 40475. The lead emissions from this facility are 
0.55 tpy.
---------------------------------------------------------------------------

    110(a)(2)(D)(i)(II) Prong 3: With respect to Kentucky's July 17, 
2012 infrastructure SIP submission related to the interstate transport 
requirements for PSD of prong 3 of section 110(a)(2)(D)(i), EPA took 
final action to approve this portion of Kentucky's submission for the 
2008 Lead NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II) prong 4: With regard to section 
110(a)(2)(D)(i)(II), the visibility sub-element, referred to as prong 
4, significant visibility impacts from stationary source lead emissions 
are expected to be limited to short distances from the source. The 2011 
Lead Infrastructure SIP Guidance notes that the lead constituent of PM 
would likely not travel far enough to affect Class 1 areas and that the 
visibility provisions of the CAA do not directly regulate lead. Lead 
stationary sources in Kentucky are located distances from Class I areas 
such that visibility impacts are negligible. Accordingly, EPA has 
preliminarily determined that the Kentucky SIP meets the relevant 
visibility requirements of prong 4 of section 110(a)(2)(D)(i).
    110(a)(2)(D)(ii) Interstate and International transport provisions: 
With regard to section 110(a)(2)(D)(ii), section 6 of KAR Chapter 
52:100, Public, Affected State, and US EPA Review, outlines how 
Kentucky will notify neighboring states of potential impacts from new 
or modified sources. Further, EPA is unaware of any pending obligations 
for the Commonwealth pursuant to sections 115 or 126 of the CAA. EPA 
has made the preliminary determination that Kentucky DAQ's SIP and 
practices are adequate for insuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 2008 Lead NAAQS. Accordingly, EPA is proposing to 
approve Kentucky's infrastructure SIP submission with respect to 
section 110(a)(2)(D)(ii).
    5. 110(a)(2)(E) Adequate personnel, funding, and authority: Section 
110(a)(2)(E) requires that each implementation plan provide (i) 
necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the State has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
Kentucky's SIP as meeting the requirements of sub-elements 
110(a)(2)(E)(i), (ii) and (iii). EPA's rationale for this proposal 
respecting sub-element (i), (ii),and(iii) is described in turn below.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), 
Kentucky's infrastructure SIP submission cites regulation 401 KAR 
50:038 Air Emissions Fee, which provides the assessment fees necessary 
to fund the state Title V permit program. EPA submitted a letter to 
Kentucky on February 27, 2014, outlining 105 grant commitments and the 
current status of these commitments for fiscal year 2013. The letter 
EPA submitted to Kentucky can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2014-0443. Annually, states update these 
grant commitments based on current SIP requirements, air quality 
planning, and applicable requirements related to the NAAQS. Kentucky 
satisfactorily met all commitments agreed to in the Air Planning 
Agreement for fiscal year 2013, therefore Kentucky's grants were 
finalized and closed out.
    Section 110(a)(2)(E)(ii) requires that Kentucky comply with section 
128 of the CAA. Section 128 requires that: (1) The majority of members 
of the state board or body which approves permits or enforcement orders 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permitting or enforcement 
orders under the CAA; and (2) any potential conflicts of interest by 
such board or body, or the head of an executive agency with similar, 
powers be adequately disclosed.
    KY DAQ's infrastructure SIP submission adequately demonstrated that 
Kentucky's SIP meets the applicable section 128 requirements pursuant 
to section 110(a)(2)(E)(ii).
    For purposes of section 128(a)(1), Kentucky has no boards or bodies 
with authority over air pollution permits or enforcement actions. Such 
matters are instead handled by the Director of the KY DAQ. As such, a 
``board or body'' is not responsible for approving permits or 
enforcement orders in Kentucky, and the requirements of section 
128(a)(1) are not applicable. For purposes of section 128(a)(2), 
Kentucky's SIP has been updated. On October 3, 2012, EPA finalized 
approval of KY DAQ's July 17, 2012, SIP revision requesting 
incorporation of KRS Chapters 11A.020, 11A.030, 11A.040 and Chapters 
224.10-020 and 224.10-100 into the SIP to address sub-element 
110(a)(2)(E)(ii). See 77 FR 60307. With the incorporation of these 
regulations into the Kentucky SIP, EPA has made the preliminary 
determination that the Commonwealth has adequately addressed the 
requirements of section 128(a)(2), and accordingly has met the 
infrastructure SIP requirements of section 110(a)(2)(E)(ii). Therefore, 
EPA is proposing to approve KY DAQ's SIP as meeting the requirements of 
sub-elements 110(a)(2)(E)(i), (ii) and (iii).
    6. 110(a)(2)(F) Stationary source monitoring system: KY DAQ's 
infrastructure SIP submission describes how the State establishes 
requirements for emissions compliance testing and

[[Page 45475]]

utilizes emissions sampling and analysis. It further describes how the 
State ensures the quality of its data through observing emissions and 
monitoring operations. KY DAQ uses these data to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with emission regulations and additional EPA requirements. KY DAQ meets 
these requirements through KY DAQ 401 KAR 50:050 Monitoring. These 
requirements are incorporated into the SIP at Chapter 50 General 
Administrative Procedures allows for the use of credible evidence in 
the event that the KY DAQ Director has evidence that a source is 
violating an emission standard or permit condition, the Director may 
require that the owner or operator of any source submit to the Director 
any information necessary to determine the compliance status of the 
source. In addition, EPA is unaware of any provision preventing the use 
of credible evidence in the Kentucky SIP.
    In addition, Kentucky is required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data. See 73 FR 
76539. The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--NOX, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Kentucky made its latest update to the 2013 
NEI on November 11, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. 
EPA has made the preliminary determination that Kentucky's SIP and 
practices are adequate for the stationary source monitoring systems 
obligations for the 2008 Lead NAAQS.
    7. 110(a)(2)(G) Emergency episodes: This section requires that 
states demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. Kentucky's 
infrastructure SIP submission cites 401 KAR Chapter 55 Emergency 
Episodes as identifying air pollution emergency episodes and preplanned 
abatement strategies, and providing the means to implement emergency 
air pollution episode measures. Conditions justifying the proclamation 
of an air pollution alert, air pollution warning, or air pollution 
emergency shall be deemed to exist whenever the cabinet determines that 
the accumulation of air contaminants in any place is attaining or has 
attained levels which could, if such levels are sustained or exceeded, 
present a threat to the health of the public. The intent of this 
administrative regulation is to provide for the curtailment or 
reduction of processes or operations which emit an air contaminant or 
an air contaminant precursor whose criteria has been reached and are 
located in the affected area for which an episode level has been 
declared. This rule defines what an episodic criteria is and the 
procedure for an episode declaration. In addition, KRS 224.10-410 
provides: ``Notwithstanding any inconsistent provisions of law, 
whenever the Secretary of the Energy and Environment Cabinet finds, 
after investigation, that any person or combination of persons is 
causing, engaging in or maintaining a condition or activity which, in 
his judgment, presents a danger to the health or welfare of the people 
of the state or results in or is likely to result in damage to natural 
resources, and relates to the prevention and abatement powers of the 
secretary and it therefore appears to be prejudicial to the interests 
of the people of the state to delay action until an opportunity for a 
hearing can be provided, the secretary may, without prior hearing, 
order such person or combination of persons by notice, in writing 
wherever practicable or in such other form as in the secretary's 
judgment will reasonably notify such person or combination of persons 
whose practices are intended to be proscribed, to discontinue, abate or 
alleviate such condition or activity, and thereupon such person or 
combination of persons shall immediately discontinue, abate or 
alleviate such condition or activity. As soon as possible thereafter, 
not to exceed ten (10) days, the secretary shall provide the person or 
combination of persons an opportunity to be heard and to present proof 
that such condition or activity does not violate the provisions of this 
section. The secretary shall adopt any other appropriate rules and 
regulations prescribing the procedure to be followed in the issuance of 
such orders. The secretary shall immediately notify the Governor of any 
order issued pursuant to this section.'' EPA has made the preliminary 
determination that Kentucky's SIP and practices are adequate to satisfy 
the emergency powers obligations of the 2008 Lead NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: KY DAQ is responsible for 
adopting air quality rules and revising SIPs as needed to attain or 
maintain the NAAQS in Kentucky. 401 KAR Chapter 53 Ambient Air Quality 
and Chapter 51 Attainment and Maintenance of the National Ambient Air 
Quality Standards grant KY DAQ the broad authority to implement the 
CAA, and as such, provides KY DAQ the authority to prepare and develop, 
after proper study, a comprehensive plan for the prevention of air 
pollution. These statutes also provide KY DAQ the ability and authority 
to respond to calls for SIP revisions, and has provided a number of SIP 
revisions over the years for implementation of the NAAQS. Accordingly, 
EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate a commitment to provide future SIP 
revisions related to the 2008 Lead NAAQS, when necessary.
    9. 110(a)(2)(J): EPA is proposing to approve Kentucky's 
infrastructure SIP for the 2008 Lead NAAQS with respect to the general 
requirement in section 110(a)(2)(J) to include a program in the SIP 
that provides for meeting the applicable consultation requirements of 
section 121, the public notification requirements of section 127, and 
visibility protection. With respect to Kentucky's infrastructure SIP 
submission related to the preconstruction PSD permitting requirements 
of section 110(a)(2)(J), EPA took final action to approve Kentucky's 
July 17, 2012, 2008 Lead infrastructure SIP for these requirements on 
March 18, 2015. See 80 FR 14019. EPA's rationale for applicable 
consultation requirements of section 121, the public notification 
requirements of section 127, and visibility is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. 401 KAR 
52 Permits, Registrations, and Prohibitory Rules along with the 
Regional Haze SIP Plan (which allows

[[Page 45476]]

for consultation between appropriate state, local, and tribal air 
pollution control agencies as well as the corresponding FLMs), provide 
for consultation with government officials whose jurisdictions might be 
affected by SIP development activities. Implementation of 
transportation conformity as outlined in the consultation procedures 
requires KY DAQ to consult with federal, state and local transportation 
and air quality agency officials on the development of motor vehicle 
emissions budgets. EPA has made the preliminary determination that 
Kentucky's SIP and practices adequately demonstrate that the State 
meets applicable requirements related to consultation with government 
officials for the 2008 Lead NAAQS when necessary.
    Public notification (127 public notification): To meet the public 
notification requirements of section 110(a)(2)(J), statutes 401 KAR 51 
Attainment and Maintenance of the National Ambient Air Quality 
Standards and 401 KAR 52 Permits, Registrations provides Kentucky with 
the authority to declare an emergency and notify the public accordingly 
when it finds t a generalized condition of water or air pollution which 
is causing imminent danger to the health or safety of the public. For 
example, 401 KAR 52:100. Public, Affected State, and U.S. EPA Review of 
the Kentucky SIP process affords the public an opportunity to 
participate in regulatory and other efforts to improve air quality by 
holding public hearings for interested persons to appear and submit 
written or oral comments. EPA also notes that KY DAQ maintains a Web 
site that provides the public with notice of the health hazards 
associated with Lead NAAQS exceedances, measures the public can take to 
help prevent such exceedances, and the ways in which the public can 
participate in the regulatory process. See http://air.ky.gov/Pages/default.aspx.
    EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate the State's ability to provide public 
notification related to the 2008 Lead NAAQS when necessary.
    Visibility Protection: The 2011 Lead Infrastructure SIP Guidance 
notes that EPA does not generally treat the visibility protection 
aspects of section 110(a)(2)(J) as applicable for purposes of the 
infrastructure SIP approval process. EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under Part C of the Act (which includes sections 169A and 169B). 
However, in the event of the establishment of a new primary NAAQS, the 
visibility protection and regional haze program requirements under part 
C do not change. EPA thus does not expect states to address visibility 
in lead infrastructure submittals. Thus, EPA concludes there are no new 
applicable visibility protection obligations under section 110(a)(2)(J) 
as a result of the 2008 Lead NAAQS. Accordingly, EPA is proposing to 
approve section 110(a)(2)(J) of KY DAQ's infrastructure SIP submission 
with respect to visibility.
    EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate the State's ability to meet the 
requirements of section 110(a)(2)(J) to include a program in the SIP 
that provides for meeting the applicable requirements of section 121 
(consultation), section 127 public notification, and visibility 
protection.
    10. 110(a)(2)(K) Air quality modeling/data: Section 110(a)(2)(K) of 
the CAA requires that SIPs provide for performing air quality modeling 
so that effects on air quality of emissions from NAAQS pollutants can 
be predicted and submission of such data to the USEPA can be made. 401 
KAR Chapter 50 General Administrative Procedures require that air 
modeling be conducted in accordance with 40 CFR part 51, appendix W 
``Guideline on Air Quality Models.'' These regulations demonstrate that 
Kentucky has the authority to perform air quality modeling and to 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 2008 Lead NAAQS. Additionally, Kentucky 
supports a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for several NAAQS, including 
the 2008 Lead NAAQS, for the Southeastern states. Taken as a whole, 
Kentucky's air quality regulations demonstrate that KY DAQ has the 
authority to provide relevant data for the purpose of predicting the 
effect on ambient air quality of the 2008 Lead NAAQS. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
demonstrate the State's ability to provide for air quality and 
modeling, along with analysis of the associated data, related to the 
2008 Lead NAAQS when necessary.
    11. 110(a)(2)(L) Permitting fees: This element necessitates that 
the SIP require the owner or operator of each major stationary source 
to pay to the permitting authority, as a condition of any permit 
required under the CAA, a fee sufficient to cover (i) the reasonable 
costs of reviewing and acting upon any application for such a permit, 
and (ii) if the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under title V.
    To satisfy these requirements, Kentucky Regulation 401 KAR 50:038 
Air Emissions Fee, and the Title V Operating Permit Program 
Implementation Protocol dated August 13, 1999, is how KY DAQ collects 
adequate emission fees related to the cost of administering the air 
quality program mandated under Title V of the CAA Amendments of 1990 
(Public Law 101-549, as amended). Funds collected in support of the 
program are used in support of review, implementation, and enforcement 
of PSD/NNSR permits. The Title V program takes over for the PSD/NNSR 
permit once the source begin operating. EPA has made the preliminary 
determination that Kentucky's practices adequately provide for 
permitting fees related to the 2008 Lead NAAQS, when necessary.
    12. 110(a)(2)(M) Consultation/participation by affected local 
entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. 401 KAR 52 Permits, Registrations authorize and 
require KY DAQ to advise, consult, cooperate and enter into agreements 
with other agencies of the state, the Federal Government, other states, 
interstate agencies, groups, political subdivisions, and industries 
affected by the provisions of this act, rules, or policies of the 
department. EPA has made the preliminary determination that Kentucky's 
SIP and practices adequately demonstrate consultation with affected 
local entities related to the 2008 Lead NAAQS, when necessary.

V. Proposed Action

    With the exception of the PSD permitting requirements for major 
sources contained in sections 110(a)(2)(C), prong 3 of (D)(i), and (J), 
EPA is proposing to approve that KY DAQ's infrastructure SIP 
submission, submitted July 17, 2012, for the 2008 Lead NAAQS meets the 
above described infrastructure SIP requirements. EPA is proposing to 
approve these portions of Kentucky's infrastructure SIP submission for 
the 2008 Lead NAAQS because these aspects of the submission are 
consistent with section 110 of the CAA.

[[Page 45477]]

VI. 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 
proposed 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 proposed 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 Clean Air Act; 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, the Kentucky 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Reporting and 
recordkeeping requirements.

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

    Dated: July 14, 2015.
 Heather Mc Teer Toney,
 Regional Administrator, Region 4.
[FR Doc. 2015-18613 Filed 7-29-15; 8:45 am]
 BILLING CODE 6560-50-P


