
[Federal Register Volume 81, Number 123 (Monday, June 27, 2016)]
[Proposed Rules]
[Pages 41488-41497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15138]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0767; FRL-9948-42-Region 4]


Air Plan Approval; KY Infrastructure Requirements for the 2010 
Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 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, to demonstrate that 
the Commonwealth meets the infrastructure requirements of the Clean Air 
Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) 
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. KDAQ certified that the 
Kentucky SIP contains provisions that ensure the 2010 1-hour 
NO2 NAAQS is implemented, enforced, and maintained in 
Kentucky. EPA is proposing to determine that Kentucky's infrastructure 
submission, submitted on April 26, 2013, addresses certain 
infrastructure elements for the 2010 1-hour NO2 NAAQS.

DATES: Written comments must be received on or before July 27, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0767 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary

[[Page 41489]]

submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, 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) 562-8726. Mr. Wong can be 
reached via electronic mail at wong.richard@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS. Section 110(a)(2) requires 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 for the 2010 1-hour NO2 
NAAQS to EPA no later than January 22, 2013.\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). Throughout this rulemaking, unless otherwise 
indicated, the term ``Kentucky Administrative Regulation'', ``KAR'', 
or ``Regulation'' indicates that the cited regulation has been 
approved into Kentucky's federally-approved SIP. The term ``Kentucky 
Revised statute'' or ``KRS'' indicates cited Kentucky state 
statutes, which are not a part of the SIP unless otherwise 
indicated.
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    Today's action is proposing to approve Kentucky's infrastructure 
SIP submission for the applicable requirements of the 2010 1-hour 
NO2 NAAQS, with the exception of the PSD permitting 
requirements for major sources of sections 110(a)(2)(C), prong 3 of 
D(i), and (J), the interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance in other 
states and visibility of prongs 1, 2 and 4 of section 110(a)(2)(D)(i) 
and the regulation of minor sources and minor modifications under 
section 110(a)(2)(C). On March 18, 2015, EPA approved Kentucky's April 
26, 2013, 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 2010 1-hour NO2 NAAQS. See 80 FR 
14019. Therefore, EPA is not proposing any action pertaining to these 
requirements. With respect to Kentucky's infrastructure SIP submission 
related to the interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance in other 
states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i) 
and the regulation of minor sources and minor modifications under 
section 110(a)(2)(C), EPA is not proposing any action today. EPA will 
act on these provisions in a separate action. 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 2010 1-hour NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
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 basic SIP 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 and in EPA's September 13, 2013, 
memorandum entitled ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2).'' 
\2\
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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. Today's 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): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \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)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and 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

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addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA section 
110(a)(1). 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 ``[e]ach 
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 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

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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. 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 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. 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.\13\ 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.
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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 under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
greenhouse gases. By contrast, structural PSD program requirements do 
not include provisions that are not required under EPA's regulations at 
40 CFR 51.166 but are merely available as an option for the state, such 
as the option to provide grandfathering of complete permit applications 
with respect to the 2012 PM2.5 NAAQS. Accordingly, the 
latter optional provisions are types of provisions EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, inter alia, the requirement 
that states have a program to regulate minor new sources. Thus, EPA 
evaluates whether the state has an EPA-approved minor new source review 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review of each and every provision of a state's existing minor source 
program (i.e., already in the existing SIP) for compliance with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is

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necessarily the appropriate type of action in which to address possible 
deficiencies in a state's existing SIP. These issues include: (i) 
Existing provisions related to excess emissions from sources during 
periods of startup, shutdown, or malfunction that may be contrary to 
the CAA and EPA's policies addressing such excess emissions (``SSM''); 
(ii) existing provisions related to ``director's variance'' or 
``director's discretion'' that may be contrary to the CAA because they 
purport to allow revisions to SIP-approved emissions limits while 
limiting public process or not requiring further approval by EPA; and 
(iii) existing provisions for PSD programs that may be inconsistent 
with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 
FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(``NSR Reform''). Thus, EPA believes it may approve an infrastructure 
SIP submission without scrutinizing the totality of the existing SIP 
for such potentially deficient provisions and may approve the 
submission even if it is aware of such existing provisions.\14\ It is 
important to note that EPA's approval of a state's infrastructure SIP 
submission should not be construed as explicit or implicit re-approval 
of any existing potentially deficient provisions that relate to the 
three specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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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.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    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 implementation 
plan is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport, or to otherwise comply with the CAA.\15\ 
Section 110(k)(6) authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\16\ 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.\17\
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    \15\ 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).
    \16\ 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).
    \17\ 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 
the sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Kentucky's infrastructure submission addresses the provisions of 
sections 110(a)(1) and (2) in Kentucky Administrative Regulations 
(KAR), Title 401, and Kentucky Revised Statutes (KRS) as described 
below.
    1. 110(a)(2)(A): Emission Limits and Other Control Measures: 
Section 110(a)(2)(A) requires that each implementation plan include 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), as well as schedules and 
timetables for compliance, as may be necessary or appropriate to meet 
the applicable requirements. Kentucky's infrastructure SIP submission 
lists several regulations as relevant to air quality control 
regulations in KAR 50 to 52. Specifically, Regulation 50:010-066 deal 
with general administrative procedures. Emission limits and other 
control measures, means, and techniques as well as schedules and 
timetables for the 2010 1-hour NO2 NAAQS are found in 
Regulation 51, Attainment and Maintenance of the National Ambient Air 
Quality Standards, and Regulation 52, Permits, Registrations, and 
Prohibitory Rules. EPA has made the preliminary determination that the 
cited provisions are adequate to protect the 2010 1-hour NO2 
NAAQS in the Commonwealth.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at

[[Page 41493]]

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\
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    \18\ On June 12, 2015, EPA published 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.'' See 80 FR 33840.
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    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. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. 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. KRS 
22:10-100, and KAR 50:050, 51:017 and 052, and 53:005 and 010, provide 
KDAQ with the authority to collect and disseminate information relating 
to air quality and pollution and the prevention, control, supervision, 
and abatement thereof. 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 state's ambient monitors and auxiliary 
support equipment.\19\ On July 1, 2015, Kentucky submitted its 
monitoring network plan to EPA, and on October 28, 2015, EPA approved 
this plan. Kentucky's approved monitoring network plan can be accessed 
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0767. 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 2010 1-hour NO2 NAAQS.
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    \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 of Control Measures and for 
Construction or Modification of Stationary Sources: 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). EPA approved the PSD component in a previous action and 
will act on state-wide regulation of new and modified minor sources and 
minor modifications of major sources in a separate action. Today's 
action on element C is solely on enforcement.
    Enforcement: KDAQ's approved SIP Regulation 50:060, Enforcement, 
provides for enforcement of emission limits and control measures and 
construction permitting for new or modified stationary sources. EPA has 
made the preliminary determination that Kentucky's SIP is adequate for 
insuring compliance with the applicable requirements relating to 
enforcement for section 110(a)(2)(C) for the 2010 1-hour NO2 
NAAQS.
    Preconstruction PSD Permitting for Major Sources: With respect to 
Kentucky's April 26, 2013, infrastructure SIP submission related to the 
PSD permitting requirements for major sources of section 110(a)(2)(C), 
EPA took final action to approve these provisions for the 2010 1-hour 
NO2 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 preconstruction program that regulates emissions of the 2010 1-
hour NO2 NAAQS. EPA is not proposing any action in this 
rulemaking related to the regulation of minor sources and minor 
modifications under section 110(a)(2)(C) and will consider these 
requirements in relation to Kentucky's 2010 1-hour NO2 NAAQS 
infrastructure submission in a separate rulemaking.
    4. 110(a)(2)(D)(i) Interstate Pollution Transport: 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'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because Kentucky's 2010 1-hour NO2 NAAQS infrastructure 
submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to Kentucky's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took 
final action to approve Kentucky's April 26, 2013, infrastructure SIP 
submission regarding prong 3 of D(i) for the 2010 1-hour NO2 
NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to visibility protection in other states of section 
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in 
relation to Kentucky's 2010 1-hour NO2 NAAQS infrastructure 
submission in a separate rulemaking.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: With respect to 110(a)(2)(D)(ii), 
Regulation 52:100, Section 6, Public, Affected State, and U.S. EPA 
Review, outlines how Kentucky will notify neighboring states of 
potential impacts from new or modified sources. EPA is unaware of any 
pending obligations for the Commonwealth of Kentucky pursuant to 
sections 115 or 126 of the CAA. EPA has made the preliminary 
determination that Kentucky's SIP and practices are adequate for 
insuring compliance with the applicable requirements relating to 
interstate and international pollution abatement for the 2010 1-hour 
NO2 NAAQS.

[[Page 41494]]

    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
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 sections 110(a)(2)(E). 
EPA's rationale for today's proposals respecting each section of 
110(a)(2)(E) is described in turn below.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), 
Kentucky's infrastructure SIP submission describes that KRS 224:10-100, 
Powers and Duties of the Cabinet, and KAR 50:038, Air Emissions Fees, 
provide KDAQ with the authority to accept and administer laws and 
grants from the federal government and from other sources, public and 
private, for carrying out any of its functions, including its 
responsibility to implement its SIP. As evidence of the adequacy of 
KDAQ's resources, EPA submitted a letter to Kentucky on March 12, 2015, 
outlining section 105 grant commitments and the current status of these 
commitments for fiscal year 2014. The letter EPA submitted to Kentucky 
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2014-0767. 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 
2014 therefore Kentucky's grants were finalized. EPA has made the 
preliminary determination that Kentucky has adequate resources and 
authority for implementation of the 2010 1-hour NO2 NAAQS.
    Section 110(a)(2)(E)(ii) requires that states comply with section 
128 of the CAA. Section 128 of the CAA requires that states include 
provisions in their SIP to address conflicts of interest for state 
boards or bodies that oversee CAA permits and enforcement orders and 
disclosure of conflict of interest requirements. Specifically, CAA 
section 128(a)(1) necessitates that each SIP shall require that at 
least a majority of any board or body which approves permits or 
enforcement orders shall be subject to the described public interest 
service and income restrictions therein. Subsection 128(a)(2) requires 
that the members of any board or body, or the head of an executive 
agency with similar power to approve permits or enforcement orders 
under the CAA, shall also be subject to conflict of interest disclosure 
requirements. 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 Secretary of the KDAQ. 
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), KDAQ's 
SIP has been updated. On October 3, 2012, EPA finalized approval of 
Kentucky's July 17, 2012, SIP revision requesting incorporation of KRS 
11A.020, 11A.030, 11A.040 and KRS 224.10-020 and 224.10-100 into the 
SIP to address the conflicts of interest disclosure requirements of 
section 128(a)(2). See 77 FR 60307. With the incorporation of these 
regulations into the Kentucky SIP, EPA has previously made the 
determination that the Commonwealth has adequately addressed the 
requirements of section 128(a)(2), and accordingly is proposing to 
determine that Kentucky has met the infrastructure SIP requirements of 
section 110(a)(2)(E)(ii). Therefore, EPA is proposing to approve KDAQ's 
SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) 
and (iii).
    7. 7. 110(a)(2)(F) Stationary Source Monitoring System: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i) the installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. The Kentucky infrastructure 
submission describes how the major source and minor source emission 
inventory programs collect emission data throughout the Commonwealth 
and ensure the quality of such data. Kentucky meets these requirements 
through Chapter 50 General Administrative Procedures, specifically 401 
KAR 50:050 Monitoring. 401 KAR 50:050, Section 1, Monitoring Records 
and Reporting, states that the cabinet may require a facility to 
install, use, and maintain stack gas and ambient air monitoring 
equipment and to establish and maintain records, and make periodic 
emission reports at intervals prescribed by the cabinet. 401 KAR 50:050 
Monitoring, Section 1, Monitoring, Records, and Reporting, establishes 
the requirements for the installation, use, and maintenance of stack 
gas and ambient air monitoring equipment, and authorizes the cabinet to 
require the owner or operator of any affected facility to establish and 
maintain records for this equipment and make periodic emission reports 
at intervals prescribed by the cabinet. Also, KRS 224.10-100 (23) 
requires that any person engaged in any operation regulated pursuant to 
this chapter file with the cabinet reports containing information as to 
location, size, height, rate of emission or discharge, and composition 
of any substance discharged or emitted into the ambient air or into the 
waters or onto the land of the Commonwealth, and such other information 
the cabinet may require. The monitoring data collected and records of 
operations serve as the basis for a source to certify compliance, and 
can be used by Kentucky as direct evidence of an enforceable violation 
of the underlying emission limitation or standard. Thus, EPA is unaware 
of any provision preventing the use of credible evidence in the 
Kentucky SIP.
    Additionally, 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 (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

[[Page 41495]]

2011 NEI on December 23, 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 
related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is 
proposing to approve Kentucky's infrastructure SIP submission with 
respect to section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency Powers: 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 identifies air pollution emergency 
episodes and preplanned abatement strategies as outlined in Regulation 
55:005, Significant Harm Criteria. Regulation 55:010, Episodic 
Criteria, defines pollutant concentration levels that justify the 
proclamation of an air pollutant alert, warning, or emergency while 
Regulation 55:015, Episode Declaration, authorizes KDAQ to curtail or 
reduce processes or operations that emit air pollutants whose criteria 
has been reached and are located in the affected areas for which an 
episode level has been declared. 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. In addition, KRS 224.10-
100 Powers and duties of cabinet and KRS 224.10-410 Order for 
discontinuance, abatement, or alleviation of condition or activity 
without hearing--Subsequent hearing, establish the authority for 
Kentucky's secretary to issue orders to person(s) for discontinuance, 
abatement, or alleviation of any condition or activity without hearing 
because the condition or activity presents a danger to the health or 
welfare of the people of the state, and for the cabinet to require 
adoption of any remedial measures deemed necessary. EPA has made the 
preliminary determination that Kentucky's SIP, and state laws are 
adequate for emergency powers related to the 2010 1-hour SO2 
NAAQS. EPA has made the preliminary determination that Kentucky's SIP 
and practices are adequate for emergency powers related to the 2010 1-
hour NO2 NAAQS. Accordingly, EPA is proposing to approve 
Kentucky's infrastructure SIP submissions with respect to section 
110(a)(2)(G).
    9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in 
summary, requires each SIP to provide for revisions of such plan (i) as 
may be necessary to take account of revisions of such national primary 
or secondary ambient air quality standard or the availability of 
improved or more expeditious methods of attaining such standard, and 
(ii) whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. KDAQ has the authority for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in Kentucky, as indicated in Regulations 51.010, Attainment 
Status Designations, 53.005, General Provisions, and 53:010, Ambient 
Air Quality Standards. KDAQ has 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. It also has 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. 
Kentucky does not have any nonattainment areas for the 2010 1-hour 
NO2 NAAQS but has made an infrastructure submission for this 
standard, which is the subject of this rulemaking. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
demonstrate a commitment to provide future SIP revisions related to the 
2010 1-hour NO2 NAAQS when necessary.
    10. 110(a)(2)(J) Consultation With Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve Kentucky's infrastructure SIP submission for the 2010 1-hour 
NO2 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 
requirements of part C of the Act. 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 April 26, 2013, 2010 1-hour NO2 NAAQS 
infrastructure SIP for these requirements on March 18, 2015. See 80 FR 
14019. EPA's rationale for its proposed action regarding applicable 
consultation requirements of section 121, the public notification 
requirements of section 127, and visibility protection requirements is 
described below.
    110(a)(2)(J) (121 Consultation)--Consultation With Government 
Officials: 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. Regulations 50:065, Conformity of General Federal 
Actions, 50:066, Conformity of Transportation Plans, Programs, and 
Projects, as well as Kentucky's Regional Haze Implementation Plan 
(which allows 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. Kentucky 
adopted state-wide consultation procedures for the implementation of 
transportation conformity. Implementation of transportation conformity 
as outlined in the consultation procedures requires KDAQ to consult 
with Federal, state and local transportation and air quality agency 
officials on the development of motor vehicle emissions budgets for the 
SIP. EPA has made the preliminary determination that Kentucky's SIP and 
practices adequately demonstrate consultation with government officials 
related to the 2010 1-hour NO2 NAAQS when necessary.
    110(a)(2)(J) (127 Public Notification)--Public Notification: These 
requirements are met through Regulation 55:015, Episode Declaration, 
which requires that KDAQ notify the public of any air pollution alert, 
warning, or emergency. The KDAQ Web site also provides air quality 
summary data, air quality index reports and links to more information 
regarding public awareness of measures that can prevent such 
exceedances and of ways in which the public can participate in 
regulatory and other efforts to improve air quality. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
demonstrate the Commonwealth's ability to provide public notification 
related to the 2010 1-hour NO2 NAAQS when necessary. 
Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP 
submission with respect to section 110(a)(2)(J) public notification.
    110(a)(2)(J)--Visibility Protection: EPA's 2013 Guidance notes that 
it does

[[Page 41496]]

not 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, there are no newly 
applicable visibility protection obligations after the promulgation of 
a new or revised NAAQS. Thus, EPA has determined that states do not 
need to address the visibility component of 110(a)(2)(J) in 
infrastructure SIP submittals. As such, EPA has made the preliminary 
determination that it does not need to address the visibility 
protection element of section 110(a)(2)(J) in Kentucky's infrastructure 
SIP submission related to the 2010 1-hour NO2 NAAQS.
    11. 110(a)(2)(K) Air Quality and 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 EPA can be 
made. KAR 50:040, Air Quality Models, incorporates by reference 40 CFR 
52.21, which specifies that air modeling be conducted in accordance 
with 40 CFR part 51, Appendix W ``Guideline on Air Quality Models. KRS 
224.10-100(4) authorizes KDAQ to develop and conduct a comprehensive 
program for management of air resources in the Commonwealth. These 
provisions demonstrate that Kentucky has the authority to perform air 
quality modeling and provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 2010 1-hour 
NO2 NAAQS. Additionally, Kentucky participates in a regional 
effort to coordinate the development of emissions inventories and 
conduct regional modeling for NOX, which includes 
NO2. Taken as a whole, Kentucky's air quality regulations 
demonstrate that KDAQ has the authority to provide relevant data for 
the purpose of predicting the effect on ambient air quality of the 1-
hour NO2 NAAQS. EPA has made the preliminary determination 
that Kentucky's SIP and practices adequately demonstrate the 
Commonwealth's ability to provide for air quality and modeling, along 
with analysis of the associated data, related to the 2010 1-hour 
NO2 NAAQS when necessary.
    12. 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.
    Funding for the Kentucky air permit program comes from a processing 
fee, submitted by permit applicants, required by KAR 50:038, Air 
Emissions Fee, and KRS 224.20-050, Fee for Administration of Air 
Quality Program. KDAQ ensures this is sufficient for the reasonable 
cost of reviewing and acting upon PSD and NNSR. Additionally, Kentucky 
has a fully approved title V operating permit program at KAR 52:20 \20\ 
that cover the cost of implementation and enforcement of PSD and NNSR 
permits after they have been issued. EPA has made the preliminary 
determination that Kentucky's SIP and practices adequately provide for 
permitting fees related to the 2010 NO2 NAAQS, when 
necessary. Accordingly, EPA is proposing to approve Kentucky's 
infrastructure SIP submission with respect to section 110(a)(2)(L).
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    \20\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 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. Chapter 77 of KRS, Air Pollution Control, and 
Regulations 50:066, Conformity of Transportation Plans, Programs and 
Projects, and 52:100, Public, Affected State, and U.S. EPA Review, 
authorize KDAQ to cooperate, consult, 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.'' Furthermore, KDAQ has demonstrated consultation with, and 
participation by, affected local entities through its work with local 
political subdivisions during the developing of its Transportation 
Conformity SIP and Regional Haze Implementation Plan. EPA has made the 
preliminary determination that Kentucky's SIP and practices adequately 
demonstrate consultation with affected local entities related to the 
2010 1-hour NO2 NAAQS when necessary.

V. Proposed Action

    With the exception of the preconstruction PSD permitting 
requirements for major sources of section 110(a)(2)(C), prong 3 of 
(D)(i), and (J), the interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance in other 
states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), 
and the regulation of minor sources and minor modifications under 
section 110(a)(2)(C), EPA is proposing to approve that Kentucky's April 
26, 2013, infrastructure SIP submission for the 2010 1-hour 
NO2 NAAQS has met the above-described infrastructure SIP 
requirements.

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. 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 
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 (Public Law 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);

[[Page 41497]]

     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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: June 10, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-15138 Filed 6-24-16; 8:45 am]
 BILLING CODE 6560-50-P


