[Federal Register Volume 84, Number 95 (Thursday, May 16, 2019)]
[Proposed Rules]
[Pages 22084-22087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10184]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0759; FRL-9993-72-Region 4]


Air Plan Approval; Kentucky; Interstate Transport (Prongs 1 and 
2) for the 2010 1-Hour NO2 Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
Commonwealth of Kentucky, through the Kentucky Energy and Environment 
Cabinet by a letter dated November 16, 2018, for the purpose of 
addressing the Clean Air Act (CAA or Act) ``good neighbor'' interstate 
transport (prongs 1 and 2) infrastructure SIP requirements 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, commonly referred to as an ``infrastructure SIP.'' 
Specifically, EPA is proposing to approve Kentucky's November 16, 2018, 
SIP revision addressing prongs 1 and 2 to ensure that air emissions in 
Kentucky do not significantly contribute to nonattainment or interfere 
with maintenance of the 2010 1-hour NO2 NAAQS in any other 
state.

DATES: Comments must be received on or before June 17, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2018-0759 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 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: Evan Adams of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be 
reached by phone at (404) 562-9009 or via electronic mail at 
adams.evan@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 22, 2010, EPA established 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.\1\ See 75 FR 6474

[[Page 22085]]

(February 9, 2010). This NAAQS is designed to protect against exposure 
to the entire group of nitrogen oxides (NOX). NO2 
is the component of greatest concern and is used as the indicator for 
the larger group of NOX. Emissions that lead to the 
formation of NO2 generally also lead to the formation of 
other NOX. Therefore, control measures that reduce 
NO2 can generally be expected to reduce population exposures 
to all gaseous NOX which results in a reduction in the 
formation of ozone and fine particles both of which pose significant 
public health threats. For comprehensive information on the 2010 1-hour 
NO2 NAAQS, please refer to the February 9, 2010 Federal 
Register document. See 75 FR 6474.
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    \1\ Subsequently, after careful consideration of the scientific 
evidence and information available, on April 18, 2018, EPA published 
a final action to retain the current NO2 standard at the 
2010 level of 100 ppb. This action was taken after review of the 
full body of available scientific evidence and information, giving 
particular weight to the assessment of the evidence in the 2016 
NOX Integrated Science Assessment; analyses and 
considerations in the Policy Assessment; the advice and 
recommendations of the Clean Air Scientific Advisory Committee; and 
public comments. See 83 FR 17226 (April 18, 2018).
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    Whenever EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS.\2\ This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), EPA believes that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. EPA has previously provided 
comprehensive guidance on the application of these provisions through a 
guidance document for infrastructure SIP submissions and through 
regional actions on infrastructure submissions.\3\ Unless otherwise 
noted below, EPA is following that existing approach in acting on this 
submission. In addition, in the context of acting on such 
infrastructure submissions, EPA evaluates the submitting state's SIP 
for compliance with statutory and regulatory requirements, not for the 
state's implementation of its SIP.\4\ EPA has other authority to 
address any issues concerning a state's implementation of the 
regulations that comprise its SIP.
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    \2\ States were required to submit infrastructure SIPs for the 
2010 1-hour NO2 NAAQS to EPA no later than January 22, 
2013.
    \3\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013 Infrastructure 
SIP Guidance, available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf, as well as in numerous agency actions, including EPA's prior 
action on Kentucky's infrastructure SIP to address other 110(a)(2) 
elements for the PM2.5 NAAQS entitled ``Air Plan 
Approval; Kentucky; Infrastructure Requirements for the 2012 
PM2.5 National Ambient Air Quality Standard;'' in the 
section ``What is EPA's approach to the review of infrastructure SIP 
submissions?'' See 82 FR 21751 at 21752-21755 (May 10, 2017).
    \4\ See Montana Environmental Information Center v.Thomas, 902 
F.3d 971 (9th Cir. 2018).
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    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIPs. 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 from interfering with maintenance of the NAAQS in another state 
(prong 2). EPA sometimes refers to the prong 1 and prong 2 conjointly 
as the ``good neighbor'' provision of the CAA. 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 from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (prong 3) and from interfering with 
measures to protect visibility in another state (prong 4). Section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with sections 115 and 126 of the Act, relating to interstate 
and international pollution abatement.
    EPA's most recent infrastructure SIP guidance, the September 13, 
2013, ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' did 
not explicitly include criteria for how the Agency would evaluate 
infrastructure SIP submissions intended to address section 
110(a)(2)(D)(i)(I).\5\ With respect to certain pollutants, such as 
ozone and particulate matter (PM), EPA has addressed interstate 
transport in eastern states in the context of regional rulemaking 
actions that quantify state emission reduction obligations.\6\ For 
NO2, EPA has considered available information such as 
current air quality, emissions data and trends, and regulatory 
provisions that control source emissions to determine whether emissions 
from one state interfere with the attainment or maintenance of the 
NAAQS in another state. EPA's review and proposed action on Kentucky's 
CAA section 110(a)(2)(D)(i)(I) interstate transport SIP revisions for 
the 2010 NO2 NAAQS is informed by these considerations.
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    \5\ At the time the September 13, 2013, guidance was issued, EPA 
was litigating challenges raised with respect to its Cross-State Air 
Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011), designed to 
address the CAA section 110(a)(2)(D)(i)(I) interstate transport 
requirements with respect to the 1997 ozone and the 1997 and 2006 
PM2.5 NAAQS. CSAPR was vacated and remanded by the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) in 2012 pursuant to EME Homer City Generation, L.P. v. EPA, 
696 F.3d 7. EPA subsequently sought review of the D.C. Circuit's 
decision by the Supreme Court, which was granted in June 2013. As 
EPA was in the process of litigating the interpretation of section 
110(a)(2)(D)(i)(I) at the time the infrastructure SIP guidance was 
issued, EPA did not issue guidance specific to that provision. The 
Supreme Court subsequently vacated the D.C. Circuit's decision and 
remanded the case to that court for further review. 134 S. Ct. 1584 
(2014). On July 28, 2015, the D.C. Circuit issued a decision 
upholding CSAPR, but remanding certain elements for reconsideration. 
795 F.3d 118.
    \6\ Nitrogen Oxides (NOX) SIP Call, 63 FR 57356 
(October 27, 1998); Clean Air Interstate Rule (CAIR), 70 FR 25162 
(May 12, 2005); CSAPR, 76 FR 48208 (August 8, 2011).
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    Through this proposed action, EPA is proposing to approve 
Kentucky's November 16, 2018, SIP revision addressing prong 1 and prong 
2 requirements for the 2010 1-hour NO2 NAAQS. The 
Commonwealth addressed CAA section 110(a)(2)(D)(i)(I) by providing 
information supporting its conclusion that emissions from Kentucky do 
not significantly contribute to nonattainment or interfere with 
maintenance of the 2010 1-hour NO2 NAAQS in downwind states. 
All other applicable infrastructure SIP requirements for Kentucky for 
the 2010 1-hour NO2 NAAQS have been addressed in separate 
rulemakings. See 80 FR 14019 (March 18, 2015), 81 FR 83152 (November 
21, 2016), and 84 FR 11652 (March 28, 2019).

II. What is EPA's analysis of how Kentucky addressed prongs 1 and 2?

    Kentucky concluded that the SIP adequately addresses prongs 1 and 2 
with respect to the 2010 1-hour NO2 NAAQS in its November 
16, 2018, SIP revision. Kentucky provides the following reasons for its 
determination: (1) Monitored 1-hour NO2 design values in 
Kentucky and neighboring states (Illinois, Indiana, Missouri, Ohio, 
Tennessee, and Virginia) are below the 2010 standard; (2) total 
emissions of NOX in Kentucky have trended downward from 1987 
to 2017; and (3) the SIP contains state regulations that directly or 
indirectly control NOX emissions. EPA preliminarily agrees 
with the Commonwealth's conclusion based on the rationale discussed 
below.
    First, EPA notes that there are no designated nonattainment areas 
for the 2010 1-hour NO2 NAAQS in Kentucky or the neighboring 
states. On February 17, 2012 (77 FR 9532), EPA designated

[[Page 22086]]

the entire country as ``unclassifiable/attainment'' for the 2010 1-hour 
NO2 NAAQS, stating that ``available information does not 
indicate that the air quality in these areas exceeds the 2010 [1-hour] 
NO2 NAAQS.''
    Second, the 2015-2017 NO2 design values in Kentucky and 
neighboring states are well below the 2010 1-hour NO2 NAAQS 
standard of 100 ppb.\7\ The valid, monitored 2015-2017 valid design 
values for Kentucky were 27, 30, 31, 34, 40, and 49 ppb. The highest 
monitored 2015-2017 valid design values for the neighboring states of 
Illinois, Indiana, Missouri, Ohio, Tennessee, and Virginia are 56, 44, 
49, 55, 53, and 45 ppb, respectively.\8\ The design values in Kentucky, 
and neighboring states, during this time period were 44 to 73 percent 
below the NAAQS.
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    \7\ See Figure 1 in Kentucky's submittal, which is based on the 
NO2 design value data extracted from the EPA website at 
https://www.epa.gov/air-trends/air-quality-design-values#report.
    \8\ Monitoring sites must meet the data completeness 
requirements listed in Appendix S to 40 CFR part 50 in order to have 
a valid design value. Table 1 in Kentucky's submittal did not 
include the valid design value of 49 ppb recorded at AQS ID: 21-111-
0075 in Louisville/Jefferson County or the invalid design value of 
41 recorded at monitor number 21-111-0067 in Louisville/Jefferson 
County. Table 2 in Kentucky's submittal includes all highest, valid 
design values for the neighboring states of Illinois, Indiana, 
Missouri, Ohio, Tennessee, and Virginia. These values can be found 
on EPA's air quality design value website at https://www.epa.gov/air-trends/air-quality-design-values.
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    Third, NOX emissions data shows that NOX 
emissions have continuously trended downward from the years 1987 to 
2017.\9\ For example, the point source emissions data provided by the 
Commonwealth indicates that NOX emissions for point sources 
from 2008 to 2016 has declined by approximately 57 percent.\10\ EPA 
data also confirms that NOX emissions from point sources 
from Kentucky have declined from 2008 to 2017,\11\ and NOx emissions 
from all sectors declined between 2002 and 2014.\12\
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    \9\ See Figure 1 in Kentucky's November 16, 2018 submittal.
    \10\ See Table 4 in Kentucky's submittal. The data is presented 
in the submittal from 2008-2016 to display the decline in emissions 
from the start of CAIR in 2008, and then transitioning to CSAPR in 
2011.
    \11\ See Emissions Inventory System data for Kentucky, available 
in the docket to this action.
    \12\ See 2014 National Emissions Inventory (NEI) Report, 
available at https://edap.epa.gov/public/extensions/nei_report_2014/dashboard.html#trend-db. The 2014 NEI Report is the latest available 
report.
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    Finally, Kentucky identifies the following SIP-approved regulations 
that directly or indirectly control NOX emissions: 401 KAR 
50:055--General compliance requirements; 401 KAR 50:060--Enforcement; 
401 KAR 51:001--Definitions for 401 KAR Chapter 51; 401 KAR 51:005--
Purpose and general provisions; 401 KAR 51:010--Attainment status 
designations; 401 KAR 51:017--Prevention of significant deterioration 
of air quality; 401 KAR 51:052--Review of new sources in or impacting 
upon attainment areas; 401 KAR 51:150--NOX requirements for stationary 
internal combustion engines; 401 KAR 51:170--NOX requirements for 
cement kilns; 401 KAR 52:030--Federally-enforceable permits for non-
major sources; 401 KAR 52:100--Public, affected state, and US EPA 
review; 401 KAR 53:005--General provisions; 401 KAR 53:010--Ambient air 
quality standards; 401 KAR 59:001--Definitions for abbreviations of 
terms used in the Title 401, Chapter 59; 401 KAR 59:005--General 
provisions; 401 KAR 59:015--New indirect heat exchangers; 401 KAR 
61:001--Definitions for abbreviations of terms used in the Title 401, 
Chapter 61; 401 KAR 61:005--General provisions; 401 KAR 61:015--
Existing indirect heat exchangers; and 401 KAR 61:065--Existing nitric 
acid plants.
    Kentucky also identified state-only provisions as additional 
regulations that the Commonwealth is implementing that provide for the 
control of NOX emissions: 401 KAR 52:060--Acid rain permits; 
401 KAR 51:240--Cross-State Air Pollution Rule (CSAPR) \13\ NOX annual 
trading program; 401 KAR 51:250--Cross-State Air Pollution Rule (CSAPR 
Update) \14\ NOX ozone season group 2 trading program.\15\ EPA notes 
that the CSAPR and Update rule were established to address transport 
for the ozone (1997 and 2008) and fine particulate matter (1997 and 
2006) standards, however, the trading programs may yield residual 
NOX emissions reduction benefits.\16\ Further, Kentucky 
identifies the following provisions where limited portions have been 
approved into the SIP: 401 KAR 52:020--Title V permits; 401 KAR 
52:040--State-origin permits; and 401 KAR 52:070--Registration of 
designated sources.
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    \13\ See 76 FR 48208.
    \14\ See 81 FR 74504.
    \15\ The EPA notes that Kentucky submitted a SIP revision for 
401 KAR 51.240, 401 KAR 51.250, and 401 KAR 51.260 on September 17, 
2018 to the EPA to adopt the CSAPR and Update trading programs into 
their SIP.
    \16\ Kentucky further included existing national rules that are 
designed to reduce emissions from on-road and off-road vehicles 
through the year 2025 and beyond. This information can be found in 
Kentucky's submittal.
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    For the reasons discussed above, EPA has preliminarily determined 
that Kentucky does not contribute significantly to nonattainment or 
interfere with maintenance of the 2010 1-hour NO2 NAAQS in 
any other state, and that Kentucky's SIP includes adequate provisions 
to prevent emissions sources within the Commonwealth from significantly 
contributing to nonattainment or interfering with maintenance of this 
standard in any other state.

III. Proposed Action

    As described above, EPA is proposing to approve Kentucky's November 
16, 2018, SIP revision addressing prongs 1 and 2 of CAA section 
110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. This action merely 
proposes to approve 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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);

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     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.

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

    Dated: May 6, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-10184 Filed 5-15-19; 8:45 am]
 BILLING CODE 6560-50-P


